     Case: 18-70024      Document: 00515121637         Page: 1    Date Filed: 09/17/2019




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

                                      No. 18-70024                           FILED
                                                                    September 17, 2019
                                                                        Lyle W. Cayce
RAMIRO F. GONZALES,                                                          Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-165


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Ramiro Gonzales seeks a COA to challenge the district court’s
dismissal of his Rule 60(b)(6) motion as an unauthorized successive petition
over which it lacked jurisdiction. Because our precedent squarely establishes
that Gonzales’s motion is not a successive petition, we GRANT a COA on this
issue and VACATE the portion of the district court’s order dismissing



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 18-70024
Gonzales’s motion as successive. Gonzales further requests a COA on the
district court’s alternative ruling that, if his Rule 60(b) motion was not a
successive petition, it should be denied. Because reasonable jurists could not
debate the correctness of the district court’s denial of relief under Rule 60(b)(6),
we DENY a COA on this issue.
                                              I
       We previously discussed the facts and procedural history in this case at
length in our 2015 decision denying a COA. See Gonzales v. Stephens, 606 F.
App’x 767, 768 (5th Cir. 2015). Relevant here, a jury found Gonzales guilty of
capital murder and sentenced him to death. Id. at 768–70. The Texas Court
of Criminal Appeals (CCA) affirmed Gonzales’s conviction and death sentence
on direct appeal and denied his state habeas application. Id. at 771.
       In 2011, Gonzales filed a federal habeas petition under 28 U.S.C. § 2254
claiming, among other things, that his trial counsel were ineffective for failing
to obtain experts to present mitigating evidence that Gonzales suffered from
Fetal Alcohol Spectrum Disorder (FASD). 1                   The district court denied
Gonzales’s request for expert funding under 18 U.S.C. § 3599(a) and denied his
ineffective assistance of counsel (IATC) claim, finding that it was procedurally
defaulted and, alternatively, that it “would fail on the merits.” Id. at 770. We
denied a COA, reasoning that “[t]here is no evidence suggesting that
Gonzales’s trial counsel conducted less than a reasonable investigation” and
that, specifically, trial counsel was not ineffective for failing to obtain experts
to present mitigation evidence of FASD. Id. at 771–72.



       1 The district court stayed proceedings in federal court to allow Gonzales to exhaust
this and other newly presented claims in state court. The CCA dismissed Gonzales’s state
habeas application as an abuse of the writ and denied a pending motion for investigative
funding in the same order. See Ex Parte Gonzales, WR-70,969-01, 2012 WL 340407, at *1
(Tex. Crim. App. Feb. 1, 2012). After the state court’s judgment, the district court lifted the
stay on Gonzales’s federal habeas proceeding.
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                                 No. 18-70024
      In 2018, the Supreme Court decided Ayestas v. Davis, in which it rejected
this court’s previous articulation of the standard for obtaining funding for
“investigative, expert, or other reasonably necessary services” under § 3599(a).
138 S. Ct. 1080, 1092 (2018) (internal quotations omitted). In light of Ayestas,
Gonzales filed a Rule 60(b)(6) motion in the district court, challenging its
earlier denial of funding for an expert investigation to support his IATC claim.
Gonzales argued that the denial of expert funding under this court’s prior,
incorrect standard resulted in a defect in the integrity of his federal
proceedings and that the Ayestas decision constituted extraordinary
circumstances justifying relief under Rule 60(b)(6). The district court denied
the Rule 60(b) motion, determining that (1) the motion constituted an
unauthorized successive habeas petition that it lacked jurisdiction to consider;
and (2) alternatively, no extraordinary circumstances existed under Rule
60(b)(6) to justify relief from judgment. The district court denied a COA on
both its dismissal for lack of jurisdiction and its alternative denial of the
motion.
                                       II
      “Before a second or successive application permitted by [§ 2244] 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.”
28 U.S.C. § 2244. “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).
      A Rule 60(b) motion is properly construed as a successive habeas petition
where it “seeks to add a new ground for relief,” or “attacks the federal court’s
previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524,
532 (2005). However, motions that “attack[], not the substance of the federal
court’s resolution of a claim on the merits, but some defect in the integrity of
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                                        No. 18-70024
the federal habeas proceedings,” are not successive petitions.                       Id. Since
issuance of the district court’s order in this case, this court has held that a Rule
60(b)(6) motion seeking reconsideration based on Ayestas’s change to the
standard for funding requests, so long as it does not also revisit the merits of
other claims, goes to a defect in the proceedings rather than the merits and
therefore “is not a successive habeas petition.” Crutsinger v. Davis, 929 F.3d
259, 264, 266 (5th Cir. 2019). In light of Crutsinger, the district court erred in
determining that Gonzales’s Rule 60(b) motion was a successive petition.
Accordingly, we GRANT a COA on this issue and, 2 reaching the merits of
Gonzales’s claim on this point, 3 VACATE the district court’s judgment of
dismissal.
       Because the district court’s determination that the motion was a
successive petition was incorrect, it had jurisdiction to engage in what it called
the “alternative analysis”—whether Gonzales was entitled to relief under Rule
60(b)(6). We now take up that question. See Crutsinger, 929 F.3d at 266
(considering district court’s analysis under Rule 60(b)(6) because the district




       2  Although Gonzales asserts in his opening brief that a COA is not required for us to
consider this issue, we held in Resendiz v. Quarterman that “‘[a] district court’s dismissal of
a motion on the ground that it is an unauthorized successive collateral attack constitutes a
final order within the scope of 28 U.S.C. § 2253(c), and therefore a certificate of appealability
is required.’” 454 F.3d 456, 458 (5th Cir. 2006). Gonzales argues for the first time in his
reply brief that Resendiz was tacitly overruled by the Supreme Court’s decision in Harbison
v. Bell, 556 U.S. 180 (2009). However, we do not consider arguments raised for the first time
in a reply brief. See In re Katrina Canal Breaches Litig., 620 F.3d 455, 460 (5th Cir. 2010).
A COA is therefore required for Gonzales to proceed.
        The State argues that Gonzales has forfeited his ability to seek a COA on this issue
because he failed to explicitly request one. Nevertheless, we construe Gonzales’s appeal of
this issue as a petition for a COA. Cf. Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.
1996) (en banc) (“[W]e have oft stated that the relief sought, that to be granted, or within the
power of the Court to grant, should be determined by substance, not a label.” (cleaned up)).
        3 See Kunkle v. Dretke, 352 F.3d 980, 983 (5th Cir. 2003) (granting COA and reaching

the merits in the same opinion).
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                                      No. 18-70024
court “ha[s] jurisdiction to consider the Rule 60(b)(6) motion” where
petitioner’s motion “is not a successive habeas petition”).
                                          III
      We ordinarily review a district court’s denial of a Rule 60(b) motion for
abuse of discretion. See Buck v. Davis, 137 S. Ct. 759, 777 (2017). However, a
COA is required to proceed with a claim of error as to the district court’s denial
of relief under Rule 60(b). See Ochoa Canales v. Quarterman, 507 F.3d 884,
888 (5th Cir. 2007).      Accordingly, at the COA stage, we ask “whether a
reasonable jurist could conclude that the District Court abused its discretion
in declining to reopen the judgment.” Buck, 137 S. Ct. at 777.
      Rule 60(b) allows for “wide discretion in courts,” but “relief under Rule
60(b)(6) is available only in extraordinary circumstances.” Id. (cleaned up).
Such circumstances “may include, in an appropriate case, ‘the risk of injustice
to the parties’ and ‘the risk of undermining the public’s confidence in the
judicial process.’” Id. at 778 (quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863–64 (1988)). However, courts consistently recognize
that a change in law after final judgment on a habeas petition does not
necessarily constitute extraordinary circumstances. Compare Gonzalez, 545
U.S. at 536; Adams v. Thaler, 679 F.3d 312–20 (5th Cir. 2012) (explaining that
Supreme Court decisions changing governing law on procedural default did not
constitute extraordinary circumstances), with 588 U.S. ___ (2019) (Sotomayor,
J., concurring) (“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.”).
      Gonzales argues in his motion for COA that it was not merely the change
in decisional law brought about in Ayestas, but also the ineffectiveness of both
his trial counsel and state habeas counsel, that created extraordinary
circumstances warranting relief from judgment. However, we already rejected
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                                  No. 18-70024
Gonzales’s contention that his state habeas counsel was ineffective, denying a
COA on that issue in our earlier ruling. See Gonzales, 606 F. App’x at 772–73.
In that same ruling, we held that “Gonzales has failed to raise a substantial
claim of ineffective assistance of trial counsel.” Id. at 772. On these facts, then,
no reasonable jurist could conclude that the district court abused its discretion
in finding no extraordinary circumstances exist. See Buck, 137 S. Ct. at 777.
Accordingly, we DENY a COA as to the district court’s judgment denying
Gonzales’s Rule 60(b) motion.
                                        ***
      For these reasons, a COA is GRANTED as to the district court’s
successiveness finding and the portion of the district court’s judgment
dismissing Gonzales’s motion as successive is VACATED, but a COA is
DENIED as to the district court’s determination that Gonzales was not entitled
to relief under Rule 60(b)(6). Because this disposition does not entitle Gonzales
to relief, remand is unnecessary.




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