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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                      ___________________

                                         No. 14-50245
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      ___________________                       FILED
                                                                          March 19, 2014
                                                                           Lyle W. Cayce
In re: RAY JASPER,                                                              Clerk

                                          Movant
--------------------------------------------------
Consolidated with 14-70012

RAY JASPER,

                                       Petitioner - Appellant

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,


                                       Respondent - Appellee



                     Appeals from the United States District Court
                           for the Western District of Texas
                                USDC No. 5:08-CV-735


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      Petitioner Ray Jasper is scheduled to be executed in Texas after 6 PM
on Wednesday, March 19. Jasper filed a Rule 60(b)(6) motion in district court
and a request for a stay of execution. The district court determined that
Jasper’s Rule 60(b)(6) motion constituted a second-or-successive habeas
petition, and transferred Jasper’s Rule 60(b)(6) motion to this court under 28
U.S.C. § 1631 to determine whether it satisfies the requirement for a
successive petition under 28 U.S.C. § 2244(b). The district court denied
Jasper’s request for a certificate of appealability. Meanwhile, Jasper has
separately appealed the district court’s determination, filed a request for a
certificate of appealability, and filed a request for an emergency stay of
execution pending appeal.
      For the reasons that follow, and due to the emergency nature of this
appeal, we (1) treat the notice of appeal as a motion for authorization, and
DENY authorization to file a second-or-successive habeas petition, (2)
GRANT the request for a COA insofar as is necessary and AFFIRM the
district court’s determination that Jasper did not file his 60(b)(6) motion
within a reasonable time, and (3) DENY a stay of execution.


                       FACTS AND PROCEEDINGS
      Petitioner Ray Jasper was convicted of robbery-related capital murder
and sentenced to death in Bexar County, Texas, in January 2000. During
jury selection for Jasper’s criminal trial, the prosecutor exercised a
preemptory strike against Vernon Galloway, a black venireman.           Jasper’s
trial counsel raised a Batson claim in response to the strike, which the trial
court rejected. See Batson v. Kentucky, 476 U.S. 79 (1986).
      The Texas Court of Criminal Appeals affirmed Jasper’s conviction and
sentence on direct appeal in 2001. Jasper v. State, 61 S.W.3d 413 (Tex. Crim.
App. 2001); see also id. at 422 (rejecting Batson challenge). Jasper did not file
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a cert petition relating to the denial of his direct appeal. Jasper then filed a
state habeas petition.    The Court of Criminal Appeals denied relief on
Jasper’s habeas petition in 2008. Ex parte Jasper, No. WR-68,832-01, 2008
WL 3855114 (Tex. Crim. App. Aug. 20, 2008).
      Jasper next filed a federal habeas petition in the Western District of
Texas in July 2009. The Western District denied habeas relief, but granted a
COA on Jasper’s Batson claim. See Jasper v. Thaler, 765 F. Supp. 2d 783
(W.D. Tex. 2011). The district court’s order resolved Jasper’s Batson claim on
the merits, and determined that the Court of Criminal Appeal’s resolution of
the issue was neither contrary to, nor involved an unreasonable application of
clearly established federal law, as determined by the Supreme Court. Id. at
821-23. The court’s order, however, did emphasize that his review of the
record was limited by the fact that none of the jury questionnaires, save for
the one for Mr. Galloway, were in the record. Id. at 816 n.62. A filing from
Jasper’s lawyers during the federal district court habeas proceedings suggest
that Jasper’s federal habeas counsel (who has since been replaced) attempted
to introduce the questionnaires into the record but could not find them:
      Petitioner’s current writ counsel would like to inform the Court
      that he attempted earlier in the process to supplement the record
      with the questionnaires in question. Counsel obtained an order
      from the state trial court to unseal the questionnaires and make
      them available to Mr. Jasper’s current counsel. However, after
      counsel submitted this order to the Bexar County District Clerk’s
      Office, and the clerk in charge of such records made a search for
      them, counsel was informed that the questionnaires were not
      included in the trial record, nor saved anywhere else in the
      system, and apparently do not exist anymore.
      Jasper’s counsel, however, maintained that the record without
the questionnaires provided sufficient information on which to review
Jasper’s Batson claim:


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      Counsel would like to point out that the relevant juror
      questionnaire answers of the various prospective jurors at issue
      in this claim can be ascertained from the way they were
      questioned during voir dire, as the parties have done in their
      pleading and this Court has done in its opinion.
            Counsel believes the Batson issue should be decided on the
      basis of what is in the record rather than what is not, and
      believes the record is sufficient to support his claim.

      On appeal, this court rejected Jasper’s Batson claim on the merits. See
Jasper v. Thaler, 466 F. App’x 429, 437-38 (5th Cir. 2012). This court also
explained that the lack of jury questionnaires made review of the state court
decision difficult, and meant that Jasper had an uphill battle in proving a
Batson violation:
      Jasper’s claim that Galloway was removed for racial reasons in
      violation of the Fourteenth Amendment is unpersuasive.
      Although he established a prima facie case, the failure to
      preserve the questionnaires in the record makes the comparative
      analysis he seeks difficult to conduct. Jasper has the burden of
      proving that the discrimination was purposeful. The record does
      not indicate why the questionnaires were not included in the trial
      court record, but that does not negate the fact that the burden is
      on the plaintiff to demonstrate that the prior findings were
      erroneous. There is nothing which would indicate that Jasper
      has met this burden, especially in light of AEDPA’s demanding
      standards.


Id. at 437 (internal citations omitted). The Supreme Court denied Jasper’s
subsequent cert petition. 133 S. Ct. 788 (2012). The trial court then set
Jasper’s execution date for March 19, 2014.
      In February 2014, Jasper’s present habeas counsel launched another
search for the questionnaires. During the first week of February, Jasper’s
counsel called the Bexar County District Attorney, who located copies of the
juror questionnaires in his files on February 6. Unfortunately, for a variety
of reasons, it took the district attorney until February 21 to actually send the
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forms to Jasper’s counsel. Armed with the questionnaires, Jasper filed a
subsequent habeas petition re-raising the Batson challenge in the Texas
Court of Criminal Appeals.       Jasper argued that the subsequent habeas
petition was justified by the change in Batson law created by Miller-El v.
Dretke, 545 U.S. 231 (2005), which was handed down subsequent to Jasper’s
state habeas petition’s filing, and required comparative analysis between
jurors that was only possible with the questionnaires. On March 10, in a
brief opinion, the Texas Court of Criminal Appeals dismissed Jasper’s second
habeas petition as an abuse of the writ. The Court of Criminal Appeals also
denied Jasper’s request for a stay.
      Jasper then filed a Rule 60(b)(6) motion in district court. Jasper’s 60(b)
motion alleged that the previous federal proceedings were defective because
(1) they were conducted without the aid of the now-found jury questionnaires,
and (2) the district court did not follow the dictates of 28 U.S.C. § 2254(f), and
order the state to produce the questionnaires and/or lower the presumption of
correctness applied to the state court’s factual findings. Jasper also filed a
request for a stay.
      The district court determined that (1) Jasper’s 60(b)(6) motion was not
filed within a reasonable time as required for Federal Rule of Civil Procedure
60(c)(1), (2) Jasper could not demonstrate exceptional circumstances
sufficient to justify a 60(b)(6) motion, and (3) Jasper’s 60(b)(6) motion
constituted a second-or-successive habeas petition under the test set out by
the Supreme Court in Gonzalez v. Crosby, 545 U.S. 524 (2005). Because the
district court determined that Jasper’s 60(b) motion constituted a second-or-
successive habeas petition, it transferred Jasper’s 60(b) motion to this court
for a determination of whether Jasper can meet the requirements for a
second-or-successive petition under 28 U.S.C. § 2244(b). The district court,


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having determined that Jasper is unlikely to succeed on the merits of his
motion, also denied Jasper’s request for a stay of execution.


                          STANDARD OF REVIEW
      We review a district court’s determination as to whether a Rule 60(b)
constitutes a second-or-successive habeas petition de novo.        See Ward v.
Norris, 577 F.3d 925, 932 (8th Cir. 2009).
      In reviewing the district court’s determinations to grant or deny relief
under 60(b), we will reverse only for an abuse of discretion.         Tamayo v.
Stephens, 740 F.3d 986, 990 (5th Cir. 2014). “A district court abuses its
discretion if it bases its decision on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Hesling v. CSX Trans., Inc.,
396 F.3d 632, 638 (5th Cir. 2005).
      Finally, we review the district court’s decision to deny a stay for an
abuse of discretion. Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). In
determining whether to issue a stay of execution pending appeal, we consider
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits, (2) whether the applicant will be irreparably injured
absent a stay, (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding, and (4) where the public interest
lies. Id. The party requesting a stay has the burden of showing that the
circumstances justify an exercise of judicial discretion. Id.


                                DISCUSSION
      Jasper’s Rule 60(b)(6) motion alleges two separate defects in his prior
federal habeas proceeding.     First, Jasper argues that the original habeas
proceedings were defective because the record did not include jury
questionnaires that were recently uncovered that substantiate his claimed
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Batson violation. Second, Jasper argues that the original habeas proceedings
were defective because the district court failed to apply 28 U.S.C. § 2254(f) to
order the state to produce the missing records and/or lessen the presumption
of correctness given to the state court findings of fact. We will treat each
proposed defect as a separate proposed justification for the 60(b) motion.


I.    Whether Jasper’s Petition is a Second-or-Successive Habeas
      Petition
      We must first address whether Jasper’s alleged defects in the prior
habeas proceedings constitute “claims,” and therefore second-or-successive
habeas petitions.


      A) Analysis
      In order to prevent conflicts between the strict limitations in AEDPA
on second-or-successive habeas petitions and the more lenient restrictions in
Rule 60(b) on motions for relief from final judgments, federal courts examine
Rule 60(b) motions to determine whether they are, in fact, second-or-
successive habeas petitions in disguise. See, e.g., Gonzalez, 545 U.S. at 531-
32. Under Gonzalez, a federal court examining a Rule 60(b) motion should
determine whether it presents either (1) a new habeas claim—defined as “an
asserted federal basis for relief from a state court’s judgment of conviction,”
id. at 530, or (2) “attacks the federal court’s previous resolution of a claim on
the merits, since alleging that the court erred in denying habeas relief on the
merits is effectively indistinguishable from alleging that the movant is, under
the substantive provisions of the statutes, entitled to habeas relief,” id. at
532 (footnote omitted). If either is true, then the Rule 60(b) motion should be
treated as a second-or-successive habeas petition, and subjected to AEDPA’s
limitation on such petitions. See 28 U.S.C. § 2242(b).
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      By contrast, “[t]o open the Rule 60(b) door . . . there must be a showing
of a non-merits-based defect in the district court’s earlier decision on the
federal habeas petition.” Balentine v. Thaler, 626 F.3d 842, 847 (5th Cir.
2010). Accordingly, if the Rule 60(b) motion “attacks, 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,” then the motion does not need to
be treated as a second-or-successive petition.     Gonzalez, 545 U.S. at 532.
Gonzalez further clarifies that an on the merits resolution is where a federal
court makes “a determination that there exist or do not exist grounds
entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and
(d),” and does not encompass the situation where a petitioner alleges “that a
previous ruling which precluded a merits determination was in error—for
example, a denial for such reasons as failure to exhaust, procedural default,
or statute-of-limitations bar.” Gonzalez, 545 U.S. at 532 n.4.
      We believe that insofar as Jasper’s Rule 60(b) motion argues that the
previous decision should be vacated so that Jasper can re-argue his habeas
challenge with the missing questionnaires, his Rule 60(b) motion constitutes
a second-or-successive petition.
      First, both the Supreme Court and the federal courts of appeal have
repeatedly noted that 60(b) motions raising additional facts for consideration
constitute claims, and therefore should be evaluated as second-or-successive
habeas petitions. See, e.g., id. at 531-32. As the First Circuit has noted, a
motion that “asks the district court for an opportunity to offer facts that (in
the petitioner’s view) will prove that his conviction was constitutionally
infirm,” raises “a paradigmatic habeas claim.” Rodwell v. Pepe, 324 F.3d 66,
71-72 (1st Cir. 2003).
      Second, “an attack based on the movant’s own conduct, or his habeas
counsel’s omissions, ordinarily does not go to the integrity of the proceedings,
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but in effect asks for a second chance to have the merits determined
favorably.” Gonzalez, 545 U.S. at 532 n.5 (internal citations omitted). For
example, a habeas petitioner cannot use a 60(b) motion to obtain relief when
habeas counsel mishandles designating a record on appeal. See, e.g., Gray v.
Mullin, 171 F. App’x 741, 744 (10th Cir. 2006). Though, to be sure, there is
plenty of blame to go around regarding how the jury questionnaires did not
end up in the record—they should not have been lost—records of the voir dire
indicate that the defense counsel, whose actions, absent abandonment, are
ascribed to Jasper, see, e.g., Maples v. Thomas, 132 S. Ct. 912, 922 (2012),
had a copy of the jury questionnaires and failed to designate them as part of
the record on direct appeal, see Jasper, 765 F. Supp. 2d at 803. We perceive
no error in the district court’s repeated determinations that Jasper’s counsel,
and therefore, Jasper, are primarily responsible for the questionnaires not
being in the record. 1 Jasper cannot rely on their absence to argue that the
habeas proceedings were defective.


      B) Implications
      We now address whether Jasper meets the requirements for a second-
or-successive habeas petition. We conclude he does not. Jasper “brings the
same . . . claim[] in his successive habeas petition as he did in his initial
federal habeas petition,” and accordingly Jasper’s “petition is barred under 28
U.S.C. § 2244(b)(1).” Adams v. Thaler, 679 F.3d 312, 323 (5th Cir. 2012). We
therefore deny Jasper permission to file a second-or-successive habeas
petition on the basis of the found questionnaires.


      1  Though Jasper’s brief now attempts to shift blame onto the court for not halting
habeas proceedings when “the resolution of the issue presented by Mr. Jasper could not be
undertaken with the necessary degree of confidence without the juror questionnaires,” his
belated raising of the issue is not well taken given that Jasper’s own counsel at the time
was urging the courts to decide the issue. See supra.
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II.     Federal Rule of Civil Procedure 60(c)(1) Bars Relief
        Even assuming Jasper’s Rule 60(b) motion alleging a 28 U.S.C. §
2254(f) error is a “true” Rule 60(b) motion, the district court committed no
error in determining that Jasper did not file his Rule 60(b)(6) motion on a
timely basis.
        Rule 60 requires that any “motion under Rule 60(b) must be made
within a reasonable time,” Fed. R. Civ. P. 60(c)(1), “unless good cause can be
shown for the delay.” In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). What
constitutes “good cause” for a reasonable delay “must necessarily be
evaluated on a case-by-case basis.”      Id. “The timeliness of the motion is
measured as of the point in time when the moving party has grounds to make
such a motion, regardless of the time that has elapsed since the entry of
judgment.” First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117,
120 (5th Cir. 1992). Once a party has grounds to make a Rule 60(b) motion,
however, they must bring the motion reasonably promptly, though “the
determination of reasonableness is less than a scientific exercise.” Id. at 121.
        Here, any error, if any, related to 28 U.S.C. § 2254(f) in the habeas
proceedings occurred—and was obvious—in 2011 and 2012 when the district
court and this court denied Jasper’s habeas petition. Jasper should have
appealed the error at that point on direct appeal, and we believe that the
district court’s determination that Jasper’s motion was untimely did not
constitute an error—let alone an abuse of discretion. See Tamayo, 740 F.3d at
991; see also id. (Higginbotham, J., concurring) (“I would affirm the district
court’s rejection of the Rule 60 submission as untimely.”). “[E]ven if the trial
court had applied an incorrect legal standard . . . the proper way to challenge
its ruling in the court of appeals is by appeal of its ruling, not by appeal of a
denial of a Rule 60(b) motion.” Gary W. v. Louisiana, 622 F.2d 804, 805 (5th
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Cir. 1980). “Rule 60(b) simply may not be used as an end run to effect an
appeal outside the specified time limits, otherwise those limits become
essentially meaningless.” Pryor v. U.S. Postal Serv., 769 F.2d 281, 288 (5th
Cir. 1985). 2


III.     Whether Jasper’s Execution Should Be Stayed
         Because we conclude that Jasper’s Rule 60(b) motion is either a second-
or-successive habeas petition, or untimely under Federal Rule of Civil
Procedure 60(c)(1), we believe he cannot succeed on his claims for relief.
Accordingly, we agree with the district court that Jasper has not
demonstrated his entitlement to a stay. See, e.g., Nken v. Holder, 556 U.S.
418, 434 (2009) (“It is not enough that the chance of success on the merits be
better than negligible.” (internal quotation marks omitted)); Diaz, 731 F.3d
370, 379 (5th Cir. 2013). We therefore DENY his request for a stay.


                                   CONCLUSION
         We DENY Jasper permission to file a second-or-successive habeas
petition on the basis of the missing questionnaires, AFFIRM the district
court’s determination that the Rule 60(b) motion was not timely under
Federal Rule of Civil Procedure 60(c)(1), and DENY his request for a stay.




        We also note, without deciding, that Jasper cannot likely demonstrate the required
         2

exceptional circumstances for the same reason. See, e.g., Ackermann v. United States, 340
U.S. 193, 197-98 (1950).
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JAMES L. DENNIS, Circuit Judge, concurring in the judgment:
      I concur in the majority’s judgment that petitioner-appellant Ray
Jasper, who is scheduled to be executed by the State of Texas later today,
March 19, 2014, is not entitled under the law to relief from this court. I do
not, however, join the majority in all of its reasons.
      In July 2009, Jasper filed a federal habeas corpus petition in the
district court attacking his Texas conviction and death sentence.         Among
other claims, he contended that, during the jury selection process that
preceded his trial, the state’s prosecutors discriminatorily exercised
peremptory strikes to eliminate the only prospective jurors in the pool who,
like Jasper, were black.       In particular, Jasper’s claim focused on the
prosecutor’s peremptory strike of Vernon Galloway, a black man who, when
questioned during voir dire, expressed some hesitancy about imposing the
death penalty but ultimately concluded that he could impose death if the
evidence showed it to be appropriate. The prosecutor’s strike of Galloway,
Jasper claimed, was based on his race and was therefore unconstitutional
under Batson v. Kentucky, 476 U.S. 79 (1986).
      When Jasper first brought his Batson claim to the district court, he did
so on a limited record. In the state court, prospective jurors in the pool were
required to fill out questionnaires reflecting their views on the death penalty,
the courts, the criminal justice system, and a number of other issues. Then,
during voir dire, the judge and the attorneys questioned the prospective
jurors on their questionnaire answers. Jasper’s counsel, however, did not
preserve the questionnaires, and thus, they were not made part of the district
court’s habeas corpus record. Accordingly, the ability of the district court to
review the jury selection process for race discrimination was constrained. See
Jasper v. Thaler, 765 F. Supp. 2d 783, 816 n.62 (W.D. Tex. 2011).             The
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district court denied the Batson claim. Id. at 878. On appeal, we affirmed.
Jasper v. Thaler, 466 F. App’x 429, 442 (5th Cir. 2012) (per curiam). We, like
the district court, noted that our review was constrained by the lack of
questionnaires. See id. at 437.
        After Jasper’s Batson claim failed, the state set the March 19 execution
date.       Jasper obtained a new attorney to represent him.             And, with the
execution date around the corner, Jasper’s new attorney received the jury
questionnaires that his earlier counsel had failed to preserve. Jasper now
contends that the questionnaires reveal that his Batson claim is meritorious,
and thus, should be reexamined in light of the questionnaires. On March 11,
about a week before the scheduled execution, he filed a motion in the district
court under Federal Rule of Civil Procedure 60(b)(6), asking the court to
vacate its prior judgment denying his Batson claim so that he could have the
opportunity to amend the claim and have it decided anew, in light of the
questionnaires. 1 He argued that the absence of the questionnaires in the
habeas corpus record when the district court decided the Batson claim was a
“defect in the integrity of the federal habeas proceedings.” See Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005). On March 18, one day before the scheduled
execution, the district court, working with admirable expeditiousness, denied
the Rule 60(b)(6) motion, citing a number of procedural flaws in Jasper’s
petition and concluding that Jasper’s Batson claim was not as strong as
Jasper contended. Jasper appealed, bringing the case, once again, before us.




        1Under Rule 60(b)(6), a federal court, “[o]n motion and just terms,” “may relieve a
party or its legal representative from a final judgment, order, or proceeding” for several
enumerated reasons, including mistake, newly discovered evidence, fraud, and others.
Under subsection (b)(6), the court may do the same for “any other reason that justifies
relief.”
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      Having studied the jury questionnaires and the voir dire transcript, I
do not believe that the Batson claim, as raised in the context of federal
habeas corpus, has sufficient merit to succeed.           Jasper contends that,
Galloway and a number of the non-black jurors all indicated on their
questionnaires that they had some doubts about the death penalty or
hesitancy towards imposing it. Thus, Jasper concludes, the fact that it was
only Galloway, and not the non-black jurors, who the prosecutor struck
indicates that the prosecutor did not truly eliminate Galloway from the jury
for his views on the death penalty, as the prosecutor claimed, but rather for
his race.   The claim has intuitive logic.     However, as Jasper concedes,
Galloway answered nine of the questionnaire’s questions in a manner that
the prosecutor found troubling for the state’s case for death, and none of the
non-black jurors answered so many. The non-black jurors who, during voir
dire, expressed similar or greater levels of discomfort with imposing death as
Galloway all answered appreciably fewer “anti-death-penalty” questions on
their questionnaires as did Galloway. When the prosecutor explained his
reasons for striking Galloway, the prosecutor pointed to those nine answers.
      Under the high standard of review on habeas corpus, I cannot conclude
that the Texas state courts were unreasonable in failing to find that the
prosecutor’s explanation was pretext for race discrimination. See 28 U.S.C.
§ 2254(d)(1) (federal habeas corpus court will overturn state court’s resolution
of a claim only if it was “contrary to, or involved an unreasonable application
of, clearly established Federal law”). Because I do not think the Batson claim
has ultimate merit on habeas corpus, I do not think there are “extraordinary
circumstances” here warranting relief for Jasper under Rule 60(b)(6). See
Gonzalez, 545 U.S. at 535 (Rule 60(b) motions may be granted only in
“extraordinary circumstances”).
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       I would deny Jasper’s motions for lack of “extraordinary circumstances”
and I would not reach, as the majority has reached, the other procedural
issues presented. Because of the extremely expedited manner in which this
appeal has been decided, this court has not had adequate time to grapple
with these complex questions of law. 2
       Having said that, I respectfully concur in the judgment.




       2 I find one part of the majority’s reasoning particularly problematic. The majority
cites Rodwell v. Pepe, 324 F.3d 66 (1st Cir. 2003) (also cited in Gonzalez, 545 U.S. at 531)
and says, “60(b) motions raising additional facts for consideration . . . should be evaluated
as second-or-successive habeas petitions.” Ante, at 8. Unfortunately, the majority’s broad
reference to “additional facts” fails to address any potential distinction between additional
evidence, such as, say, when the Rule 60(b) movant presents the court with a newly-
procured affidavit from an expert witness, and court documents, such as, say, when the
Rule 60(b) movant presents a portion of the trial transcript that was previously lost due to
technical error and has now been recovered. It seems doubtful that we would treat the
latter case no differently than the former and, in both cases, fault the movant for bringing
us “additional facts” and conclude that his Rule 60(b) motion is truly a successive habeas
petition in disguise. Here, the “additional facts” are jury questionnaires, which, arguably,
should fall into the latter category rather than the former. When an appropriate case
presents itself, the court should give this issue more consideration than this extremely
expedited appeal allowed.
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