             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 01-10644
                                             _______________



                                           JESSE JOE PATRICK,

                                                                 Petitioner-Appellant,

                                                  VERSUS

                                            JANIE COCKRELL,
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                                 Respondent-Appellee.


                                      _________________________

                              Appeal from the United States District Court
                                  for the Northern District of Texas
                                   _________________________

                                               March 13, 2002




Before SMITH, BENAVIDES, and DENNIS,                        Jesse Patrick applies for a certificate of ap-
  Circuit Judges.                                        pealability (“COA”) to challenge the denial of
                                                         habeas corpus relief. We deny the application.
JERRY E. SMITH, Circuit Judge:*
                                                                               I.
                                                            Patrick was convicted of capital murder and
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                            *
lished and is not precedent except under the limited         (...continued)
                                      (continued...)     circumstances set forth in 5TH CIR. R. 47.5.4.
sentenced to death; the conviction was af-                        The parties offer differing versions of what
firmed on direct appeal, and the Supreme                      was properly appealed from the district court.
Court denied a petition for writ of certiorari.               Patrick seeks review of the August 22 opinion
Patrick applied for and was denied habeas                     and order, contending that review of all issues
relief from a state trial court in Texas; the                 encompassed in the order is proper, because
denial was affirmed by the Texas Court of                     the grant of the second rule 60(b) motion (on
Criminal Appeals.                                             April 17) rendered his notice of appeal of May
                                                              16, 2001, timely under FED. R. APP. P. 4(a)-
    Patrick next filed for habeas relief in federal           (1)(A).     The state, though, avers that
district court, which declined to issue a writ                jurisdiction over the underlying appeal is
per an opinion and order entered August 22,                   limited to a review of the soundness of the
2000. On September 11, 2000, Patrick moved                    rulings on the first rule 60(b) motion, because
under FED. R. CIV. P. 59 to alter or amend the                our precedents require reversal of the grant of
judgment, alleging numerous errors in the                     the second rule 60(b) motion.
opinion and order. Because the motion was
untimely under FED. R. CIV. P. 6(a) and 59, it                   There is no doubt that Patrick’s rule 59(e)
ultimately was construed as a FED. R. CIV. P.                 motion was untimely. Tardy rule 59(e)
60(b) motion for relief from judgment and was                 motions are properly treated as rule 60(b)
denied on April 17, 2001.1 In the intervening                 motions. Halicki v. La. Casino Cruises, Inc.,
period, Patrick filed a rule 60(b) motion for                 151 F.3d 465, 470 (5th Cir. 1998). With the
relief from judgment, requesting the court to                 motion so construed, the district court
vacate and re-enter the order so it would be                  declined to grant relief under the rule 60(b)
timely. On the same day the court denied the                  standard for relief from judgment.
first rule 60(b) motion, it granted the second.
                                                                 Because our resolution of the second rule
                       II.                                    60(b) motion may moot the controversy over
   The parties contest the extent to which we                 the first such motion, we address it first. As
have appellate jurisdictionSSnot jurisdiction to
entertain the application for COA, but jurisdic-
                                                                 2
tion over the underlying appeal. If we de-                        (...continued)
termine that we are without jurisdiction over                 Patrick’s claim. The state’s procedural bar argu-
the underlying appeal, we will not grant a                    ment is based on Patrick’s alleged failure to de-
COA. Murphy v. Johnson, 110 F.3d 10 (5th                      velop the factual basis for his ineffective assistance
Cir. 1997) (denial of COA for failing to meet                 of counsel claim in state court. 28 U.S.C.
exhaustion requirement).2                                     § 2254(e)(2).

                                                                  As the state concedes, this argument was not
                                                              raised in the district court. Although we may raise
   1                                                          this procedural bar sua sponte in appropriate cir-
     Rule 59(e) requires such motions to be filed
within ten days. Rule 6(a) sets out the method for            cumstances, Smith v. Johnson, 216 F.3d 521, 524
calculating this ten-day period.                              (5th Cir. 2000), we do not find the circumstances
                                                              of this case appropriate for sua sponte
   2
    In its brief, the state also raises the prospect of       consideration. For one thing, because this is an
procedural bar to prevent our habeas review of                application for a COA, Patrick has not received
                                         (continued...)       notice the procedural bar would be at issue.

                                                          2
we have said, the district court granted                        Patrick would have us use rule 60(b) to
Patrick’s second rule 60(b) motion for relief               circumvent the requirement of rule 4(a)(5).
from judgment and entered a final judgment on               This we decline to do. Where the “excusable
April 17. Patrick timely filed a notice of                  neglect ” of a party results in failure timely to
appeal from this entry of final judgment. The               file an appeal, the more specific language of
question is whether the entry of a new                      rule 4(a)(5) must govern over the more
judgment, effectively resetting the appellate               general language of rule 60(b). Thus, is cases
clock for the substantive issues decided in the             such as this, the thirty-day time limit of rule
August 22 judgment, was an abuse of                         4(a)(5), not the one-year limit of rule 60(b),
discretion.                                                 prevails.4 West v. Keve, 721 F.2d 91, 95 (3d
                                                            Cir. 1983); JAMES WM. MOORE ET AL.,
   Federal Rule of Appellate Procedure 4(a)-                MOORE’S FEDERAL PRACTICE § 304.14[5] (3d
(5)(A)(i) sets a thirty-day limit on motions for            ed. 2001).
extension of time to file an appeal. Such ex-
tensions may be granted by the district court                   This conclusion does not doom the entire
on a showing of “excusable neglect.” FED. R.                application for COA. Patrick’s notice of ap-
APP. P. 4(a)(5)(A)(ii). The use of rule 60(b)               peal is still effective, but only as to the order
to extend the deadline in appellate rule 4(a) is            denying the first rule 60(b) motion and not as
generally prohibited. United States v. O’Neil,              to the original judgment denying habeas relief,
709 F.2d 361, 372 (5th Cir. 1983); Chick Kam                as to which it is untimely.
Choo v. Exxon Corp., 699 F.2d 693, 694 (5th
Cir. 1983).                                                    In that first motion, Patrick raised six is-
                                                            sues: (1) Did the district court use an
   We recognize that there are cases                        incorrect standard in reviewing the ineffective
permitting a rule 60(b) motion to set a new                 assistance of counsel claim; (2) was Patrick
date for calculating the time to appeal where
rule 4(a)(5) is not available. See, e.g., Fidelity
& Deposit Co. v. USAFORM Hail Pool, Inc.,                      3
                                                                 (...continued)
523 F.2d 744, 750-51 (5th Cir. 1975). These                 judgment, upheld the decision of the district court
cases, though, appear to rely on a failure of the           to reset the time for appeal by use of a rule 60(b)
part y to receive notice of the entry of                    motion. Id. at 396. We join the Eighth Circuit in
judgment.3                                                  refusing to follow this decision. See Zimmer St.
                                                            Louis Co. v. Zimmer Co., 32 F.3d 357 (8th Cir.
                                                            1994).
   3
      One case that arguably does not fall within
                                                               4
this class is Lewis v. Alexander, 987 F.2d 392 (6th              There is a minor exception to this scheme, not
Cir. 1993). The petitioner in Lewis failed to file a        applicable here. Where the party seeking to appeal
timely notice of appeal because it was docketed late        out of time has been prejudiced by a failure to
by the clerk (thus rendering the notice outside the         receive notice of the entry of judgment (or ruling on
thirty-day window of rule 4(a)). Petitioner’s               a motion), the district court may reopen the time
attorney failed to notice the late docketing until          for appeal, but may only grant such a motion only
after the time for filing a rule 4(a)(5) motion had         if it is made within 180 days of the entry of
lapsed. The court, apparently following cases               judgment (or a ruling) and the conditions regarding
based on a failure to receive notice of the entry of        lack of notice are met. F ED. R. APP. P. 4(a)(6).
                                       (continued...)       Patrick made no such motion.

                                                        3
deprived of effective assistance of counsel;             denial of rule 60(b) relief from the original
(3) did the court improperly deny Patrick                judgment would be an abuse of discretion.
funds under 21 U.S.C. § 848(q)(9) to develop
his claims of mental illness and childhood                                     IV.
abuse; (4) was he denied due process by the                  Patrick argues that the district court em-
refusal to submit to the jury a definition of            ployed an improper legal standard to evaluate
“deliberate”; (5) is article 37.071 of the Texas         his habeas petitionSSusing the “reasonable jur-
Code of Criminal Procedure unconstitutionally            ists” standard of Drinkard v. Johnson, 97 F.3d
vague; and (6) did the court’s refusal to define         751 (5th Cir 1996). This standard was
“deliberately” contribute to the sentence of             explicitly disapproved by the Supreme Court in
death, in violation of the Eighth Amendment?             Williams v. Taylor, 529 U.S. 362, 410 (2000)
Patrick also raises, for the first time on appeal,       (opinion of O’Connor, J.). Even if the court
a challenge to the jury charge at the sentencing         applied the incorrect standard, such error is
phase of his trial.                                      harmless if the court reached the right result.
                                                         Beazley v. Johnson, 242 F.3d 248, 257 (5th
                      III.                               Cir.), cert. denied, 122 S. Ct. 329 (2001).
   “To obtain a COA under § 2253(c), a                   Thus, our determination of whether the district
habeas prisoner must make a substantial show-            court reached the right result on the ineffective
ing of the denial of a constitutional right.”            assistance of counsel claim will also settle this
Slack v. McDaniel, 529 U.S. 473, 483 (2000).             issue.
This demonstration “includes showing that
reasonable jurists could debate whether (or,                                      V.
for that matter, agree that) the petition should             Patrick claims his counsel was
have been resolved in a different manner or              constitutionally ineffective for failing further to
that the issues presented were ‘adequate to              investigate his psychological condition and for
deserve encouragement to proceed further.’”              failing to introduce mitigating evidence of his
Id. at 484 (quoting Barefoot v. Estelle, 463             abusive childhood. Ineffective assistance
U.S. 880, 894 & n.4 (1983)).                             claims are reviewed under Strickland v.
                                                         Washington, 466 U.S. 668 (1984), which
   Patrick’s application also must be filtered           requires the petitioner to show both a failure
through the deference owed a rule 60(b) rul-             by counsel that drops below an objective
ing, which is reviewed only for abuse of dis-            standard of reasonableness and a resulting
cretion. Aucoin v. K-Mart Apparel Fashion                prejudice. Id. at 687. This prejudice must be
Corp., 943 F.2d 6, 8 (5th Cir. 1991). This re-           sufficient to undermine confidence in the
view is narrower than in a direct appeal, be-            reliability of the trial. Id.
cause it is confined to the propriety of the rule
60(b) ruling, not of the underlying action. Id.             Patrick attempts to show ineffectiveness on
To do otherwise would eviscerate the rules for           account of his attorney’s failure to make fur-
timely filing of appeals. Thus, to be entitled to        ther investigations into his psychological health
a COA, Patrick must demonstrate a denial of              and abusive childhood. He claims such
a constitutional right that is not only                  investigations would have uncovered organic
substantial enough to meet the standard of               brain damage or psychological problems.
Slack, but also substantial enough that the              There is no doubt criminal defense attorneys


                                                     4
have a duty to investigate as part of their ob-                                 VI.
ligation to provide effective assistance. Id. at             Patrick alleges improper denial of funds to
691. This duty, however, is limited by the                develop his claims of abuse and mental illness.
same reasonableness standard applicable to                A district court is authorized, on finding that
other decisions of counsel. Id.                           investigative services are “reasonably
                                                          necessary” to a habeas petitioner’s defense (to
    Patrick’s argument on this point is easily            guilt or punishment), to pay for such services.
refuted. When extensive psychological testing             21 U.S.C. § 848(q)(9). Patrick contends he
was conducted on him more than ten years                  was erroneously denied these funds. We need
after the initial trial, no organic brain damage          not address the merits of this claim, because a
was detected.5 The only psychological dis-                COA is not a prerequisite to appealing the de-
orders discerned were depression, anxiety, and            nial of § 848(q) funds. Hill v. Johnson, 210
chronic post-traumatic stress. Even with the              F.3d 481, 487 n.3 (5th Cir. 2000), cert.
benefit of hindsight, counsel’s decision not to           denied, 532 U.S. 1039 (2001).
pursue additional psychological testing was en-
tirely reasonable and did not fall below the                                     VII.
threshold of objectively reasonable                           Patrick presents three issues regarding the
competence. Furthermore, even if we were to               propriety of the trial court’s handling and use
assume the decision not to pursue additional              of the term “deliberately” to describe and eval-
testing was deficient performance, we are not             uate his mens rea. Specifically, Patrick alleges
convinced the result of the trial would have              that (1) the trial court’s refusal to submit a
been different.                                           definition of “deliberate” to the jury violated
                                                          his right to due process, (2) article 37.071 of
    Patrick also points to trial counsel’s                the Texas Code of Criminal Procedure is
decision not to present mitigating evidence of            unconstitutionally vague, and (3) the trial
his abusive childhood and possible mental                 court’s refusal to define “deliberate” resulted
illness. Patrick draws an analogy between his             in a sentence of death in violation of the
case and Williams v. Taylor, 529 U.S. 362                 Eighth Amendment.
(2000). Like the trial counsel in Williams,
Patrick’s attorney failed to offer all possible               All of these arguments depend on our find-
mitigating evidence at his disposal. Unlike the           ing a constitutional infirmity in the trial court’s
petitioner in Williams, however, Patrick has              use of the term “deliberate” in a capital case.
not uncovered significant potentially mitigating          Despite Patrick’s repeated characterizations of
evidence since trial that counsel should have             the possible problems with the use of
discovered by conducting the type of                      “deliberate,” our caselaw squarely denies any
investigation consistent with the command of              infirmities in its use.
Washington. Thus, even though Patrick’s
counsel may not have provided assistance in                  The refusal to define the term was entirely
accord with Washington, this failure did not              appropriate in light of our precedents noting
prejudice Patrick.                                        that “deliberate” has a common-sense meaning
                                                          and need not be further elucidated. Thompson
                                                          v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir.
   5
     The physician did, however, opine that further       1987) (holding that “deliberate” is “sufficiently
testing might reveal such damage.

                                                      5
clear to allow the jury to decide the special              on Penry v. Johnson (“Penry II”), 532 U.S.
issues on punishment”).6 The Thompson court                782 (2001), which clarified Penry v. Lynaugh
also was faced with an Eighth Amendment                    (“Penry I”), 492 U.S. 302 (1989).8
claim raised in the context of a challenge to the
use of the word “deliberate.” The court                        The only bar to Patrick’s raising this
construed this claim as a general due process              argument now is our usual rule refusing to
challenge to the fairness of the trial, and denied         consider arguments not raised in the district
habeas relief because “deliberate” has a                   court. North Alamo Water Supply Corp. v.
common-sense meaning. Id. at 1060. Based                   City of San Juan, 90 F.3d 910, 916 (5th Cir.
on the reasoning in Thompson, we see no                    1996) (citing Singleton v. Wulff, 428 U.S. 106,
constitutional problem with § 37.071.7                     120 (1976)). We recognize an exception to
                                                           this rule where “the issue involved is a pure
                      VIII.                                question of law and a miscarriage of justice
   Patrick challenges the jury charge used dur-            would result from our failure to consider it.”
ing the sentencing portion of his trial. He                Id.
bases this challenge on Robertson v. Cockrell,
279 F.3d 1062 (5th Cir. 2002). There, we                      The timing of Patrick’s Robertson
granted habeas relief to a petitioner who had              argument precludes any suggestion of a
received a jury instruction almost identical to            miscarriage of justice. The Supreme Court
that in Patrick’s case. Our panel in turn relied           granted certiorari in Penry II on November 27,
                                                           2000, and issued its opinion on June 4, 2001.
                                                           The grant of certiorari was during the
   6
                                                           pendency of Patrick’s petition before the
    See also Nethery v. Collins, 993 F.2d 1154,
                                                           district court; the opinion was handed down
1162 (5th Cir. 1993) (same); Milton v. Procunier,
                                                           well before Patrick filed his original brief with
744 F.2d 1091, 1095-96 (5th Cir. 1984) (same).
                                                           this court. His failure to raise an argument
   7
       In relevant part, this section reads,               based on Penry II belies any claim he may
                                                           have to an exception to our normal appellate
   On conclusion of the presentation of the                waiver rule.
   evidence, the court shall submit the
   following three issues to the jury:                        There is an additional reason Patrick is not
                                                           entitled to raise a Penry II argument before
          (1) whether the conduct of the                   this panel. A Penry claim must be based on
          defendant that caused the death of               mitigating evidence actually presented, not evi-
          the deceased was committed                       dence that merely could have been presented.
          deliberately and with the                        Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir.
          reasonable expectation that the
                                                           1999). Patrick has not raised sufficient
          death of the deceased or another
          would result.
                                                           mitigating evidence to warrant relief under
                                                           Penry II and Robertson. Indeed, his main
TEX. CODE CRIM. P ROC. ANN. art. 37.071(b)(1)              contention in support of his ineffective
(Vernon 1990). This section has been amended               assistance of counsel claim was his counsel’s
several times since Patrick’s sentencing. See, e.g.,
1991 Tex. Sess. Law Serv. ch. 838; 1999 Tex.
                                                              8
Sess. Law Serv. ch. 140.                                          Penry v. Lynaugh, 492 U.S. 302 (1989).

                                                       6
failure to offer mitigating evidence.

   The application for a COA is DENIED.




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