Amicus Curiae Brief — Joseph Gamboa, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 23-323

In the

Supreme Court of the United States

JOSEPH GAMBOA,

Petitioner,

v.

BOBBY LUMPKIN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fifth Circuit

BRIEF OF HABEAS SCHOLARS AS AMICI

CURIAE SUPPORTING PETITIONER

Ayyan S. Zubair

A llen & Overy LLP

1221 6th Avenue

New York, NY 10020

October 30, 2023

324365

James P. Gagen

Counsel of Record

A lan M. Billharz

Megan M. Ines

A llen & Overy LLP

1101 New York Avenue, NW

Washington, DC 20005

(202) 683-3896

james.gagen@allenovery.com

Counsel for Amici Curiae

A

(800) 274-3321 • (800) 359-6859

i

CAPITAL CASE

QUESTION PRESENTED

Whether a Rule 60(b) motion alleging attorney

abandonment must always be recharacterized as a second

or successive habeas petition under Gonzalez v. Crosby,

545 U.S. 524 (2005).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

AT TORNEY A BA NDONMENT

UNDERMINES THE INTEGRITY OF

FEDERAL HABEAS PROCEEDINGS . . . . . . 2

II. A T T O R N E Y A B A N D O N M E N T

SEVERS THE PRINCIPAL-AGENT

RELATIONSHIP . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. CONSISTENT WITH GONZALEZ, POSTJUDGMENT MOTIONS ALLEGING

AT TORNEY A BA NDONMENT

SHOULD BE CONSIDERED UNDER

RULE 60(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

TABLE OF APPENDICES

Page

APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Banister v. Davis,

140 S. Ct. 1698 (2020) . . . . . . . . . . . . . . . . . . . . 5, 10, 11

Barnett v. Roper,

904 F.3d 623 (8th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 11

Brown v. Davenport,

596 U.S. 118 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Coleman v. Thompson,

501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Crutsinger v. Davis,

929 F.3d 259 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 11

Gamboa v. Davis,

782 Fed. Appx. 297 (5th Cir. 2019) . . . . . . . . . . 3, 5, 10

Gonzalez v. Crosby,

545 U.S. 524 (2005) . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 11

Harbison v. Bell,

556 U.S. 180 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Harrington v. Richter,

562 U.S. 86 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Harris v. United States,

367 F.3d 74 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . 7, 12

v

Cited Authorities

Page

Holland v. Florida,

560 U.S. 631 (2010) . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 13

Klapprott v. United States,

335 U.S. 601 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mackey v. Hoffman,

682 F.3d 1247 (9th Cir. 2012) . . . . . . . . . . . . . . . . . 7, 13

Maples v. Thomas,

565 U.S. 266 (2012) . . . . . . . . . . . . . . . . . . . . . 4, 7, 8, 12

Martel v. Clair,

565 U.S. 648 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12

Martinez v. Ryan,

566 U.S. 1 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

McFarland v. Scott,

512 U.S. 849 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Murray v. Carrier,

477 U.S. 478 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In re Pickard,

681 F.3d 1201 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . 11

Ramirez v. United States,

799 F.3d 845 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 13

vi

Cited Authorities

Page

Rodriguez v. Mitchell,

252 F.3d 191 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . 11,12

Shinn v. Ramirez,

596 U.S. 366 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Steel Co. v. Citizens for Better Environment,

523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Trevino v. Thaler,

569 U.S. 413 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Walker v. Martin,

562 U.S. 307 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. Taylor,

529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES

18 U.S.C. § 3599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 3599(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 3599(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

18 U.S.C. § 3599(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3599(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vii

Cited Authorities

Page

28 U.S.C. § 2244(b) . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, 12

28 U.S.C. § 2244(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 2244(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 2254(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 2254(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A nt i –D r ug A buse Act , P ub. L . 10 0 - 6 9 0,

102 Stat. 4181 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

USA Patriot Improvement and Reauthorization

Act of 2005, Pub.L. 109-177, 120 Stat. 192

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

OTHER AUTHORITIES

Ru les G over n i ng S ect ion 2 2 5 4 Ca ses

(Habeas Rule 12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

Cited Authorities

Page

Fed. R. Civ. P. 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Fed. R. Civ. P. 60(b) . . . . . . . . . . . . . . . . . 1, 2, 9, 10, 11, 12

Fed. R. Civ. P. 60(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Fed. R. Civ. P. 81(a)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Restatement (Second) of Agency § 112 (1958) . . . . . . . . 6

Restatement (Second) of Agency § 242 (1958) . . . . . . . . 6

1

INTEREST OF AMICI CURIAE

Amici curiae, listed in the Appendix, are law professors

and legal scholars who study federal postconviction law

and civil procedure. Amici curiae have no personal interest

in the outcome of this case. They all share an interest

in seeing habeas law applied in a way that ensures the

just and timely adjudication of claims while preserving

the intended operation of the Federal Rules of Civil

Procedure and the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996) (“AEDPA”).1

SUMMARY OF ARGUMENT

A Rule 60(b) motion is not a successive habeas petition

when the motion attacks a defect in the integrity of the

federal habeas proceeding. Attorney abandonment is just

such a defect, with pervasive impact on the integrity of

federal habeas proceedings. Joseph Gamboa’s Petition for

Writ of Certiorari should be granted.

ARGUMENT

Persons seeking habeas corpus relief often make

post-judgment motions. In some circumstances, those

1. In accordance with Supreme Court Rule 37.6, Amici

state that no counsel for a party authored this brief in any part, and

that no person or entity, other than Amici and their counsel, made

a monetary contribution to fund its preparation and submission.

Pursuant to Supreme Court Rule 37.2, Amici provided counsel of

record for all parties timely notice of the intent to file this brief

and no counsel of record for any party communicated any objection

to this filing.

2

motions have posed characterization questions for federal

courts, such as the question posed by Joseph Gamboa’s

Petition: When does a motion under Federal Rule of Civil

Procedure 60(b) qualify as a successive habeas petition

under 28 U.S.C. § 2244(b)?

In Gonzalez v. Crosby, 545 U.S. 524 (2005), this Court

made clear that a Rule 60(b) motion is not a successive

habeas petition when the motion attacks a “defect in the

integrity” of the federal habeas proceeding. In keeping

with Gonzalez and its progeny, a post-judgment motion

alleges a defect in the integrity of a habeas proceeding

when it attacks a flaw that prevented the district court

from addressing or reliably adjudicating the substantive

merits of some claim. Amici submit this brief to explain

why attorney abandonment is such a defect. In cases

where habeas claimants allege attorney abandonment,

a district court might still, of course, ultimately deny

post-judgment relief under Rule 60(b) after considering

the facts and circumstances of the motion. However, the

district court should analyze a claimant’s entitlement to

such relief under Rule 60(b) of the Federal Rules of Civil

Procedure, not under 28 U.S.C. § 2244(b).

I.

ATTORNEY ABANDONMENT UNDERMINES

THE INTEGRITY OF FEDERAL HABEAS

PROCEEDINGS.

Congress has mandated the appointment of “one or

more” federally funded attorneys with relevant experience

to represent any “defendant who is or becomes financially

unable to obtain adequate representation” in death penalty

cases, including federal habeas proceedings. 18 U.S.C.

§ 3599(a)(1), (2); see also Martel v. Clair, 565 U.S. 648, 659

(2012) (capital habeas petitioners “receive counsel as a

3

matter of right, not an exercise of the court’s discretion”).

Congress enacted this statutory right first in 1988. See

Anti–Drug Abuse Act, Pub. L. 100-690, 102 Stat. 4181,

4393–94 (1988). Through AEDPA in 1996, and again in

2006, Congress recodified the right to counsel for indigent

defendants in capital habeas proceedings. AEDPA, 110 Stat.

at 1318; USA Patriot Improvement and Reauthorization Act

of 2005, Pub. L. 109-177, 120 Stat. 192, 231-32 (2006).

In enacting the right to counsel multiple times,

Congress has recognized the essential role that counsel

plays in ensuring the reliability of capital habeas

judgments. Indeed, Congress went further, authorizing

additional counsel for death-sentenced prisoners based on

“the seriousness of the possible penalty” and “the unique

and complex nature of the litigation.” 18 U.S.C. § 3599(d).

District courts must “ensure that [a] defendant’s statutory

right to counsel was satisfied throughout the litigation,”

including all available postconviction proceedings, such

that the court must “appoint new counsel if the first lawyer

developed a conflict with or abandoned the client.” Martel,

565 U.S. at 661; see 35 U.S.C. § 3599(e).

Clients abandoned by counsel, especially in capital

cases, are denied meaningful access to federal habeas

corpus. 2 To make a viable case for federal habeas corpus

2.  T he facts relevant to Joseph Gamboa’s attor ney

abandonment claim are not in dispute here. His court-appointed

counsel filed a federal habeas petition containing seven claims,

cut and pasted from another, already-denied habeas petition,

presenting generic, legally-foreclosed challenges to the Texas

death penalty scheme. In response to the State’s Answer, counsel

then filed an untimely Reply conceding that all claims were

foreclosed by long-established precedent. See Gamboa v. Davis,

782 Fed. Appx. 297, 298-99 (5th Cir. 2019).

4

relief, counsel must perform a prompt and thorough

factual investigation, engaging with the trial and state

postconviction records and, in some circumstances,

facts outside the four corners of the state court record.

McFarland v. Scott, 512 U.S. 849, 855 (1994); see also

Trevino v. Thaler, 569 U.S. 413, 423–25 (2013); Martinez

v. Ryan, 566 U.S. 1, 11–12 (2012). Counsel must conduct

legal research to support cognizable claims, and then draft

a petition setting forth the facts and the clearly established

federal law supporting those claims. Counsel must also

analyze and explain why the state court’s resolution of

the claims was objectively unreasonable under 28 U.S.C.

§ 2254(d)(1) and/or (2), and prejudicial; or, if the claims

were not presented to the state courts, why there is

potentially “cause and prejudice” excusing the procedural

default. See generally Brown v. Davenport, 596 U.S. 118

(2022); Shinn v. Ramirez, 596 U.S. 366 (2022); Harrington

v. Richter, 562 U.S. 86 (2011); Williams v. Taylor, 529

U.S. 362 (2000).

Navigating the complex web of federal habeas practice

and procedure is virtually always beyond the capabilities

of a pro se death row inmate. See McFarland, 512 U.S.

at 855–56 (“The complexity of our jurisprudence in this

area ... makes it unlikely that capital defendants will be

able to file successful petitions for collateral relief without

the assistance of persons learned in the law.”) (citations

omitted). Even meritorious claims can fail due to an

inability to satisfy the high demands on petitioners set

forth above. Indeed, an abandoned habeas petitioner such

as Joseph Gamboa is often worse off than a petitioner who

never had an attorney at all, as an abandoned petitioner

continues to act in reasonable reliance on an attorney

who no longer acts on his behalf. See Maples v. Thomas,

5

565 U.S. 266, 288–89 (2012). For example, an abandoned

client may lose precious time during the AEDPA one-year

limitations period based on his reasonable expectation

that an attorney is investigating his case while he remains

incarcerated. See Holland v. Florida, 560 U.S. 631, 636

(2010). Or, as here, an abandoned client may be unaware

that counsel filed and then conceded unviable, boilerplate

habeas claims, reasonably expecting that his attorney had

developed and presented claims based on and relevant to

the facts of his case. Gamboa, 782 Fed. Appx. at 298–99.

Attorney abandonment therefore undermines a

statutory right and creates a risk to the system: If the

merits of an abandoned habeas petitioner’s claims are

never actually presented to the reviewing court, the

petitioner is not provided the “one fair opportunity” to seek

relief that is core to the habeas process itself. Banister

v. Davis, 140 S. Ct. 1698, 1702 (2020). “By providing

indigent capital defendants with a mandatory right to

qualified legal counsel in these proceedings, Congress has

recognized that federal habeas corpus has a particularly

important role to play in promoting fundamental fairness

in the imposition of the death penalty.” McFarland, 512

U.S. at 859; see also Harbison v. Bell, 556 U.S. 180, 194

(2009) (“[I]t is entirely plausible that Congress did not

want condemned men and women to be abandoned by

their counsel at the last moment and left to navigate the

sometimes labyrinthine clemency process from their jail

cells.”).

Granting the Petition for Writ of Certiorari and

clarifying that attorney abandonment is a defect in the

integrity of habeas proceedings would be consistent with

AEDPA and contribute to the efficacy and efficiency of

6

federal habeas proceedings as a truth-seeking process.

As shown by Joseph Gamboa’s case, the issue with

attorney abandonment is not the quality or effectiveness

of an attorney’s presentation of a petitioner’s claims; the

issue is that the merits of a petitioner’s claims were never

presented or adjudicated at all.

II. ATTORNEY ABANDONMENT SEVERS THE

PRINCIPAL-AGENT RELATIONSHIP.

In application, abandonment is a narrow category of

attorney misconduct. Simple attorney inadvertence or

negligence is insufficient—a petitioner must “bear the

risk” for such errors. Coleman v. Thompson, 501 U.S.

722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478,

488 (1986)); see Restatement (Second) of Agency § 242

(1958) (principal liable for harms “within the scope” of the

agent’s employment). In contrast, attorney abandonment

requires conduct so egregious that it effectively severs the

principal-agent relationship—“under agency principles, a

client cannot be charged with the acts or omissions of an

attorney who has abandoned him.” Maples, 565 U.S. at 283;

see Restatement (Second) of Agency § 112 (1958) (“Unless

otherwise agreed, the authority of an agent terminates if,

without knowledge of the principal, he acquires adverse

interests or if he is otherwise guilty of a serious breach

of loyalty to the principal.”).

Wherever this Court ultimately draws the line, an

attorney who failed to bring his independent legal judgment

to bear in the identification, selection, and pleading of

claims based on the individual facts of his client’s case has

abandoned his client. An attorney abandons his client when

he ceases to act, through express abdication or persistent

7

neglect, as the client’s agent “in any meaningful sense of

that word.” Maples, 565 U.S. at 282 (quoting Holland, 560

U.S. at 659 (Alito, J. concurring)). In those circumstances,

the attorney’s actions have effectively deprived the client

of legal representation and denied him opportunity to be

heard. See, e.g., Harris v. United States, 367 F.3d 74, 77

(2d Cir. 2004); Mackey v. Hoffman, 682 F.3d 1247, 1253

(9th Cir. 2012).

This Court has already provided guidance for district

courts to use in determining when post-judgment motions

identify attorney abandonment. For example, in Holland,

this Court held that federal habeas counsel’s “failure

to satisfy professional standards of care” constitutes

an “extraordinary circumstance” warranting equitable

tolling of AEDPA’s one-year statutory limitations period.

Holland, 560 U.S. at 649; see 28 U.S.C. § 2244(d). The

Court rejected an “overly rigid per se approach” in favor of

a fact dependent approach rooted in traditional equitable

principles. Holland, 560 U.S. at 653. The Court further

explained that while “a ‘garden variety claim’ of attorney

negligence” is insufficient, equitable tolling is warranted

where counsel’s “failures seriously prejudiced a client

who thereby lost what was likely his single opportunity

for federal habeas review of the lawfulness of his

imprisonment and of his death sentence.” Id. at 652–53; see

id. at 660 (Alito, J. concurring) (faulting circuit court for

failing to “consider petitioner’s abandonment argument”).

As the Court noted in Maples, Justice Alito’s concurrence

“homed in on the essential difference between a claim of

attorney error, however egregious, and a claim that an

attorney had essentially abandoned his client”—counsel’s

“near-total failure to communicate with” or “respond to”

petitioner. Maples, 565 U.S. at 282 (citing Holland, 560

U.S. at 659 (Alito, J. concurring)).

8

In Maples, this Court recognized that attorney

abandonment may constitute sufficient cause to excuse

procedural default in federal habeas proceedings. Maples,

565 U.S. at 271; see also Walker v. Martin, 562 U.S. 307,

316 (2011) (procedural default bars claims in federal habeas

proceedings “absent showings of ‘cause’ and ‘prejudice’”).

The Court concluded that “no just system would lay the

default at Maples’ death-cell door.” Maples, 565 U.S. at

271. The Court explained that, while “[n]egligence on

the part of a prisoner’s postconviction attorney does

not qualify as ‘cause’” based on well-established agency

principles, those same principles compelled a finding of

cause in cases of attorney abandonment. Id. at 280–81

(citing Coleman, 501 U.S. at 753). “Having severed the

principal-agent relationship, an attorney no longer acts,

or fails to act, as the client’s representative.” Id. at 281.

While many post-judgment allegations of attorney

error or omission may be successive petitions under

28 U.S.C. § 2244(b), true attorney abandonment is an

egregious and extraordinary circumstance that constitutes

a defect in the integrity of habeas proceedings. See 18

U.S.C. § 3599(a)(2); Martel, 565 U.S. at 659 (18 U.S.C.

§ 3599 and related provisions “reflec[t] a determination

that quality legal representation is necessary in all

capital proceedings to foster fundamental fairness in

the imposition of the death penalty.”) (internal quotation

marks omitted); Maples, 565 U.S. at 289 (abandonment

is an “extraordinary circumstance[e] quite beyond

[petitioner’s] control”).

9

III. C ON SI ST EN T W I T H G ONZ A L EZ , PO STJUDGMENT MOTIONS ALLEGING ATTORNEY

ABANDONMENT SHOULD BE CONSIDERED

UNDER RULE 60(b).

Like other parties in federal court, habeas petitioners

often file post-judgment motions under Rules 59 or 60 of

the Federal Rules of Civil Procedure seeking to alter,

amend, or obtain relief from judgment. That is because

federal habeas proceedings are governed by the Federal

Rules of Civil Procedure “to the extent that they are not

inconsistent with” AEDPA or other statutory provisions.

Rules Governing Section 2254 Cases (Habeas Rule 12);

see also Fed. R. Civ. P. 81(a)(4)(A) (“These rules apply

to proceedings for habeas corpus … to the extent that

the practice in those proceedings[] is not specified in a

federal statute, the Rules Governing Section 2254 Cases,

or the Rules Governing Section 2255 Cases ….”). Rule

60(b) coexists with 28 U.S.C. § 2244(b), which restricts

the ability of federal petitioners to relitigate or bring

new claims in “second or successive” petitions unless the

requirements of 28 U.S.C. § 2244(b)(2)(B) are present,

and a court of appeals pre-authorizes a district court’s

consideration of those claims. See 28 U.S.C. § 2244(b).

In Gonzalez, this Court recognized that Rule

60(b) of the Federal Rules of Civil Procedure “has an

unquestionably valid role to play in habeas cases” and set

forth a framework for district courts to use in analyzing

whether post-judgment motions seeking relief from

judgment are Rule 60(b) motions or “second or successive”

habeas petitions under § 2244(b). Gonzalez, 545 U.S.

at 534. Under Gonzalez, district courts analyze a postjudgment motion under Rule 60(b) “when [it] attacks,

10

not the substance of the federal court’s resolution of a

claim on the merits, but some defect in the integrity of

the federal habeas proceedings.” Id. at 532; id. at 532 n.4

(observing that a claimant does not challenge a claim on

the merits “when he merely asserts that a previous ruling

which precluded a merits determination was in error—for

example, a denial for such reasons as failure to exhaust,

procedural default, or statute-of-limitations bar”).

The distinction in Gonzalez is between Rule 60(b)

motions that are “merits-based,” and therefore a

successive petition, and those that are “integrity-based,”

and therefore judicially cognizable. Banister, 140 S.

Ct. at 1709 n.7; see also id. at 1718 (Alito, J. dissenting)

(A Rule 60(b) motion “challeng[ing] ‘a nonmerits aspect of

the first federal habeas proceeding”’ is “not the equivalent

of a habeas claim. It does not assert a federal basis for

relief from the state-court judgment; rather, it seeks to

cure a ‘defect’ in the federal habeas proceeding itself.”).

Under this framework, a post-judgment allegation of

attorney abandonment is an integrity-based challenge

properly considered under Rule 60(b) because it does not

attack the merits of the district court’s judgment; instead,

it attacks a flaw that prevented the district court from

reliably adjudicating—or addressing at all—the merits

of the petitioner’s claim. See Sec. I., supra. Authorizing

district courts in the Fifth Circuit to hear post-judgment

allegations of attorney abandonment such as the one made

by Joseph Gamboa would be consistent with this Court’s

precedent, and the holdings of other circuit courts. See

Gamboa, 782 Fed. Appx. at 301 (Dennis, J. concurring) (“a

Rule 60(b) motion alleging abandonment by counsel can,

at least in some instances, attack a defect in the integrity

of the habeas proceedings”).

11

Gonzalez itself confirmed that a Rule 60(b) motion

should be used consistent with its role in federal proceedings

to address procedural errors and fundamental flaws, such

as a fraud on the federal habeas court, see Gonzalez, 545

U.S. at 532 n.5 (citing Rodriguez v. Mitchell, 252 F.3d

191, 199 (2d Cir. 2001)); a “mistakenly entered” default

judgment, id. at 534 (citing Klapprott v. United States, 335

U.S. 601, 615 (1949)); or lack of subject matter jurisdiction,

id. (citing Steel Co. v. Citizens for Better Environment,

523 U.S. 83, 94 (1998)). Gonzalez also established that a

Rule 60(b) motion could be used to challenge judgments

based on other defects, such as timeliness, procedural

default, and exhaustion. Id. at 532 n.4 ; see Banister, 140

S.Ct. at 1709 n.7; Gonzalez, 545 U.S. at 541 (Stevens, J.,

dissenting) (“When a habeas petition has been dismissed

on a clearly defective procedural ground, the State can

hardly claim a legitimate interest in the finality of that

judgment.”).

Applying Gonzalez, circuit courts have used Rule

60(b) to address fundamental flaws that undermined the

integrity of habeas proceedings, including: the denial of

funding to investigate claims, see Crutsinger v. Davis, 929

F.3d 259, 265–66 (5th Cir. 2019); failure to consider the

merits of a claim of ineffective assistance of postconviction

counsel, see Barnett v. Roper, 904 F.3d 623, 633 (8th Cir.

2018); and, allegations of prosecutorial misconduct, see

In re Pickard, 681 F.3d 1201, 1205–06 (10th Cir. 2012).

The nature of the relief sought by the motion is key—an

integrity-based challenge does not seek habeas relief

itself, but rather the opportunity to present the merits

of habeas claims. “The movant in a true Rule 60(b)

motion is simply asserting that he did not get a fair shot

in the original [habeas] proceeding because its integrity

12

was marred by a flaw that must be repaired in further

proceedings.” Id. at 1206; see Rodriguez, 252 F.3d at 198

(“A motion under Rule 60(b) and a petition for habeas have

different objectives.”).

Further, while Gonzalez observed that a Rule 60(b)

motion based on “habeas counsel’s omissions ordinarily

does not go to the integrity of the proceedings,” Gonzalez,

545 U.S. at 532 n.5; see id. at 531 (a claim omitted

through “excusable neglect” not properly brought under

Rule 60(b)), it also suggests that not all such allegations

should be treated as successive petitions. Gonzalez drew

a line between allegations of the merely inadequate—the

“ordinary” and “excusable”—and the extraordinary and

egregious. Id. at 532 n.5. Allegations of extraordinary and

egregious attorney misconduct are not successive petitions

under 28 U.S.C. § 2244(b), but rather may be properly

raised in a Rule 60(b) motion as defects in the integrity

of federal habeas proceedings. Id. at 532. Abandonment

of a client during federal habeas proceedings is just such

an “extraordinary circumstance[s].” Maples, 565 U.S. at

289; see 18 U.S.C. § 3599(a)(2); Martel, 565 U.S. at 661.

Indeed, multiple circuit courts are in accord that

attorney abandonment strikes at the integrity of the

federal habeas proceeding by eliminating a district court’s

ability to reliably adjudicate the substantive merits of

a petitioner’s claims, and is therefore cognizable as a

Rule 60(b) motion. The Second Circuit has recognized

that “[t]o obtain relief under Rule 60(b)(6), a habeas

petitioner must show that his lawyer abandoned the

case and prevented the client from being heard, either

through counsel or pro se.” Harris, 367 F.3d at 77. The

Seventh Circuit recognized attorney abandonment as

13

one of the “rare circumstances” that warrants Rule 60(b)

relief, particularly where “[n]o one—not a court, not his

lawyer—informed [petitioner] about an alternative path to

relief after his postconviction lawyer abandoned him and

left him with only a jurisdictionally-out-of-time appeal.”

Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015).

And, in Mackey, the Ninth Circuit explained that “when

a federal habeas petitioner has been inexcusably and

grossly neglected by his counsel in a manner amounting

to attorney abandonment in every meaningful sense,”

thereby jeopardizing the petitioner’s appellate rights,

“a district court may grant relief pursuant to Rule 60(b)

(6).” Mackey, 682 F.3d at 1253 (citing, inter alia, Maples,

565 U.S. at 283). That is, whether by act or omission,

“[c]ommon sense dictates that a litigant cannot be held

constructively responsible for the conduct of an attorney

who is not operating as his agent in any meaningful

sense of that word.” Holland, 560 U.S. at 659 (Alito, J.

concurring); see Maples, 565 U.S. at 280-83.

14

CONCLUSION

Joseph Gamboa’s Petition for Writ of Certiorari

presents this Court with an opportunity to clarify that

a claim of attorney abandonment is an integrity-based

challenge, properly addressed under Rule 60(b). The

Petition should be granted.

Respectfully submitted,

Ayyan S. Zubair

A llen & Overy LLP

1221 6th Avenue

New York, NY 10020

James P. Gagen

Counsel of Record

A lan M. Billharz

Megan M. Ines

A llen & Overy LLP

1101 New York Avenue, NW

Washington, DC 20005

(202) 683-3896

james.gagen@allenovery.com

Counsel for Amici Curiae

October 30, 2023

APPENDIX

1a

APPENDIX A —Appendix

LIST OFAAMICI CURIAE

APPENDIX OF AMICI CURIAE1

John H. Blume is the Samuel F. Leibowitz Professor

of Trial Techniques and Director of the Cornell Death

Penalty Project at Cornell Law School.

Eric M. Freedman is the Siggi B. Wilzig Professor of

Constitutional Rights at Hofstra University School of Law.

Brandon L. Garrett is the L. Neil Williams, Jr.

Distinguished Professor of Law and Director of the Wilson

Center for Science and Justice at Duke University School

of Law.

Randy A. Hertz is Vice Dean and the Fiorello

LaGuardia Professor of Clinical Law at the New York

University School of Law.

Lee Kovarsky is the Bryant Smith Chair in Law and

Co-Director of the Capital Punishment Center at the

University of Texas at Austin School of Law.

James S. Liebman is the Simon H. Rifkind Professor

of Law at Columbia Law School.

Justin Marceau is Professor of Law at Strum College

of Law, University of Denver.

1. Institutions are listed for affiliation purposes only. All

signatories are participating in their individual capacity, not as

representatives of their institutions.

2a

Appendix A

Jordan M. Steiker is the Judge Robert M. Parker

Endowed Chair in Law and Co-Director of the Capital

Punish Center at the University of Texas at Austin School

of Law.

Stephen I. Vladeck is the Charles Alan Wright Chair

in Federal Courts at the University of Texas at Austin

School of Law.

Keir M. Weyble is Clinical Professor of Law and

Director of Death Penalty Litigation at Cornell Law

School.