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

                                                                                     FILED
                                                                                    July 22, 2008
                                       No. 08-70029
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
DALE LEO BISHOP

                                                  Petitioner-Appellant
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:04-CV-319


Before KING, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Dale Leo Bishop, a prisoner scheduled for execution
on July 23, 2008, filed an emergency application for a certificate of appealability
(“COA”) to appeal the district court’s denial of his motion for relief from
judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. The
district court properly interpreted Bishop’s Rule 60 motion as a successive
petition for habeas relief, declined to consider the application, and transferred


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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the case to this court. Although Bishop has fashioned his pleading as a request
for a COA, we interpret it as a motion for an order authorizing the district court
to consider a successive habeas application, in accordance with 28 U.S.C.
§ 2244(b)(3)(A). He has also requested a stay of execution pending appeal. For
the following reasons, we deny his request for an order pursuant to
§ 2244(b)(3)(A), and we deny his application for a stay of execution as moot.
                       I. FACTS AND PROCEEDINGS
      The Mississippi Supreme Court affirmed Bishop’s conviction and sentence
in February 2002 and denied his motion for rehearing in April 2002. See Bishop
v. State, 812 So. 2d 934, 937 (Miss. 2002) (en banc). Bishop filed a petition for a
writ of certiorari to the United States Supreme Court, which was denied on
October 21, 2002. See Bishop v. Mississippi, 537 U.S. 976 (2002). Bishop then
returned to the Mississippi Supreme Court and filed an application for post-
conviction habeas relief, alleging eight grounds for relief; the Mississippi
Supreme Court denied his application for habeas relief in July 2004. See Bishop
v. State, 882 So. 2d 135, 156 (Miss. 2004) (en banc). Bishop then appealed that
denial of post-conviction relief to the United States Supreme Court, which
denied his petition for a writ of certiorari on February 28, 2005. See Bishop v.
Mississippi, 543 U.S. 1189 (2005).
      Bishop next sought relief by filing a petition for a writ of habeas corpus in
the United States District Court for the Northern District of Mississippi on
March 28, 2005, which he amended on October 16, 2005. He alleged thirteen
grounds for relief. The district court denied Bishop’s petition for habeas relief
and entered judgment on August 16, 2007. See Bishop v. Epps, No. 1:04-CV-319,
2007 WL 2363465, at *36 (N.D. Miss. Aug. 16, 2007). The district court also
denied Bishop’s application for issuance of a COA dated September 13, 2007, in
which he raised four claims, including (1) ineffective assistance of post-conviction
counsel, (2) ineffective assistance of trial counsel, (3) improper jury instruction,

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and (4) improper waiver of jury sentencing. Bishop v. Epps, No. 1:04-CV-319,
2007 WL 2727228, at *1, 5 (N.D. Miss. Sept. 17, 2007). Bishop moved for
issuance of a COA in this court, raising the same claims he presented to the
district court; we denied Bishop’s motion on February 11, 2008. Bishop v. Epps,
265 F. App’x 285, 295 (5th Cir. 2008).
      On June 30, 2008, Bishop moved for leave to file a successive post-
conviction petition in the Mississippi Supreme Court; on July 9, 2008, the court
denied Bishop’s motion as successive and time-barred, and “[w]ithout waiving
the procedural bars,” further held that “Bishop has failed to make a substantial
showing of the denial of a state or federal right.” Bishop v. Mississippi, No.
2008-DR-01122, slip op. at 2 (Miss. July 9, 2008). On July 17, 2008, Bishop then
moved under Rule 60 for relief from the district court’s August 16, 2007
judgment denying his first habeas petition and moved for a stay of execution
pending the disposition of that motion. However, because Bishop “‘in effect
ask[ed] for a second chance to have the merits determined favorably,’” the
district court treated Bishop’s Rule 60 motion as a successive habeas application,
found that it lacked jurisdiction to consider the motion under 28 U.S.C.
§ 2244(b)(3)(A), and transferred the case to this court to determine whether a
successive habeas petition should be allowed. Bishop v. Epps, No. 1:04-CV-319,
slip op. at 2, 5 (N.D. Miss. July 18, 2008) (quoting Gonzalez v. Crosby, 545 U.S.
524, 532 n.5 (2005)).
                               II. DISCUSSION
      As a state prisoner, Bishop is allowed to apply for post-conviction habeas
relief under 28 U.S.C. § 2254. Federal law instructs that “[b]efore a second or
successive application [for habeas relief under § 2254] 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(b)(3)(A). “[A] Rule 60(b) motion is not to be treated as a successive

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habeas petition if the motion attacks a defect in the integrity of the federal
habeas proceedings and does not raise a new ground for relief or attack the
district court’s resolution of a claim on the merits.”                    Ochoa Canales v.
Quarterman, 507 F.3d 884, 887 (5th Cir. 2007) (citing the Supreme Court’s
holding in Gonzalez v. Crosby, 545 U.S. 524, 530–32 (2005)).1
       In order to determine whether the district court properly construed
Bishop’s Rule 60 motion as a successive petition, we turn to the record. A review
of the record reveals that, after affirming Bishop’s conviction and sentence, the
Mississippi Supreme Court ordered the Mississippi Office of Capital Post-
Conviction Counsel (“MOCPCC”) to represent him. On April 18, 2003, Robert
M. Ryan, the director of MOCPCC, represented Bishop and petitioned the
Mississippi Supreme Court for post-conviction relief on Bishop’s behalf. After
the state court denied Bishop’s petition, MOCPCC asked the court to appoint
Stephen Eberhardt and Victor Fleitas in connection with federal habeas
proceedings. Eberhardt and Fleitas were appointed on October 25, 2004, and,
on March 28, 2005, they filed Bishop’s first habeas petition in federal court. In
that petition, Bishop argued that he received ineffective assistance of counsel
during state post-conviction proceedings; specifically, he argued that



       1
          Bishop argues that Rule 60(b) is the proper procedural vehicle for his claim. He
contends that the district court incorrectly concluded in its ruling on Bishop’s original habeas
petition that the state court would apply a state procedural bar to Bishop’s unexhausted
claims. See Ruiz v. Quarterman, 504 F.3d 523, 526–27 (5th Cir. 2007). This argument fails
at the threshold because upon Bishop’s recent return to state court, the Mississippi Supreme
Court did apply a state procedural bar to Bishop’s previously unexhausted claims. See Bishop
v. Mississippi, No. 2008-DR-01122-SCT, at 2 (Miss. July 9, 2008) (“The Court finds that
Bishop’s motion is procedurally barred as a successive writ and Bishop does not meet any of
the exceptions to the bar.”).
        As we explained in Ruiz: “The federal court below would have had no federal claim
before it if . . . the [court] applied an independent and adequate state law ground to deny relief.
Moreover the petition would then have been successive and Rule 60 would not allow Ruiz to
escape the successive writ limits of AEDPA.” 504 F.3d at 527. Here, the Mississippi Supreme
Court applied an independent and adequate state law ground to deny Bishop relief. Therefore,
Rule 60(b) does not allow Bishop to escape the successive writ limits of AEDPA.

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Mississippi’s statute of limitations for filing post-conviction petitions rendered
“counsel . . . unable to properly investigate and prepare a complete presentation
of Petitioner’s claims of deprivation of federal constitutional rights to the
Mississippi Supreme Court.” He acknowledged that his claim had not been
presented to the Mississippi Supreme Court, and that the U.S. Constitution
guaranteed no right to effective assistance of counsel during post-conviction
proceedings. He argued, however, that Mississippi law recognized that right and
that the ineffectiveness of his counsel demonstrated cause sufficient to allow
review of his defaulted claims. The district court found that his claim was not
cognizable on federal habeas review. See Bishop v. Epps. No. 1:04-CV-319, 2007
WL 2363465, at *35 (N.D. Miss. Aug. 16, 2007). After the district court denied
Bishop’s request for a COA to appeal its decision, we considered the same issue
in Bishop’s request in this court for a COA and held that “[b]ecause Bishop has
no right to counsel in post-conviction proceedings, he can allege no
unconstitutional denial of the effective assistance of post-conviction counsel.”
Bishop v. Epps, 265 F. App’x 285, 290 (5th Cir. 2008) (citing 28 U.S.C. § 2254(i);
Wainwright v. Torna, 455 U.S. 586, 587–88 (1982)). In early June 2008, James
Craig was appointed through the MOCPCC to represent Bishop. On June 30,
2008, Craig filed a successive state habeas petition on Bishop’s behalf, which
was denied by the Mississippi Supreme Court on July 7, 2008. He then filed on
Bishop’s behalf a Rule 60 motion for relief from judgment in the district court on
July 17, 2008.
      In his Rule 60 motion before the district court, Bishop again challenges the
effectiveness of his state post-conviction counsel. It appears at first glance that
Bishop’s claims for ineffective assistance of counsel in his first federal habeas
petition and his Rule 60 motion are identical and, therefore, may be subject to
dismissal. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or
successive habeas corpus application under section 2254 that was presented in

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a prior application shall be dismissed.”). However, the basis for his claim in his
first federal habeas petition centered on Mississippi’s passing of a rule that
shortened the limitations period for filing state habeas petitions. Bishop argued
that the shortened timeframe did not allow Ryan, his state post-conviction
counsel, time to prepare effectively. Here, Bishop argues that Ryan willfully
disregarded material that may have been germane to his state habeas petition
and failed to obtain expert analysis of his possible mental or behavioral issues.
Therefore, because Bishop’s Rule 60 motion lists a new claim for ineffective
assistance of post-conviction counsel which challenges his conviction and
sentence—and does not simply seek to cure a procedural defect—the district
court correctly treated the Rule 60 motion as a successive habeas petition under
Gonzales and Ochoa Canales.
      “The court of appeals may authorize the filing of a second or successive
[habeas] application only if it determines that the application makes a prima
facie showing that the application satisfies the requirements of this subsection.”
28 U.S.C. § 2244(b)(3)(C). According to § 2244(b),
      (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)(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
            the 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.



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Bishop does not rely on a new rule of constitutional law to justify an order
allowing his successive petition. Rather, he argues that, until recently, he had
no opportunity to discover Ryan’s incompetence during state post-conviction
proceedings. But, as we observed when we denied Bishop’s request for a COA
to appeal the denial of his first federal habeas petition, federal law prohibits his
claim: “The ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” 28 U.S.C. 2254(i); see also Matchett v.
Dretke, 380 F.3d 844, 849 (5th Cir. 2004) (per curiam) (“[A] state prisoner may
not cite the ineffective assistance of state habeas counsel as cause for a
procedural default even for cases involving constitutional claims that can only
be raised for the first time in state post-conviction proceedings.” (internal
quotations omitted)).       Therefore, allowing the district court to consider a
successive habeas petition which states a claim that is not cognizable would be
futile.
          Our decision is final and resolves the issue entirely. “The grant or denial
of an authorization by a court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a petition for rehearing or
for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).
                                 IV. CONCLUSION
          Bishop’s emergency motion for a COA, which we have construed as a
motion for an order authorizing the district court to consider a successive habeas
application in accordance with 28 U.S.C. § 2244(b)(3)(A), is DENIED. His
request for a stay of execution pending appeal is DENIED as moot.




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