Petition for Writ of Certiorari — Charles L. Burton, Jr., Petitioner v. John Q. Hamm, Commissioner, Alabama Department of Corrections

Supreme Court briefFeb 27, 2026

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No. ________

In The

Supreme Court of the United States

_____________________________

CHARLES L. BURTON, JR.,

Petitioner,

JOHN Q. HAMM, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________________________________________

CAPITAL CASE

Execution scheduled during the time frame beginning at 12:00 a.m. on

Thursday, March 12, 2026, and expiring at 6:00 a.m. on Friday, March 13, 2026

Central Time

MATT SCHULZ

SUPREME COURT BAR # 306494

Counsel of Record

DONNA VENABLE

FEDERAL DEFENDERS FOR THE

MIDDLE DISTRICT OF ALABAMA

817 S. Court Street

Montgomery, AL 36104

(334) 834-2099

Matt_Schulz@fd.org

February 27, 2026

CAPITAL CASE

QUESTION PRESENTED

The Talladega County trial court deprived Petitioner Charles L. Burton, Jr.,

of counsel by forcing his attorneys, against their strategic judgment, to call two codefendants as witnesses. Prejudice ensued. The co-defendants denied even knowing

Mr. Burton, and the State introduced otherwise inadmissible evidence to show they

lied. The state appellate courts refused to correct these constitutional errors.

Mr. Burton fared no better during federal habeas proceedings. Mr. Burton

argued Jones v. Barnes clearly established that witness choice is a strategic matter

and not one of the fundamental case decisions left to the defendant. Both the

district court and the Eleventh Circuit court of appeals rejected his argument. The

court of appeals held that Jones v. Barnes did not clearly establish that witness

choice is counsel’s strategic decision, nor did any other Supreme Court case in

existence at the time. Its narrow construction of § 2254(d)(1) prevented the court of

appeals from reaching Mr. Burton’s constitutional questions. So, in 2019, after this

Court decided McCoy v. Louisiana, Mr. Burton tried again to have the State of

Alabama recognize the trial court interfered with his right to counsel. He was again

unsuccessful.

This Court recently clarified the meaning of “clearly established Federal law”

in Andrew v. White. Mr. Burton moved under Rule 60(b)(6) to reopen his federal

habeas proceedings on the merits. But the district court dismissed the motion as an

unauthorized successive habeas petition and stated it would not issue a certificate

of appealability (“COA”). The Eleventh Circuit likewise refused to grant a COA

despite the question raised being clearly debatable by jurists of reason.

This case presents three questions in need of resolution:

1. Did the court of appeals, in denying Mr. Burton a COA, perpetuate a circuit

split, violate Mr. Burton’s equal protection rights, and deprive him of “one

full round of federal habeas review”?

2. Was it debatable by jurists of reason whether Mr. Burton’s Rule 60(b) motion

was a “true” 60(b) motion under Gonzalez v. Crosby?

3. Did the courts’ refusal to grant a COA perpetuate Alabama courts’ continued

misapplication of federal constitutional law on the issue of counsel’s role

versus that of the client?

LIST OF PARTIES

Petitioner is Charles L. Burton, Jr. Respondent is John Q. Hamm,

Commissioner of the Alabama Department of Corrections. Because Petitioner is not

a corporation, Supreme Court Rule 29.6 does not require a corporate disclosure

statement.

iii

LIST OF RELATED PROCEEDINGS

State Court

State v. Burton, No. CC-91-341-A (Talladega Cnty. Cir. Ct. May 8, 1992) (capital

sentencing order)

Burton v. State, No. CR-91-1185 (Ala. Crim. App., Dec. 30, 1993) (affirming

conviction and sentence)

Ex parte Burton, No. 1930770 (Ala. Sept. 16, 1994) (affirming conviction and

sentence)

Burton v. State, No. CC-91-341.60 (Talladega Cnty Cir. Ct. Jul. 17, 2001) (denying

relief in post-conviction)

Burton v. State, No. CR-00-2472 (Ala. Crim. App. Feb. 20, 2004) (affirming denial of

relief in post-conviction)

Ex parte Burton, No. 1031200 (Ala. Sept. 24, 2004) (writ denied, no opinion)

Burton v. State, No. CC-1991-000341.62 (Talladega Cnty Cir. Ct. Dec. 20, 2019)

(denying relief in post-conviction)

Burton v. State, No. CR-19-0400 (Ala. Crim. App. Dec. 17, 2021) (affirming denial of

relief in post-conviction)

Ex parte Burton, No. 1210407 (Ala. May 20, 2022) (writ denied, no opinion)

Federal Court

Burton v. Alabama, No. 94-8401 (U.S. May 15, 1995) (denying petition for writ of

certiorari from direct appeal)

Burton v. Campbell, 4:05-cv-308-CLS-PWG (N.D. Ala. Mar. 27, 2009) (denying

petition for writ of habeas corpus)

Burton v. Campbell, 4:05-cv-308-CLS-PWG (N.D. Ala. May 2, 2011) (granting in

part, and denying in part, application for certificate of appealability)

Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266 (11th Cir. Nov. 7, 2012)

(affirming denial of petition for writ of habeas corpus)

Burton v. Hamm, No. 4:05-cv-308-CLS (N.D. Ala. Oct. 8, 2025) (denying motion to

alter judgment denying petition for writ of habeas corpus)

Burton v. Comm’r, Ala. Dep’t of Corr., No. 25-13870 (11th Cir. Dec. 2, 2025)

(denying motion for certificate of appealability)

Burton v. Comm’r, Ala. Dep’t of Corr., No. 25-13870 (11th Cir. Jan. 13, 2026)

(denying motion for reconsideration of December 2, 2026, order)

ITEMS CONTAINED IN APPENDIX

Appendix A: Burton v. Comm’r, Ala. Dep’t of Corr., No. 25-13870 (11th Cir. Jan. 13,

2026) (denying motion for reconsideration of December 2, 2026, order)

Appendix B: Order, Burton v. Comm’r, Ala. Dep’t of Corr., No. 25-13870 (11th Cir.

Dec. 2, 2025)

Appendix C: Order, Burton v. Hamm, No. 4:05-cv-308-CLS (N.D. Ala. Oct. 8, 2025)

Appendix D: Opinion, Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266 (11th Cir.

Nov. 7, 2012)

Appendix E: Order, Burton v. Campbell, 4:05-cv-308-CLS-PWG (N.D. Ala. May 2,

2011)

Appendix F: Memorandum, Burton v. Campbell, No. 4:05-cv-308-CLS-PWG (N.D.

Ala. Mar. 27, 2009)

Appendix G: Memorandum Decision, Burton v. State, No. CR-19-0400 (Ala. Crim.

App. Dec. 17, 2021)

TABLE OF CONTENTS

CAPITAL CASE ............................................................................................................. ii

QUESTION PRESENTED ............................................................................................ ii

LIST OF PARTIES ....................................................................................................... iii

LIST OF RELATED PROCEEDINGS ......................................................................... iv

State Court .................................................................................................................... iv

Federal Court ................................................................................................................ iv

ITEMS CONTAINED IN APPENDIX ......................................................................... vi

TABLE OF CONTENTS .............................................................................................. vii

TABLE OF AUTHORITIES ...................................... viiiError! Bookmark not defined.

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT STATUTORY & CONSTITUTIONAL PROVISIONS ............................ 2

INTRODUCTION .......................................................................................................... 4

STATEMENT OF THE CASE....................................................................................... 7

REASONS FOR GRANTING THE WRIT .................................................................. 14

I. The Eleventh Circuit remains an outlier in prohibiting en banc COA

review…………… ...................................................................................................... 14

II.

Whether Mr. Burton’s motion was a “true” 60(b) motion or an unauthorized

successive habeas petition is debatable by jurists of reason. ................................. 17

Mr. Burton raised a “valid claim of the denial of a constitutional right.”

……………………………………………………………………………………...18

Jurists of reason would find the district court’s 60(b) denial

debatable………………………………………………………………………………….18

1. Mr. Burton’s argument properly fell under Rule 60(b), yet the district

court artificially narrowed the scope. ............................................................... 18

2. Mr. Burton’s motion attacked a defect in the integrity of his federal

habeas proceedings, not the district court’s previous merits resolution. ....... 20

III. The court of appeals’ refusal to grant a COA perpetuates the Alabama

courts’ continued misapplication of federal constitutional law……………………..24

CONCLUSION............................................................................................................. 30

vii

TABLE OF AUTHORITIES

Cases

Andrew v. White, 604 U.S. 86 (2025) ................................................................ 6, 12, 13

Acra v. State, 105 So. 3d 460 (Ala. Crim. App. 2012)................................................. 12

Anders v. California, 386 U.S. 738 (1967) .................................................................... 9

Artuz v. Bennett, 529 U.S. 1065 (2000) ...................................................................... 23

Barefoot v. Estelle, 463 U.S. 880 (1983) ............................................................... 15, 24

Bell v. United States, 260 A.2d 690 (D.C. 1970)......................................................... 26

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991) .................................... 10, 26, 27

Brookhart v. Janis,384 U.S. 1 (1966) .......................................................................... 10

Buck v. Davis, 580 U.S. 100 (2017) ............................................................................. 14

Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266 (11th Cir.

2012)……………………………………………………………………...….5, 6, 7, 8, 11, 13

Burton v. State, 651 So. 2d 641 (Ala. Crim. App. 1993)......................... 4, 5, 6, 7, 8, 27

Burton v. State, 910 So. 2d 831 (Ala. Crim. App. 2004)............................................... 9

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ........................ 15

Cobb v. State, 505 N.E.2d 51 (Ind. 1987) .................................................................... 26

Coleman v. Thompson, 501 U.S. 722 (1991) ............................................................... 22

Crutsinger v. Davis, 140 S. Ct. 2 (2019) ..................................................................... 21

Davis v. Peyton, 178 S.E.2d 679 (Va. 1971) ................................................................ 26

Dobbert v. Strickland, 670 F.2d 938 (11th Cir. 1982) ................................................ 30

Ex parte Burton, 651 So. 2d 659 (Ala. 1994) ............................................................. 8,9

Ex parte Mills, 62 So. 3d 574 (Ala. 2010) ............................................................. 29, 30

Faretta v. California, 422 U.S. 806 (1975)..................................... 9, 10, 11, 19, 20, 30

Florida v. Nixon, 543 U.S. 175 (2004) ......................................................................... 24

Geders v. United States, 425 U.S. 80 (1976) .............................................................. 25

Gonzalez v. Crosby, 545 U.S. 524 (2005) .......................................... 2, 7, 17, 20, 22, 23

Gonzalez v. United States, 553 U.S. 242 (2008) ............................................. 12, 28, 29

Hohn v. United States, 524 U.S. 236 (1998) ..................................................... 2, 15, 16

Jones v. Barnes, 463 U.S. 745 (1985)...5, 6, 9, 10, 11, 12, 13, 18, 19, 20, 24, 25, 27, 28

Klapprott v. United States, 335 U.S. 601 (1949) ........................................................ 30

Lockyer v. Andrade, 538 U.S. 63 (2003) ....................................................................... 6

McCoy v. Louisiana, 584 U.S. 414 (2018) ......................................... 6, 7, 11, 12, 28, 29

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................. 15

Mills v. Comm'r, Ala. Dep't of Corr., 102 F.4th 1235 (11th Cir. 2024) ...................... 14

Payne v. Tennessee, 501 U.S. 808 (1991) ............................................................. 12, 13

People v. Grant, 301 N.W.2d 536 (Mich. Ct. App. 1980) ............................................ 26

viii

Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015) ............................................ 20

Riley v. State, 608 P.2d 27 (Alaska 1980) ................................................................... 26

Slack v. McDaniel, 529 U.S. 473 (2000) .................................................... 14, 18, 19, 20

Smith v. State, 697 P.2d 904 (Okla. Crim. App. 1982)............................................... 26

State v. Gagne, 554 A.2d 795 (Me. 1989) .................................................................... 26

State v. Lee, 689 P.2d 153 (Ariz. 1984) ....................................................................... 26

State v. Pratts, 365 A.2d 928 (N.J. 1976) ................................................................... 26

Taylor v. Illinois, 484 U.S. 400 (1988) .................................................... 5, 6, 10, 24, 25

Wainwright v. Sykes, 433 U.S. 72 (1977) ............................................................... 5, 25

Whitmore v. State, 203 N.W.2d 56 (Wis. 1973) .......................................................... 26

Williams v. Chatman, 510 F.3d 1290 (11th Cir. 2007)............................................... 18

Statutory & Constitutional Provisions

28 U.S.C. § 1254 ............................................................................................................. 2

28 U.S.C. § 2244 (b) ................................................................................................... 2, 3

28 U.S.C. § 2244(d) ................................................................................................ 22, 23

28 U.S.C. § 2253 ............................................................................................................. 3

28 U.S.C. § 2253(c)(1) .................................................................................................. 16

28 U.S.C. § 2253(c)(2) .............................................................................................. 3, 14

28 U.S.C. § 2254 ......................................................................................................... 3, 9

28 U.S.C. § 2254(a) ................................................................................................ 20, 22

28 U.S.C. § 2254 (b)-(c) ................................................................................................ 22

28 U.S.C. § 2254(d) .................................................................................................. 3, 12

28 U.S.C. § 2254(d)(1) ................................................................ 9, 10, 13, 19, 20, 21, 30

Ala. Code § 13A-5-40(a)(2) ............................................................................................. 7

U.S. Const. amend. V..................................................................................................... 4

U.S. Const. amend. VI ................................................................................................... 4

U.S. Const. amend. VIII ................................................................................................ 4

U.S. Const. amend. XIV, § 1 .......................................................................................... 4

Rules

Eighth Circuit Rule 22A .............................................................................................. 16

Eleventh Circuit Rule 22-1(c) ...................................................................................... 15

Fed. R. Civ. P. 60(b)(6) ....................... 1, 6, 12, 13, 14, 17, 18, 20, 21, 22, 23, 24, 30, 31

Fifth Circuit Rule 22.................................................................................................... 16

Ninth Circuit Rule 22-1 ............................................................................................... 16

Ala. R. Prof’l Conduct 1.2 ........................................................................................ 8, 27

Second Circuit Local Rule 22.1 ................................................................................... 16

Seventh Circuit Rule 22 .............................................................................................. 16

Sixth Circuit Rule 22 ................................................................................................... 16

Tenth Circuit Rule 22.1 ............................................................................................... 16

PETITION FOR A WRIT OF CERTIORARI

Petitioner Charles L. Burton, Jr., an indigent prisoner sentenced to death in

Alabama, respectfully requests this Court grant certiorari to review the judgment of

the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The Order of the United States District Court for the Northern District of

Alabama denying Mr. Burton’s Rule 60(b) motion and noting no certificate of

appealability (“COA”) would issue is attached as Appendix C. 1 The Court of Appeals

for the Eleventh Circuit’s single-judge Order denying a COA is attached as

Appendix B. 2 And the three-judge panel Eleventh Circuit Order denying Mr.

Burton’s motion to reconsider the COA denial is attached as Appendix A. 3

JURISDICTION

The district court denied Mr. Burton’s Rule 60(b) motion on October 8, 2025,

stating it lacked subject-matter jurisdiction and therefore also could not issue a

COA. 4 The court of appeals denied Mr. Burton’s COA application, first by way of a

single-judge order on December 2, 2025, 5 then on reconsideration by a three-judge

panel on January 13, 2026. 6 In federal habeas proceedings, federal courts have

jurisdiction to consider Rule 60 motions like Mr. Burton’s that “attack[ ] not the

substance of the federal court’s resolution of a claim on the merits, but some defect

1 Pet. App. 4a–9a.

2 Id. at 3a.

3 Id. at 1a–2a.

4 Pet. App. 9a n.2.

5 Pet. App. 3a.

6 Pet. App. 1a–2a.

in the integrity of the federal habeas proceedings.” 7 And this Court has jurisdiction

to consider the lower courts’ COA denials. 8 Mr. Burton therefore invokes this

Court’s jurisdiction under 28 U.S.C. § 1254.

RELEVANT STATUTORY & CONSTITUTIONAL PROVISIONS

28 U.S.C. § 2244 (b) provides, in relevant part:

(1) A claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a

prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable; or

(B)

(3)

(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

(A) Before a second or successive application permitted by

this section is filed in the district court, the applicant shall

move in the appropriate court of appeals for an order

authorizing the district court to consider the application. . . .

7 Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).

8 Hohn v. United States, 524 U.S. 236, 238 (1998).

(4) A district court shall dismiss any claim presented in a second

or successive application that the court of appeals has

authorized to be filed unless the applicant shows that the

claim satisfies the requirements of this section.” 9

28 U.S.C. § 2253 provides, in relevant part: “A certificate of appealability may

issue under paragraph (1) only if the applicant has made a substantial showing of

the denial of a constitutional right.” 10

28 U.S.C. § 2254 provides, in relevant part: “The Supreme Court, a Justice

thereof, a circuit judge, or a district court shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 11

28 U.S.C. § 2254 further provides, in relevant part: “An application for a writ

of habeas corpus on behalf of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the claim—(1)

resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 12

9 28 U.S.C. § 2244(b).

10 28 U.S.C. § 2253(c)(2).

11 28 U.S.C. § 2254(a).

12 28 U.S.C. § 2254(d).

The Fifth Amendment to the United States Constitution, in relevant part,

provides: “No person shall . . . be deprived of life, liberty, or property, without due

process of law.” 13

The Sixth Amendment provides, in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel

for his defence.” 14

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” 15

The Fourteenth Amendment provides, in relevant part: “No State shall . . .

deprive any person of life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of the laws.” 16

INTRODUCTION

Facing a possible death sentence, Charles Burton was entitled to counsel’s

effective assistance. His attorneys used their best strategic judgment to advocate for

a life-sparing sentence, refusing their client’s misbegotten request to call his two codefendants to testify. 17 The trial court forced them to call those witnesses anyway. 18

Disaster ensued.

The co-defendants testified they did not know Mr. Burton, which opened the

door to otherwise inadmissible evidence, including video showing Mr. Burton with

13 U.S. Const. amend. V.

14 U.S. Const. amend. VI.

15 U.S. Const. amend. VIII.

16 U.S. Const. amend. XIV, § 1.

17 Burton v. State, 651 So. 2d 641, 656 (Ala. Crim. App. 1993).

18 Id.

the co-defendants on the day of the offense. 19 That evidence was especially

damaging due to the alibi defense employed during the trial’s guilt phase. While he

was represented by counsel, the choice to raise an alibi defense belonged to Mr.

Burton as a decision involving the representation’s objectives. 20 Witness choice,

however, was a strategic decision reserved to counsel. 21 By removing counsel’s

strategic witness choice in favor of Mr. Burton’s, the trial court violated Mr.

Burton’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

Mr. Burton first raised this issue on direct appeal in state court. 22 He raised

a related ineffective assistance of counsel (“IAC”) claim in state post-conviction. 23

He presented both claims to the district court 24 and court of appeals 25 during

19 Id.; see Burton v. State, No. CR-00-2472, mem. op. at 62 (Ala. Crim. App. Feb. 20,

2004).

20 See id. at 15 (quoting Burton v. State, No. CC-91-341.60, mem. op. at 13–14

(Talladega Cnty Cir. Ct. Jul. 17, 2001)) (“The Court concludes that trial counsel

pursued an alibi defense based upon what they were told by Burton and at Burton’s

direction.”); Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983) (quoting American Bar

Ass’n, Model Rules of Professional Conduct, Proposed Rule 1.2(a) (Final Draft

1982)) (“A lawyer shall abide by a client’s decisions concerning the objectives of

representation ... and shall consult with the client as to the means by which they

are to be pursued.... In a criminal case, the lawyer shall abide by the client’s

decision, ... as to a plea to be entered, whether to waive jury trial and whether the

client will testify.”) (emphasis added).

21 See Taylor v. Illinois, 484 U.S. 400, 418 (1988); see also Wainwright v. Sykes, 433

U.S. 72, 93 (1977) (Burger, C.J., concurring) (“Once counsel is appointed, the day-today conduct of the defense rests with the attorney. He, not the client, has the

immediate—and ultimate—responsibility of deciding if and when to object, which

witnesses, if any, to call, and what defenses to develop.”)).

22 See Burton, 651 So. 2d at 656.

23 See Burton, No. CR-00-2472, mem. op. at 60–62.

24 See Pet. App. 187a, 300a.

25 Pet. App. 10a–19a (Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266 (11th

Cir. 2012), cert denied, Burton v. Thomas, 571 U.S. 903 (2013) (mem.)).

federal habeas proceedings. But Mr. Burton was ultimately denied relief because he

“ha[d] not and [could ]not point to any clearly established federal law from [this

Court] on the question of whether the ultimate authority to call trial witnesses rests

with counsel or the client.” 26

In 2018, this Court decided McCoy v. Louisiana, in which it explicitly

included “the witnesses to call” in the category of decisions reserved to counsel. 27

Mr. Burton again sought relief in state court and was again denied. 28

This Court recently clarified what constitutes a case “holding”—and clearly

establishes federal law—in Andrew v. White. 29 When the Court “relies on a legal

rule or principle to decide a case, that principle is a ‘holding’ of the Court for

purposes of AEDPA.” 30 Mr. Burton moved under Rule 60(b)(6) to reopen his federal

habeas proceedings given Andrew, 31 noting the district court’s previous finding that

Jones v. Barnes was “clearly established Federal law” (“CEFL”). 32 The district court

26 Pet. App. 18a (Burton, 700 F.3d at 1270).

27 584 U.S. 414, 423 (2018).

28 Burton v. State, No. CR-19-0400 (Ala. Crim. App. Dec. 17, 2021), cert denied, Ex

parte Burton, No. 1210407 (Ala. May 20, 2022).

29 604 U.S. 86 (2025).

30 Id. at 92 (emphasis added); see 28 U.S.C. § 2254(d)(1) (the section of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) allowing federal

courts to grant the writ of habeas corpus where a state prisoner shows the state

court adjudication of his federal constitutional claim “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by” this Court); Lockyer v. Andrade, 538 U.S. 63, 71–72

(2003) (“[C]learly established Federal law . . . is the governing legal principle or

principles set forth by the Supreme Court at the time the state court renders its

decision” (internal quotation marks omitted)).

31 See Pet. App. 5a–6a.

32 Pet. App. 193a–94a.

treated his motion as an unauthorized successive habeas petition33 and, because it

did “not have subject-matter jurisdiction, [the court was] unable to file a certificate

of appealability.” 34 The court of appeals also refused to allow an appeal. 35

This is the story of a diligent attempt to raise a valid claim and the judicial

system’s failure to provide a procedural mechanism for doing so. Mr. Burton is

facing imminent execution without receiving the “valuable right” to which he is

entitled: “one full round of federal habeas review.” 36 This Court should grant

certiorari, vacate the judgment, and remand the case.

STATEMENT OF THE CASE

Mr. Burton neither witnessed nor condoned shooting Doug Battle, yet he was

convicted 37 of capital robbery-murder. 38 Without understanding the legal

ramifications, Mr. Burton requested that two co-defendants testify during the

33 Pet App. 9a.

34 Id. at 9a n.2.

35 Pet. App. 3a.; id. at 1a–2a.

36 See Gonzalez, 545 U.S. at 541 (Stevens, J., joined by Souter, J., dissenting).

37 Burton, 651 So. 2d 641.

38 See Ala. Code § 13A-5-40(a)(2).

penalty phase. 39 After forcing Mr. Burton’s counsel to call the co-defendants, the

trial court imposed a death sentence. 40

The state appellate courts affirmed the conviction and sentence on direct

appeal, 41 declining to address the trial court’s violation of Mr. Burton’s Fifth, Sixth,

Eighth, and Fourteenth Amendment rights. 42 The Alabama Court of Criminal

Appeals based its denial on Rule 1.2 of the Alabama Rules of Professional Conduct,

which states a lawyer must “abide by a client’s decisions concerning the objectives of

representation.” 43 The state supreme court affirmed. 44 During state post-conviction,

Mr. Burton claimed his trial counsel was ineffective for failing to object to the trial

39 See Pet. App. 13a–14a (Burton, 700 F.3d at 1268) (“Burton expected their

testimony to reinforce his alibi defense, even though that defense was unsuccessful

during the guilt phase of trial. Both men took the stand and denied participation in

the robbery, and denied knowing Burton. But Burton’s strategy backfired because

their testimony opened the door to previously inadmissible impeachment evidence

that Burton now claims irreparably damaged his counsel’s mitigation strategy. The

state was able to admit into evidence Jones’s post-arrest confession admitting his

participation in the AutoZone robbery with Burton and the other co-defendants. The

state also used Jones’s confession confirming the group’s initial intention to rob a

bank in Sylacuaga, Alabama. The confessions were corroborated by a bank

surveillance videotape purportedly showing Jones, Brantley, and Burton together,

inside the City National Bank in Sylacuaga, shortly before the robbery of the

AutoZone. In addition, two AutoZone customers testified and identified Jones and

Brantley as members of the group that robbed the store.”).

40 Burton, 651 So. 2d at 656.

41 Id. at 659.

42 Id. at 656.

43 Id. (quoting Ala. R. Prof’l Conduct 1.2).

44 Ex parte Burton, 651 So. 2d 659 (Ala. 1994), cert. denied, Burton v. Alabama, 514

U.S. 1115 (1995) (mem.)

court’s penalty-phase interference. 45 Again, the state courts denied relief under the

ethics rule. 46

Mr. Burton petitioned under 28 U.S.C. § 2254, arguing the same federal

constitutional violations he raised in state court. 47 Specifically, he argued Jones v.

Barnes, 48 CEFL, 49 recognized that an “accused has the ultimate authority to make

certain fundamental decisions regarding the case, an accused does not have a

constitutional right to direct matters of strategy.” 50 Jones declared that the goal of

the 1967 case, Anders v. California 51—“vigorous and effective advocacy”—would be

disserved by judges second-guessing “reasonable professional judgments and

impos[ing] on appointed counsel a duty to raise every ‘colorable’ claim suggested by

a client[.]” 52

The district court agreed with Mr. Burton that Jones was CEFL but reasoned

the claim was governed instead by Faretta v. California. 53 The court recognized

45 See Burton, No. CR-00-2472, mem. op. at 60–62.

46 Id.; Burton v. State, 910 So. 2d 831 (Ala. Crim. App. 2004); cert. denied, Ex parte

Burton, No. 1031200 (Ala. Sept. 24, 2004).

47 See Pet. App. 187a, 300a.

48 Jones v. Barnes, 463 U.S. 745 (1983).

49 28 U.S.C. § 2254(d)(1).

50 See Pet. App. 187a (internal quotation marks omitted).

51 386 U.S. 738 (1967). Anders’ controlling legal principle was that, to satisfy the

Sixth Amendment, counsel must act “in the role of an active advocate in behalf of

his client as opposed to that of amicus curiae.” Id. at 741. This Court applied that

principle in Jones, emphasizing the importance of counsel’s “reasonable professional

judgments” as to which claims to raise even where a client disagrees. Jones, 463

U.S. at 754.

52 Id. at 754.

53 422 U.S. 806 (1975). According to the court’s Memorandum Opinion, the trial

court infringed on the attorney-client relationship. Pet. App. 198a.

witness choice as a “trial tactical decision normally entrusted to counsel” and

agreed that the trial court’s actions infringed on the attorney-client relationship.

Yet the district court determined the “error was not of constitutional proportions

because the choice of which witnesses to call, and which not to call, ultimately

belongs to the defendant.” 54 In other words, because Faretta held the Sixth

Amendment protects a defendant’s right to self-representation, including when he

makes detrimental choices, Mr. Burton had the ultimate authority on which

witnesses to call. 55 However, the district court granted a COA on two issues:

whether “[t]he trial court interfered with, and irreparably harmed, defense counsel’s

mitigation strategy when it forced Mr. Burton’s counsel to call two co-defendants as

witnesses during the penalty phase,” and whether counsel was ineffective for failing

to object when the trial court interfered in that manner. 56

Unlike the district court, the Eleventh Circuit declined to reach the merits,

citing § 2254(d)(1) and reasoning:

While the Supreme Court has said at various times, either in

holding or in dicta, that certain fundamental decisions—such as

whether to plead guilty, Brookhart v. Janis, 384 U.S. 1 (1966);

waive a jury, Taylor v. Illinois, 484 U.S. 400 (1988); waive the

right to counsel, Faretta v. California[]; testify on his or her own

behalf, Jones v. Barnes[]; or take an appeal, id.—ultimately

belong to the client, it has never had occasion to address the

54 Id. (citing Blanco v. Singletary, 943 F.2d 1477, 1495 (11th Cir. 1991)).

55 See id. at 170–71 (quoting Faretta, 422 U.S. at 834, and citing the dissent in

Jones, as support for the proposition that a defendant is merely entitled to

assistance of counsel, rather than effective assistance,463 U.S. at 759 (Brennan, J.,

dissenting)).

56 Pet App. 22a, 27a.

division of decision-making authority in the trial context of calling

witnesses. 57

The appeals court further reasoned, “We do not read Jones as clearly establishing

that a defendant is deprived of his constitutional right to counsel when his lawyers

are forced to follow the defendant’s strategic directives.” 58 Ultimately, the court

held:

Burton has not and cannot point to any clearly established

federal law from the United States Supreme Court on the

question of whether the ultimate authority to call trial witnesses

rests with counsel or the client. Consequently, AEDPA bars

relief of Burton’s claims. 59

In 2019, Mr. Burton sought relief in state court based on this Court’s explicit

recognition in McCoy v. Louisiana, that “the witnesses to call” is a choice reserved

to counsel and does “not require client consent.” 60 The state courts again denied

relief, declaring the claim procedurally barred as already raised on direct appeal 61

and finding no exception because Mr. Burton did “not argue, much less show, that

57 Pet. App. 17a (Burton, 700 F.3d at 1269).

58 Id. at 18a (Burton, 700 F.3d at 1270).

59 Id.

Pet. App. 345a–346a n.1 (quoting McCoy, 584 U.S. at 423) (“Preserving for the

defendant the ability to decide whether to maintain his innocence should not

displace counsel’s, or the court’s, respective trial management roles. See Gonzalez[

v. United States], 553 U.S.[ 242], [ ] 249[ ] (‘[n]umerous choices affecting conduct of

the trial’ do not require client consent, including ‘the objections to make, the

witnesses to call, and the arguments to advance’)”).

61 Pet. App. 344a (Burton, No. CR-19-0400, at 6 (“Clearly, the ground that Burton

raised in the instant Rule 32 petition and reiterates on appeal was raised and

addressed on direct appeal.”).

McCoy announced a ‘new rule’ of constitutional law that must be applied

retroactively to his case on collateral review.” 62

On May 30, 2025, shortly after this Court decided Andrew v. White, 63 Mr.

Burton moved under Rule 60(b)(6) to reopen his federal habeas proceedings. 64 He

distinguished between the district court’s incorrect 2009 constitutional decision, and

the statutory interpretation question confronted in Andrew—which supported the

court of appeals’ denial. Mr. Burton posited Andrew clarified the meaning of CEFL

such that, contrary to the court of appeals’ prior ruling, AEDPA 65 did not bar full

merits review and relief on his claims. 66

Andrew explains that when this Court has “relie[d] on a legal rule or

principle to decide a case,” and that principle is “indispensable” to the outcome, the

principle constitutes CEFL. 67 Just as the due process rule in Andrew found its

source in Payne v. Tennessee, 68 the strategic decision-making principle on which

Mr. Burton relied was both well-established and indispensable to the Jones v.

Barnes outcome. 69

62 Id. at 346a (Burton, No. CR-19-0400, at 8) (quoting Acra v. State, 105 So. 3d 460

(Ala. Crim. App. 2012)).

63 See Andrew, 604 U.S. 86. The case was decided January 21, 2025.

64 See Pet. App. 7a.

65 The Antiterrorism and Effective Death Penalty Act, specifically 28 U.S.C. §

2254(d).

66 See Mot. for Relief from Judgment Under Fed. R. Civ. P. 60(b)(6) at 6–12, Burton

v. Hamm, No. 4:05-CV-00308-CLS (N.D. Ala. May 30, 2025) (ECF No. 51).

67 Andrew, 604 U.S. at 92–93, 95.

68 Payne v. Tennessee, 501 U.S. 808 (1991).

69 Compare Jones, 463 U.S. at 754 (discussing the non-viability of a judicially

imposed duty on appointed counsel to abide by every client decision) with Payne,

501 U.S. at 825 (discussing, in the context of victim impact evidence, that “the Due

Although the district court initially acknowledged Jones was CEFL, the court

of appeals reasoned instead that Mr. Burton failed to produce a Supreme Court case

explicitly stating “the ultimate authority to call trial witnesses rests with

counsel.” 70 Such a case did not exist when the court of appeals originally ruled. But

the undergirding legal principle did and was critical to Jones’ holding. The 60(b)

argument, therefore, focused on how the court of appeals misinterpreted §

2254(d)(1), preventing review of the constitutional questions the district court

decided incorrectly.

On October 2, 2025, while the 60(b) motion was still pending, Alabama moved

the state supreme court to authorize setting Mr. Burton’s execution date. 71 The

district court then denied the 60(b)(6) motion for lack of subject-matter jurisdiction,

deeming it, in substance, an unauthorized second successive habeas petition. 72

Because the district court also noted it would not grant a COA, 73 Mr. Burton

applied to the court of appeals. That too was denied, first in a one-sentence order

Process Clause of the Fourteenth Amendment provides a mechanism for relief

[against the introduction of evidence] “that is so unduly prejudicial that it renders

the trial fundamentally unfair”) and Andrew, 604 U.S. at 93 (holding, with regard

to introduction of “irrelevant evidence, including evidence ‘that [Ms. Andrew] had

extramarital sexual affairs with two other men,’ that she had ‘come on to’ another

witness’s sons, and that she had dressed provocatively at a restaurant,” that “[t]he

legal principle on which Andrew relies, that the Due Process Clause can in certain

cases protect against the introduction of unduly prejudicial evidence at a criminal

trial, was therefore indispensable to the decision in Payne. That means it was a

holding of this Court for purposes of AEDPA.”).

70 Pet. App. 18a (Burton, 700 F.3d at 1270).

71 See Notice to the Court of Execution Motion, Burton v. Hamm, No. 4:05-CV00308-CLS (N.D. Ala. Oct. 2, 2025) (ECF No. 57).

72 Pet. App. 9a.

73 Id. at 9a n.2.

issued by a single judge, 74 then on motion for reconsideration heard by a threejudge panel, again in a one-sentence order. 75

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit remains an outlier in prohibiting en banc COA review.

The Eleventh Circuit requires a COA to initiate a Rule 60(b) appeal in the

habeas context. 76 To obtain a COA, the applicant must make “‘a substantial

showing of the denial of a constitutional right.’” 77 This means “[t]he applicant must

establish that jurists of reason could disagree with the resolution of his

constitutional claims or that jurists could conclude that the issues presented are

adequate to deserve encouragement to proceed further.” 78 When the applicant seeks

a COA to appeal a Rule 60(b) denial, the relevant question is “whether a reasonable

jurist could conclude that the district court abused its discretion.” 79 And when the

adverse final ruling rests on procedural grounds, “a COA should issue . . . if the

petition states a valid claim of the denial of a constitutional right, and . . . jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling.” 80

74 Pet. App. 3a.

75 Id. at 1a–2a.

76 See Mills v. Comm'r, Ala. Dep't of Corr., 102 F.4th 1235, 1238 (11th Cir. 2024) (“A

party who seeks to appeal the denial of a motion for relief from a judgment denying

habeas relief must obtain a certificate of appealability.”).

77 Id. (quoting 28 U.S.C. § 2253(c)(2)).

78 Id. at 1238–39 (internal quotations omitted).

79 Id. at 1239 (citing Buck v. Davis, 580 U.S. 100, 123 (2017)).

80 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

A petitioner seeking a COA need only show that the claim is debatable, and a

claim is debatable “even though every jurist of reason might agree, after the COA

has been granted and the case has received full consideration, that petitioner will

not prevail.” 81 That an applicant faces a sentence of death “is a proper consideration

in determining whether to issue a” COA. 82

How the COA application was handled deprived Mr. Burton of access to the

courts and violated his equal protection rights. 83 Specifically, the Eleventh Circuit’s

COA practice, which prohibits seeking en banc review of a single-judge or threejudge panel COA denial, 84 conflicts with the principles underlying this Court’s

decision in Hohn v. United States. 85 There, this Court stated:

The recognition that decisions made by individual circuit judges

remain subject to correction by the entire court of appeals

reinforces our determination that decisions with regard to an

application for a certificate of appealability should be regarded as

an action of the court itself and not of the individual judge. 86

Here, as in Hohn, a three-judge panel ultimately denied the COA. 87 However, in

Hohn, unlike here, the three-judge panel issued a reasoned, reviewable opinion. 88

81 Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (emphasis added).

82 Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

83 See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(explaining that similarly situated persons must be treated alike).

84 Eleventh Circuit Rule 22-1(c) (“The denial of a certificate of appealability,

whether by a single circuit judge or by a panel, may be the subject of a motion for

reconsideration but may not be the subject of a petition for panel rehearing or a

petition for rehearing en banc.”)

85 524 U.S. 236 (1998).

86 Id. at 244–45.

87 Compare Pet. App. 1a–2a with id. at 240.

88 Compare Pet. App. 1a–2a with Hohn, 524 U.S. at 245.

Hohn also distinguished the administrative and judicial functions of Article

III judges, explicitly identifying COA rulings as judicial functions:

Decisions regarding applications for certificates of appealability,

in contrast, are judicial in nature. It is typical for both parties to

enter appearances and to submit briefs at appropriate times and

for the court of appeals to enter a judgment and to issue a

mandate at the end of the proceedings, as happened here.

Construing the issuance of a certificate of appealability as an

administrative function, moreover, would suggest an entity not

wielding judicial power might review the decision of an Article III

court. In light of the constitutional questions which would

surround such an arrangement, we should avoid any such

implication. 89

The conclusion? “It is more consistent with the Federal Rules and the uniform

practice of the courts of appeals to construe § 2253(c)(1) as conferring the

jurisdiction to issue certificates of appealability upon the court of appeals rather

than by a judge acting under his or her own seal.” 90 And if the court, not just the

judge, issues the COA, then the court, not just the judge, must have the opportunity

to review the application.

Practice in every other circuit follows the principle underlying Hohn: As long

as the COA denial is reasonably reviewable, the circuit’s practice does not run afoul

of the Constitution. No other circuits expressly forbid en banc review. 91 Indeed,

many offer additional protections. For example, the First Circuit requires three-

89 Hohn, 524 U.S. at 245–46 (internal citations omitted).

90 Id. at 245.

91 See Second Circuit Local Rule 22.1; Third Circuit Local Rule 22.1; Fourth Circuit

Local Rule 22(a); Fifth Circuit Rule 22; Sixth Circuit Rule 22; Seventh Circuit Rule

22; Eighth Circuit Rule 22A; Ninth Circuit Rule 22-1; and Tenth Circuit Rule 22.1.

The First and D.C. Circuits do not have local rules governing this issue.

judge panel review of COA applications in capital habeas cases. 92 The Third Circuit

requires review by a three-judge panel in all habeas cases, allowing denial only if all

three judges agree no COA should issue. 93 This Court should grant certiorari to

resolve the circuit split, determine the due process required for COA applications in

capital cases, and provide Eleventh Circuit petitioners equal protection under the

law.

II.

Whether Mr. Burton’s motion was a “true” 60(b) motion or an unauthorized

successive habeas petition is debatable by jurists of reason.

Gonzalez v. Crosby compared “true Rule 60(b) motion[s]” 94 and those that

are, in substance, second or successive habeas petitions. 95 According to Gonzalez,

60(b) motions that are disguised second or successive habeas petitions include those

which “attack the federal court’s previous resolution of a claim on the merits.” 96

“True” 60(b) motions, on the other hand, “allege some defect in the integrity of the

federal habeas proceedings” 97 or “assert a previous ruling that precluded a merits

determination was in error.” 98

92 See First Circuit I.O.P. VII.A.

93 See Third Circuit Local Rule 22.3.

94 See Gonzalez, 545 U.S. at 531.

95 Id. at 530–36.

96 Id. at 532 (emphasis omitted).

97 Id.

98 Id. at 532 n.4.

Mr. Burton’s motion was a “true” 60(b) motion. And jurists of reason “would

find it debatable whether the district court was correct in its procedural ruling” 99

that lack of subject-matter jurisdiction meant it could not consider the motion. 100

Mr. Burton raised a “valid claim of the denial of a constitutional right.”

The district court issued a COA in the first instance, specifically finding Mr.

Burton had “made a substantial showing of the denial of constitutional rights in

connection with” his claims of “trial court interference” and “ineffective assistance of

counsel for failing to object to trial court interference” related to “whether the

decision to call witnesses at trial is ultimately a fundamental right of the defendant,

or reserved for counsel as an inalienable strategic matter.” 101 His constitutional

claims remained the same when he moved under Rule 60(b). There is no dispute,

therefore, that Mr. Burton stated a “valid claim of the denial of a constitutional

right.” 102 He simply sought full merits adjudication instead of one curtailed by the

overly strict construction of CEFL this Court disavowed in Andrew.

Jurists of reason would find the district court’s 60(b) denial debatable.

1. Mr. Burton’s argument properly fell under Rule 60(b), yet the

district court artificially narrowed the scope.

The district court summarized Mr. Burton’s argument: “In essence, he argues

that the court should have granted his habeas petition under Jones v. Barnes on his

99 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

100 Pet. App. 9a n.2 (“Further, because this Court does not have subject-matter

jurisdiction, it is unable to file a certificate of appealability for the denial of Burton’s

Rule 60(b) motion.” (citing Williams v. Chatman, 510 F.3d 1290, 1294–95 (11th Cir.

2007)).

101 Pet. App. 23a.

102 Slack, 529 U.S. at 484.

prejudicial-witness argument, especially in view of the Supreme Court’s new

Andrew[] v. White opinion.” 103 But that was not the extent of Mr. Burton’s

argument, and the court’s attempt to whittle the argument down to its “essence”

creates a straw-man which betrays the argument’s nuance. The district court

ultimately found the argument

challenges the validity of Burton’s state sentence, attacks the

merits of the prior court rulings, and does not point to or allege a

defect in the integrity of this court’s prior judgment denying his

original habeas petition—indicating that the motion is a second

habeas petition as defined in Gonzalez[.] 104

Not so. While Mr. Burton asserted Faretta was the wrong CEFL, 105 that is not all

he argued. The crux of the motion was that the court of appeals should have found

Jones qualified as CEFL. 106 This argument is distinct from the district court’s gloss,

as Mr. Burton never asserted the district court should have granted his habeas

petition because of Andrew. Instead, the district court correctly applied Andrew’s

holding well before Andrew was decided. Therefore, as Mr. Burton recognized,

Andrew could not impact the district court’s prior ruling.

103 Pet. App. 7a (internal citations omitted).

104 Id.

105 See ECF No. 51 at 14–15.

106 See id. at 9 (“In finding Jones could suffice as clearly established federal law

under § 2554(d)(1), this Court too emphasized the importance of counsel’s

professional judgments versus the client’s wishes in determining what best aligns

with the Constitution[.] . . . It was the Eleventh Circuit that determined Mr.

Burton had not cited clearly established federal law sufficient to allow habeas relief

under § 2254(d)(1)”); id. at 13 (“Mr. Burton was prejudiced by the lack of merits

review in the Eleventh Circuit.”).

2. Mr. Burton’s motion attacked a defect in the integrity of his federal

habeas proceedings, not the district court’s previous merits

resolution.

Mr. Burton’s 60(b) motion did not “attack the federal court’s previous

resolution of a claim on the merits,” which would have constituted a disguised

successive habeas petition prohibited by Gonzalez. 107 Mr. Burton’s motion agreed

with the district court’s § 2254(d)(1) statutory interpretation—that Jones sufficed as

CEFL. 108 And, as he argued, intervening precedent—Andrew v. White—justifies

60(b)(6) relief because it controls which CEFL—Faretta or Jones—governs under §

2254 (a). 109

In Ramirez v. United States, the Seventh Circuit ruled a motion properly

filed under Rule 60(b)(6), describing the rule as “fundamentally equitable in nature”

and identifying several “[p]ertinent considerations” for determining whether

“extraordinary circumstances justify relief.” 110 One such pertinent consideration

was “a change in the Supreme Court’s approach to the fundamental rules for

deciding habeas corpus cases.” 111 The Andrew decision falls into this category

because this Court provided critical clarity on what counts as CEFL under §

107 Gonzalez, 545 U.S. at 532.

108 See ECF No. 51 at 9 (“In finding Jones could suffice as clearly established federal

law under § 2554(d)(1), this Court too emphasized the importance of counsel’s

professional judgments versus the client’s wishes in determining what best aligns

with the Constitution.”).

109 See id. at 14–15 (“The Eleventh Circuit never addressed this Court’s conclusion

that Faretta was the governing law because, by that Court’s logic, neither Jones nor

Faretta clearly established where the decision-making authority on calling

witnesses rests.”)

110 Ramirez v. United States, 799 F.3d 845, 850–51 (7th Cir. 2015).

111 Id.

2254(d)(1). Had Mr. Burton applied for a COA in the Seventh Circuit, his appeal

would have been heard, demonstrating jurists of reason would debate the Eleventh

Circuits’ resolution.

Justice Sotomayor explained how intervening precedent may undermine a

final judgment:

Gonzalez left open the possibility that in an appropriate case, a

change in decisional law, alone, may supply an extraordinary

circumstance justifying Rule 60(b)(6) relief. Although this Court

observed that “not every interpretation of the federal statutes

setting forth the requirements for habeas provides cause for

reopening cases long since final,” the Court also noted that “[a]

change in the interpretation of a substantive statute may have

consequences for cases that have already reached final judgment,

particularly in the criminal context.” 112

Thus, a justice of this Court too contemplated Rule 60(b)(6) as a vehicle for raising

claims impacted by refinements in the interpretation of federal statutes. Title 28

U.S.C. § 2254(d)(1) is a federal statute. Again, jurists of reason would find the court

of appeals’ resolution debatable.

Mr. Burton requests only to be afforded a vehicle to raise his claim, but the

district court treated his motion as an unauthorized successive habeas petition in

part because it did “not point to or allege a defect in the integrity of” the district

court’s prior judgment, effectively ignoring the plain language of Gonzalez. 113 The

district court misconstrued the argument as “address[ing] the integrity of the

112 Crutsinger v. Davis, 140 S. Ct. 2, 2–3 (2019) (mem.) (statement of Sotomayor, J.,

respecting the denial of certiorari) (citation omitted).

113 Pet. App. 7a.

court’s prior judgment . . .” 114 But the standard is whether Mr. Burton alleged “some

defect in the integrity of the federal habeas proceedings.” 115 The word “proceedings”

encompasses both district and appellate court activity. Mr. Burton alleged the

defect in his federal habeas proceedings was the inconsistency between the district

court’s and the court of appeals’ interpretations of what constitutes CEFL. 116 By

construing “clearly established Federal law” too narrowly, per Andrew, the court of

appeals never reached the merits of Mr. Burton’s federal constitutional claim under

§ 2254(a). In other words, the court of appeals’ prior ruling “precluded a merits

determination.” 117

Gonzalez included, in a footnote, a list of potential rulings precluding merits

determinations that are appropriate 60(b) subjects: “‘failure to exhaust, procedural

default, or [a] statute-of-limitations bar.’” 118 Like the phrase “clearly established

Federal law,” these are statutory and doctrinal—rather than constitutional—

concepts. 119 But the district court treated this list, appearing as dicta in Gonzalez,

as exhaustive, deeming Mr. Burton’s motion an unauthorized successive habeas

petition merely because the rulings in his case were not explicitly included. This

114 Pet. App. 8a.

115 Gonzalez, 545 U.S. at 532 (emphasis added).

116 See ECF No. 51 at 14–15.

117 See id. at 14 (quoting Gonzalez, 545 U.S. at 532 n.4).

118 Pet. App. 8a (quoting id.).

119 See 28 U.S.C. § 2244(d) (AEDPA’s statute of limitations); 28 U.S.C. § 2254 (b)-(c)

(discussing exhaustion of state remedies); Coleman v. Thompson, 501 U.S. 722, 732

(1991) (defining “procedural default” as when “a habeas petitioner [] has failed to

meet the State’s procedural requirements for presenting his federal claims[, thus]

depriv[ing] the state courts of an opportunity to address those claims in the first

instance”).

prevented merits review. Indeed, Mr. Burton’s argument is like that made by the

petitioner in Gonzalez. There Artuz v. Bennett changed the interpretation of

another AEDPA statutory provision—the § 2244(d) statute of limitations—and this

change constituted “extraordinary circumstances” justifying reopening the

judgment under Rule 60(b). 120 There is no reason, therefore, to draw the distinction

the district court drew.

This Court has the opportunity to clarify the effect of intervening precedent

and what rulings precluding a merits determination qualify under Rule 60(b). As

Gonzalez explicitly contemplated, Mr. Burton’s motion “attack[ed], 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.” 121 A man’s life should not rest on

an incomplete, example-based, definition of what constitutes a “true” 60(b) motion.

That definition, appearing in a footnote, left refinement to the lower courts, but the

lower courts here abdicated their duty. They refused to grant a COA even though,

inevitably, reasonable jurists will disagree when such ambiguity is present. The

need for clarity is further illustrated by the fact that even the parties agreed that

120 See Gonzalez, 545 U.S. at 536 (“Petitioner contends that Artuz [v. Bennett, 529

U.S. 1065 (2000)]’s change in the interpretation of the AEDPA statute of limitations

meets this description.”).

121 Gonzalez, 545 U.S. at 532.

Rule 60(b) was the proper vehicle for Mr. Burton’s claim. 122 This is sufficient to

“deserve encouragement to proceed further.” 123

III.

The court of appeals’ refusal to grant a COA perpetuates the Alabama courts’

continued misapplication of federal constitutional law.

Decided in 1983, Jones recognized that the accused’s “authority to make

certain fundamental decisions regarding the case” does not extend “to direct

matters of strategy.” 124 In Jones, this Court cited professional standards, including

the ABA Model Rules of Professional Conduct, and concluded, “With the exception

of these specified fundamental decisions [what plea to enter, whether to waive jury

trial, and whether to testify], an attorney’s duty is to take professional

responsibility for the conduct of the case, after consulting with his client.” 125 In

briefing to the court of appeals, Mr. Burton cited Florida v. Nixon, a 2004 case in

which this Court, quoting Jones, delineated the roles held by the defendant and

counsel at trial. 126 He quoted Taylor v. Illinois, a 1988 case in which this Court

stated, “[T]he lawyer has—and must have—full authority to manage the conduct of

122 See Resp’t’s Obj. to Pet’r’s Rule 60(b)(6) Mot., Burton v. Hamm, No. 4:05-CV-

00308-CLS (N.D. Ala. June 27, 2025) (ECF No. 55) (raising no jurisdictional

objection or argument that the motion should be treated as a second or successive

habeas petition).

123 Barefoot, 463 U.S. at 893.

124 See Pet. App. 187a (internal quotation marks omitted).

125 Jones, 463 U.S. at 753 n.6 (citing American Bar Ass’n, Model Rules of

Professional Conduct, Proposed Rule 1.2(a) (Final Draft 1982)); see also id. (“The

ABA Defense Function Standards provide, however, that, with the exceptions

specified above, strategic and tactical decisions are the exclusive province of the

defense counsel, after consultation with the client.”) (citing American Bar Ass’n,

Standards for Criminal Justice 4–5.2 (2d ed. 1980)).

126 Br. of Appellant at 15–16, Burton, 700 F.3d 1266 (No. 10-12108-P) (citing Florida

v. Nixon, 543 U.S. 175, 187 (2004) (quoting Jones, 463 U.S. at 751)).

the trial. The adversary process could not function effectively if every tactical

decision required client approval.” 127 And he quoted Chief Justice Burger’s 1977

concurrence in Wainwright v. Sykes, which explicitly recognized the calling of

witnesses as counsel’s decision:

Once counsel is appointed, the day-to-day conduct of the defense

rests with the attorney. He, not the client, has the immediate—

and ultimate—responsibility of deciding if and when to object,

which witnesses, if any, to call, and what defenses to develop. 128

Thus, since at least 1977, this Court’s “cases [have] recognize[d] that the role

of counsel is important precisely because ordinarily a defendant is ill-equipped to

understand and deal with the trial process without a lawyer’s guidance.” 129 This

was no more apparent than during Mr. Burton’s penalty phase where, as the

district court found

the trial judge cut Burton off in mid-sentence, as Burton began

to volunteer an explanation of why he had asked his attorneys to

call [the co-defendants] “earlier before this,” saying: “You

answered my question.” If the trial judge had taken a moment to

inquire, he would have learned that Burton expected [the codefendants] to corroborate his concocted alibi defense: hence,

Burton’s incompletely-stated “desire to call them earlier before

this—before the sentencing became” an issue. Of course,

Burton’s alibi defense was no longer relevant during the penalty

phase; it had been rejected by the jury’s verdict on the issue of

Burton’s guilt or innocence of the charged offense. That

obviously was the basis for defense attorney William

Willingham’s stated opinion that neither [co-defendant] could

provide

any testimony that would mitigate my client’s guilt

in this case. If he insists on calling them and you

127 Id. at 16 (quoting Taylor, 484 U.S. at 418).

128 Id. (quoting Wainwright, 433 U.S. at 93 (Burger, C.J., concurring)) (internal

quotation marks omitted).

129 Geders v. United States, 425 U.S. 80, 88 (1976).

instruct me to question them, I will. But it would

be my decision not to call them as witnesses,

because they, in my opinion, they would have

nothing which would mitigate the Defendant’s guilt

in this case. 130

The principle that witness selection is a strategic decision reserved to counsel

is long-established and widely recognized at the time of trial. 131 Yet the trial court

130 Pet. App. 191a (citation omitted) (emphasis supplied by district court).

131 See Riley v. State, 608 P.2d 27, 29 n.9 (Alaska 1980) (“The decisions on what

witnesses to call . . . and all other strategic and tactical decisions are the exclusive

province of the lawyer after consultation with his client.”); State v. Lee, 689 P.2d

153, 157 (Ariz. 1984)(“[T]he power to decide questions of trial strategy and tactics

rests with counsel, and the decision as to what witnesses to call is a tactical,

strategic decision.”) (citations omitted); Bell v. United States, 260 A.2d 690, 691

(D.C. 1970) (“The decision to call or not to call witnesses on behalf of a defendant is

part of the strategy utilized by counsel in the preparation of the defense. It is a

question of judgment, and this court will not engage in a subjective determination of

the wisdom of counsel's strategy.”) (citation omitted); Cobb v. State, 505 N.E.2d 51,

54 (Ind. 1987) (“As a general proposition, the decision whether to call a particular

witness is encompassed within the attorney's trial strategy.”); State v. Gagne, 554

A.2d 795, 796 (Me. 1989) (“We find the decision not to call these witnesses to be well

within the scope of defense strategy.”); People v. Grant, 301 N.W.2d 536 (Mich. Ct.

App. 1980); State v. Pratts, 365 A.2d 928, 929 (N.J. 1976) (“Faretta recognized that

when a defendant chooses to have a lawyer represent him at trial, ordinarily such

counsel controls trial strategy. Here, despite defendant's objection at the time, trial

counsel's decision not to call a witness whom he had interviewed and whose

testimony he was satisfied would be more damaging than helpful to defendant's

case, cannot be faulted. The trial court's decision not to involve itself in what was

purely a matter of trial strategy was quite correct under the circumstances.”); Smith

v. State, 697 P.2d 904, 908 (Okla. Crim. App. 1982) (“We recognize that the attorney

for a defendant may, at times, have legitimate reasons for not calling certain

witnesses to testify. The decision of which witness, if any, to call at trial is one of

strategy best left to counsel and generally will not be second-guessed on appeal.”);

Davis v. Peyton, 178 S.E.2d 679, 681 (Va. 1971) (“[F]ailure to summons or call

witnesses is usually an exercise of judgment and trial strategy by defense counsel

and not a basis for an allegation of ineffective representation.”); Whitmore v. State,

203 N.W.2d 56, 60 (Wis. 1973) (“An attorney’s strategic decision based upon a

reasonable view of the facts not to call a witness is within the realm of independent

professional judgment.”); Blanco v. Singletary, 943 F.2d 1477, 1495 (explaining the

“trial court overreached its authority and infringed upon the relationship between

went rogue, overruling that principle by forcing Mr. Burton’s attorneys to call

witnesses against their professional judgment. In so doing, the trial court

substituted its decision-making for the reasoned, strategic choice of counsel.

Mr. Burton lacked an informed choice regarding the co-defendants’ testifying.

Deprived of counsel’s assistance, Mr. Burton was also deprived of the protections

guaranteed by Faretta, that any decision to represent oneself be made with

“informed free will.” 132 In that case, the trial judge “warned Faretta that he thought

it was a mistake not to accept the assistance of counsel, and that Faretta would be

required to follow all the ‘ground rules’ of trial procedure.” 133 The colloquy covered

whether Mr. Faretta had done legal research and whether he understood the basics

of trial procedure, including jury selection and evidence admissibility. 134 Not so

here: The district court “disagree[d] with the state appellate court’s characterization

of the trial judge’s colloquy with Burton as ‘lengthy’; it was anything but that.” 135

As it stands, Mr. Burton could not access the constitutional .guarantees

explained in either case—Jones or Faretta—because the Alabama courts decided his

case using a flawed interpretation of a state professional conduct rule discussing the

“objectives” of representation. 136 That rule, Rule 1.2 of the Alabama Rules of

Professional Conduct, mirrors ABA Model Rule of Professional Conduct 1.2(a),

Blanco and his attorneys by requiring defense counsel to call two additional

witnesses.”)

132 422 U.S. at 835 (emphasis added).

133 Id. at 835–36.

134 See id. at 808 n.3.

135 Id.

136 Burton, 651 So. 2d at 656 (quoting Ala. R. Prof’l Conduct 1.2).

which is discussed in McCoy, and states that a “lawyer shall abide by a client’s

decisions concerning the objectives of the representation.” 137 In McCoy, this Court

clearly distinguished “between strategic choices about how best to achieve a client’s

objectives” and “choices about what the client’s objectives in fact are,” 138 putting

witness choice squarely in the category of strategic choices belonging to counsel, not

the client. 139

Witness choice is not, and never has been, an “objective” of representation. 140

For at least half a century, this Court has been clear in its holdings on this matter.

Indeed, in the decades since the state courts first denied Mr. Burton’s direct appeal

claim, this Court continued to rely on Jones to establish the legal presumption that

attorneys have “better understanding of the procedural choices,” that is, the

“choices affecting conduct of the trial, including . . . the witnesses to call.” 141 To this

day, no reviewing court has corrected these clear constitutional violations.

137 584 U.S. 423 (quoting ABA Model Rule of Prof’l Conduct 1.2(a)).

138 Id. at 422 (emphasis in original).

139 Id. at 423 (“Preserving for the defendant the ability to decide whether to

maintain his innocence should not displace counsel’s, or the court’s, respective trial

management roles. See Gonzalez [v. United States], 553 U.S.[ 242,] 249

[(2008)](‘[n]umerous choices affecting conduct of the trial’ do not require client

consent, including ‘the objections to make, the witnesses to call, and the arguments

to advance’)).” Notably, the quote from Gonzalez v. United States is derived from,

and cites to, Jones. See Gonzalez, 553 U.S. at 249–50.

140 McCoy, 584 U.S. at 423 (quoting id. at 249 (“Numerous choices affecting conduct

of the trial” do not require client consent, including “the objections to make, the

witnesses to call, and the arguments to advance.”) (internal quotation marks

omitted)).

141 Gonzalez v. United States, 553 U.S. 242, 249 (2008).

In denying McCoy relief, the Alabama Court of Criminal Appeals

acknowledged in a footnote this distinction but doubled down on its incorrect

assessment that allowing the client to make strategic decisions comports with the

Sixth Amendment:

We also note that the Alabama Supreme Court has recognized

that United States Supreme Court’s decisions which hold that

counsel does not need the client’s approval for every tactical

decision do not “imply that a trial court commits reversible error

if it permits the defendant to make a tactical decision after the

defendant has been advised by counsel regarding that decision”

and that “[s]imply because defense counsel may make the tactical

decision ... it does not follow that the trial court is required to

follow the wishes of defense counsel as to every decision regarding

trial strategy under any circumstance, even over the objection of

the defendant.” Ex parte Mills, 62 So. 3d 574, 590 (Ala. 2010). 142

In Ex parte Mills, the state supreme court concluded, on plain-error review,

Based on the foregoing, we conclude that under these

circumstances—i.e., Mills received extensive time to discuss the

matter with his attorneys and his attorneys did not clearly object

to Mills's decision not to request lesser-included-offense

instructions—the trial court did not commit plain error in

permitting Mills to decide whether to request instructions as to

lesser-included offenses. 143

In other words, the Alabama courts denied Mr. Burton relief based on caselaw

borne of a very different situation—one in which it was at least arguable that the

client understood the risks inherent in his strategic decision and his attorneys did

not raise a clear objection when he made it.

142 Pet. App. 345a–346a n.1.

143 62 So. 3d 574, 590 (Ala. 2010).

The state courts denied Mr. Burton a fair reading of the federal constitution

in 1993, and they denied him again in 2021. Most recently, on January 22, 2026, the

state supreme court denied Mr. Burton relief on this issue yet again after he raised

it in response to the state’s motion to authorize an execution date. 144 This is not

justice.

Rule 60(b)(6) “vests power in courts . . . to enable them to vacate judgments

whenever such action is appropriate to accomplish justice.” 145 Justice here would be

to allow Mr. Burton a full merits adjudication of his federal constitutional claims.

Justice here would be to allow him his “day in . . . court before [his life is]

extinguished.” 146

CONCLUSION

The Andrew decision represented a change in this Court’s approach to

interpreting § 2254(d)(1). Mr. Burton has been nothing but diligent in pursuing

relief on the meritorious constitutional claims that should free him from the death

sentence. But he was denied relief under the too-narrow construction of § 2254(d)(1)

rejected in Andrew. Given these circumstances, the court of appeals’ one-sentence

denial issued by a single judge is insufficient to deprive Mr. Burton of one full

opportunity to have his federal constitutional claims adjudicated. This issue is

144 See Order, No. 1930070 (Ala. Jan. 22, 2026). In those proceedings, Mr. Burton

also raised the argument that, if his claim was governed by Faretta, he should have

been granted relief on his direct-appeal claim that he was deprived of access to the

courts during a critical stage in the proceedings. See Resp. to the State of Alabama’s

Mot. to Set an Execution Date at 15–24 (Ala. Dec. 10, 2025).

145 Klapprott v. United States, 335 U.S. 601, 615 (1949).

146 Dobbert v. Strickland, 670 F.2d 938, 940 (11th Cir. 1982).

deserving of a COA, as jurists of reason have already debated whether issues like

those presented in Mr. Burton’s motion were cognizable and properly raised under

Rule 60(b)(6).

If Mr. Burton is correct that his death sentence was unconstitutionally

imposed, then denying him the opportunity to reopen his habeas proceedings denies

him the full protection of the federal constitution and the writ of habeas corpus for

which it explicitly provides. Now that the Eleventh Circuit has declined to issue a

COA, a writ of certiorari offers Mr. Burton his only remaining path to vindicate his

constitutional rights before his scheduled execution date of March 12, 2026. And

although the issues he raised are, at their core, a matter of statutory interpretation,

the constitutional import cannot be ignored. The question is: Will this Court

interpret statutory law—AEDPA—such that a man is put to death without the full

protection he is afforded under the United States Constitution?

Respectfully submitted,

/s/ Matt Schulz

MATT SCHULZ

Counsel of Record

DONNA VENABLE

FEDERAL DEFENDERS FOR THE

MIDDLE DISTRICT OF ALABAMA

817 S. Court Street

Montgomery, Alabama 36104

(334) 834-2099

Matt_Schulz@fd.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.