      Case: 18-70029          Document: 00514760150             Page: 1   Date Filed: 12/13/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                            No. 18-11265                             FILED
                                                                             December 13, 2018
                                                                                Lyle W. Cayce
In re: JUAN RAMON MEZA SEGUNDO,                                                      Clerk

                  Movant
-------------------------------------------------------------
consolidated with 18-70029

JUAN RAMON MEZA SEGUNDO

                 Petitioner - Appellant

 v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTION DIVISION,

                  Respondent - Appellee




                      Appeals from the United States District Court
                           for the Northern District of Texas
                                 USDC No. 4:10-CV-970


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Juan Segundo was sentenced to death for breaking into eleven-year-old
Vanessa Villa’s bedroom, raping, and strangling her. Segundo appeals the


        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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district court’s order treating his Rule 60(b) motion as a successive application
for habeas relief and transferring it to this court. Finding his arguments
unpersuasive, we AFFIRM.
                         FACTS AND PROCEEDINGS
      A Texas jury convicted and sentenced Segundo to death for the capital
murder of Vanessa Villa. Eventually Segundo filed a petition for federal habeas
relief. The district court denied relief. This court denied a COA. Segundo v.
Davis, 831 F.3d 345 (5th Cir. 2016). The Supreme Court denied Segundo’s
petition for certiorari. Segundo v. Davis, 137 S. Ct. 1068 (2017).
      Segundo filed a motion for relief from judgment in the district court,
pursuant to Federal Rule of Civil Procedure 60(b). The district court held that
Segundo’s motion constituted a successive habeas petition and transferred it
to this court. In the alternative, the district court found that if Segundo’s
motion constituted a Rule 60(b)(6) motion, it would not be granted. It is this
decision that Segundo appeals.
                            STANDARD OF REVIEW
      “We review a district court’s determination as to whether a Rule 60(b)
motion constitutes a second-or-successive habeas petition de novo.” In re
Edwards, 865 F.3d 197, 202–03 (5th Cir. 2017) (per curiam). 1
                                   DISCUSSION
      “Rule 60(b) allows a party to seek relief from a final judgment, and
request reopening of his case, under a limited set of circumstances including
fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S.
524, 528 (2005). Besides identifying such a non-merits-based mistake, a


      1   Both parties describe our Edwards holding as an unpublished order. Though we
initially released it as an unpublished opinion, we designated it for publication shortly
thereafter.
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movant is required “to show extraordinary circumstances justifying the
reopening of a final judgment.” Id. at 535 (internal quotation omitted). But
“[u]sing Rule 60(b) to present new claims for relief[,] . . . even claims couched
in the language of a true Rule 60(b) motion[,] . . . circumvents AEDPA’s
requirement that a new claim be dismissed unless it relies on either a new rule
of constitutional law or newly discovered facts.” Id. at 531. So, a “federal court
examining a Rule 60(b) motion should determine whether it . . . presents a new
habeas claim (an asserted federal basis for relief from a state court’s judgment
of conviction) . . . . If the Rule 60(b) motion does . . . then it should be treated
as a second-or-successive habeas petition and subjected to AEDPA’s limitation
on such petitions.” Edwards, 865 F.3d at 203–04 (internal quotations omitted).
      The district court examined Segundo’s claims and concluded that
“[a]lthough Segundo’s motion is couched in terms of Rule 60(b), it is actually a
successive habeas petition” because it raises and extensively briefs various
substantive claims related to ineffective assistance of counsel. On appeal,
Segundo contends that the district court misconstrued his motion. He
maintains that he has properly identified one non-merits-based defect in the
integrity of the federal habeas proceedings—the use of an erroneous legal
standard to deny him services guaranteed by 18 U.S.C. § 3599. All of the
additional issues raised in his motion are, according to Segundo,
“extraordinary circumstances” justifying the reopening of the proceedings.
      This is a clever argument because if we accept it, it would allow habeas
petitioners to shoehorn all of their merits-based arguments into a Rule 60(b)
motion. And courts would be forced to delve into those arguments to evaluate
whether they constitute “extraordinary circumstances.” But neither our
caselaw nor prudence support such an approach.


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      For example, Gonzalez approvingly notes that where a petitioner
conceals merits-based claims behind straightforward, valid claims, “[v]irtually
every Court of Appeals . . . has held that such a pleading, although labeled a
Rule 60(b) motion, is in substance a successive habeas petition and should be
treated accordingly.” 545 U.S. at 530–32. And we have repeatedly applied this
principle to identify all of the claims raised in a particular petition and classify
that petition accordingly—as a Rule 60(b) motion or successive habeas petition.
See e.g., In re Coleman, 768 F.3d 367, 371–72 (5th Cir. 2014) (per curiam);
Runnels v. Davis, No. 17-70031, 2018 WL 3913662, at *6–7 (5th Cir. Aug. 14,
2018); In re Jasper, 559 F. App’x 366, 371 (5th Cir. 2014).
      The district court carefully demonstrated that several of the so-called
“extraordinary circumstances” identified by Segundo were actually successive
habeas claims. In particular, Segundo’s motion briefly discusses the supposed
non-merits-based defect remediable under Rule 60(b) and then extensively
raises and relitigates ineffective assistance of counsel claims of various sorts.
As the district court rightly observed, “[t]he motion . . . seeks to present new
evidence and new theories of ineffective assistance of counsel that constitute
new claims.” Labeling these claims “extraordinary circumstances” does not
conceal their true identity.
      Segundo claims that the recent Supreme Court opinion in Buck v. Davis
adopts an approach allowing petitioners to obtain review of claims that would
otherwise be classified as successive by referring to them as “extraordinary
circumstances.” But Buck does no such thing. Instead it appears to stand only
for the proposition that the “infusion of race as a factor for the jury” can be
itself “extraordinary” in “nature.” Buck v. Davis, 137 S. Ct. 759, 778 (2017).
Indeed, Justice Thomas was correct to note that the opinion in Buck does not
announce “any new principles of law[,] . . . leav[ing] untouched . . . established
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principles governing . . . Rule 60(b)(6) motions.” Id. at 786 (Thomas, J.,
dissenting).
       Accordingly, we have continued to carefully police purported Rule 60(b)
motions for signs that they are successive habeas petitions in disguise. See e.g.,
Haynes v. Davis, 733 F. App’x 766, 769 (5th Cir. 2018) (“[W]hile the viability of
a petitioner’s underlying constitutional claim may be tangentially relevant to
the Rule 60(b) analysis, the Rule may not be used to attack the substance of
the federal court’s resolution of a claim on the merits.” (internal citations and
quotations omitted)).
       For example, in Preyor v. Davis we considered a Rule 60(b) motion that
was similar to Segundo’s. 704 F. App’x 331 (5th Cir. 2017) (per curiam). Preyor,
like Segundo, argued “that the fact that his motion identified a compelling . . .
claim of [ineffective assistance of counsel] does not make the motion a
successive petition, because it did so only to demonstrate why the court’s
equitable intervention is appropriate.” Id. at 339. But because, as here, that
“compelling” claim was the focus of the motion, and reopening the proceedings
to relitigate it is the clear objective of the filing, we held that “reasonable jurists
would not find debatable the . . . determination that [the] Rule 60 motion
should be treated as a successive habeas petition.” Id. at 340. We see no reason
to stray from this approach and consequently affirm the district court. 2




       2  The parties have briefed several additional issues related to the propriety of the
district court’s alternative holdings. But since the classification of Segundo’s motion as a
successive petition is jurisdictional, we need not discuss them.
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                                      CONCLUSION
       For the foregoing reasons, the district court’s decision to treat Segundo’s
Rule 60(b) motion as a successive habeas petition and transfer it for want of
jurisdiction is AFFIRMED. 3,4




       3   Because the district court’s decision to transfer Segundo’s motion for want of
jurisdiction was proper, Segundo was free to seek authorization to proceed, as a successive
petition. However, when this court scheduled briefing on that question, Segundo declined to
proceed, indicating that he is “not seeking authorization to file a successive petition” and does
not “anticipate filing a separate motion for authorization” as would be required. For this
reason, the transferred petition has been abandoned and consequently the appeal is
DISMISSED.
        4 The district court also transferred Segundo’s motion for a stay of execution. However,

the Texas Court of Criminal Appeals stayed Segundo’s execution on October 5, 2018, mooting
the issue before this court. Consequently, the motion for a stay is DENIED.
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