            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 00-40295
                                         _______________

                                     WINDELL BROUSSARD,

                                                             Petitioner-Appellant,

                                              VERSUS

                                        GARY L. JOHNSON,
                    DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                INSTITUTIONAL DIVISION,

                                                             Respondent-Appellee.
                                   _________________________

                            Appeal from the United States District Court
                                 for the Eastern District of Texas
                                          1:98-CV-2053
                                 _________________________
                                          April 27, 2001


Before SMITH, BARKSDALE, and                         the state moved for summary judgment.
  PARKER, Circuit Judges.                            Broussard’s lawyers failed to respond to the
                                                     motion, and the court granted summary
JERRY E. SMITH, Circuit Judge:*                      judgment. The court denied relief from
                                                     judgment under FED. R. CIV. P. 60(b).
   Windell Broussard was convicted of
murdering his estranged wife and her son and            Broussard seeks a certificate of appealabili-
was sentenced to death. He filed a federal           ty (“COA”) from that denial, arguing that his
petition for writ of habeas corpus, whereupon        attorneys’ negligence prevented him from fully
                                                     and fairly litigating his habeas claims and that
                                                     the state court erred in not giving him more
   *                                                 funds to litigate his claims. We deny the
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be           request for COA.
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.                           I.
47.5.4.                                                 Broussard had two attorneys: Paula Effle,
an experienced capital habeas litigator, and           the United States. 28 U.S.C. § 2254(a).
Joseph Hawthorne, a capital trial lawyer. Ef-
fle, the lead counsel, handled most of the work            Broussard’s motion for relief from final
in developing the issues and preparing the pe-         judgment under rule 60(b) makes no such
tition. For health reasons, she left her law           claim; he argues only that he “was denied any
practice shortly after the filing of Broussard’s       opportunity for a full and fair treatment of his
habeas petition. Unfortunately, she failed to          claims,” but he states that “[t]his is not a con-
notify Hawthorne, who assumed that Effle was           stitutional claim per se.” Even if Broussard
taking care of the case and took no steps to           possibly could have raised a due process claim
ensure that she was still performing her duties.       under the Fourteenth Amendment, his disa-
Hawthorne received a copy of the motion for            vowal of the constitutional nature of his claim
summary judgment but did nothing.                      precludes such a construction; he never even
                                                       uses the term “due process.” Thus, because he
   Broussard contends that this negligence             alleges no constitutional violation, this claim is
should not be held against him. Rule 60(b)             no basis for habeas relief, so we deny COA on
provides that                                          this issue.

   [o]n motion and upon such terms as are                                    B.
   just, the court may relieve a party or a par-           We also may analyze Broussard’s claim for
   ty’s legal representative from a final              rule 60(b) relief as an ordinary request for
   judgment, order or proceeding for the               relief from judgment. Rule 60(b) may apply in
   following reasons: (1) mistake,                     habeas proceedings, Gray v. Estelle, 574 F.2d
   inadvertence, surprise, or excusable neglect        209, 214 (5th Cir. 1978), without being
   . . . [or] (6) any other reason justifying          subject to the successive petition restrictions
   relief from the operation of judgment.              of the AEDPA, see Randall S. Jeffrey,
                                                       Successive Habeas Corpus Petitions and Sec-
FED. R. CIV. P. 60(b)(1), (6). Broussard               tion 2255 Motions after the Antiterrorism and
suggests that either the attorneys’ negligence         Effective Death Penalty Act of 1996:
was excusable or the circumstances justify             Emerging Procedural and Substantive Issues,
relief.                                                84 MARQ. L. REV. 43, 66 (2000).
                       A.
    The procedural posture of this petition pre-          We review a rule 60(b) motion for abuse of
sents an analytical difficulty: Broussard has          discretion. Halicki v. La. Casino Cruises,
requested a COA, yet his rule 60(b) relief is          Inc., 151 F.3d 465, 470 (5th Cir. 1998). To
not susceptible to that analysis. A rule 60(b)         prevail, Broussard must show either that the
motion alleging constitutional grounds for set-        attorney’s failure to respond to the motion for
ting aside a conviction may be treated as a suc-       summary judgment was excusable neglect un-
cessive habeas petition under 28 U.S.C.                der rule 60(b)(1) or an extraordinary
§ 2255. United States v. Rich, 141 F.3d 550,           circumstance justifying relief under rule
553 (5th Cir. 1998). A federal court,                  60(b)(6). See id.; Ackermann v. United States,
however, may entertain a habeas petition only          340 U.S. 193, 202 (1950). The provisions are
on the ground that the prisoner’s confinement          mutually exclusive: If a part y is partly to
violates the laws, treaties, or Constitution of        blame for the delay, and the motion is brought,


                                                   2
as here, within one year, rule 60(b)(1) is used;         in a slander suit. Seven Elves, 635 F.2d 396
if a party is prevented from complying with a            (deciding that the district court had entered
deadline by an act of God or other                       judgment without examining the full merits of
circumstances beyond his control, we apply               the case or allowing appellants to present their
rule 60(b)(6). Pioneer Inv. Serv. Co. v.                 side of the argument). We also have granted
Brunswick Assoc. Ltd. Partnership, 507 U.S.              relief where an attorney failed to file an
380, 393-94 (1993). Because Broussard’s                  appearance in a medical malpractice suit.
attorneys should have employed greater                   Roberts v. Rehoboth Pharm., Inc., 574 F.2d
safeguards to ensure that action was taken, we           846 (5th Cir. 1978). Likewise, where an
use the “excusable neglect” analysis under rule          attorney missed by one day the deadline to file
60(b)(1).1                                               a meritorious appeal, the court granted a rule
                                                         60(b) motion. Mann v. Lynaugh, 690 F.
   We construe rule 60(b) liberally to ensure            Supp. 562, 565 (N.D. Tex. 1988) (internal
that close cases are resolved on the merits.             citations omitted). We have found excusable
See Rogers, 167 F.3d at 938. Indeed, “where              neglect where the defendant did not realize he
denial of relief [under rule 60(b)] precludes            had the burden to prosecute subpoena
examination of the full merits of the cause,             proceedings after their removal to district
even a slight abuse of discretion may justify re-        court. Sparks v. Gesell, 978 F.2d 226, 233-34
versal.” Halicki, 151 F.3d at 471 (citing Seven          (5th Cir. 1992).
Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir.
Unit A Jan. 1981)).                                         An important component of the rule 60-
                                                         (b)(1) analysis, however, is the concern that
    We have found excusable neglect where at-            the court not disturb the finality of a judgment
torneys have missed deadlines. Mere failure to           without good reason. Cf. Rogers, 167 F.3d at
file a timely appeal is not excusable, but where         938 (listing the merits of the defendant’s claim
an attorney failed to file notice of a change of         as a necessary factor). We have gone to great
address and did not receive the opponent’s               lengths to avoid a miscarriage of justice: In
motion for summary judgment until after a                Gray, 574 F.2d at 214, the court found that a
default judgment had been entered against his            district attorney’s failure to call certain
client, the court granted relief.2 We have ex-           witnesses was not “excusable neglect” under
cused attorneys who did not show up for trial            rule 60(b)(1), but because the testimony of
                                                         those witnesses probably would alter an
                                                         important factual determination, the court
   1
     Cf. Rogers v. Hartford Life & Accident Ins.         concluded that the district court had abused its
Co., 167 F.3d 933, 938 (5th Cir. 1999)                   discretion. Gray, 574 F.2d at 214. Broussard
(concluding that rule 60(b)(1) applied where a           must show “both the existence of a sufficiently
party had failed to take minimal steps to ensure         meritorious defense and the absence of a fair
that it received a copy of a complaint of which it       opport unity to present that defense.” Seven
was aware and to which it should have responded).
                                                         Elves, 635 F.2d at 403.
   2
      Compare Halicki, 151 F.3d at 470 (denying
relief where movant “misunderstood” the filing              Assuming arguendo that Broussard did not
deadline for an appeal) with Blois v. Friday, 612        have a fair opportunity to present his defense,
F.2d 938 (5th Cir. 1980) (finding excusable ne-          his lack of a meritorious claim prevents us
glect).                                                  from reversing the denial of rule 60(b) relief.

                                                     3
In its thorough opinion, the district court              der the Due Process Clause of the Fourteenth
carefully examined each of Broussard’s claims            Amendment, he has not tied this claim to any
but concluded that each was either                       previous claim in his habeas petition. Thus,
procedurally barred or without merit or both.3           we treat it as a new claim.
Broussard presented not one close legal
question on which additional argument could                 A new claim presented in a successive
have affected the outcome. Cf. Gray, 574                 habeas petition shall be dismissed unless it
F.2d at 214. “It is not enough that the                  contains
granting of relief might have been permissible,
or even warrantedSSdenial must have been so                 (1) newly discovered evidence that, if
unwarranted as to constitute an abuse of                    proven and viewed in the light of the
discretion.” Seven Elves, 635 F.2d at 402.                  evidence as a whole, would be sufficient
Because no substantial injustice resulted, the              to establish by clear and convincing evi-
district court did not commit reversible error.             dence that, but for the constitutional er-
                                                            ror, no reasonable factfinder would have
                                                            found the movant guilty of the
                       III.                                 underlying offense; or
   In his rule 60(b) motion, Broussard avers
that the state should have provided his lawyer              (2) a new rule of constitutional law,
with more money to investigate his habeas                   made retroactive to cases on collateral
claims. This portion of the request for COA                 review by the Supreme Court, that was
should be analyzed as a successive habeas                   previously unavailable.
petition. See Rich, 141 F.3d at 551. Although
he does not say so explicitly, Broussard seems           28 U.S.C. § 2255. Broussard has not even
to suggest that the additional funds would               suggested that he relies on a new rule of
have helped him to develop the factual record            constitutional law, that he was previously
through evidentiary hearings. He does not                unaware of the alleged insufficiency of the
identify specific factual questions that were in-        funds to pursue his claim, or that the additional
adequately developed by the state court, but             funds would have proven his innocence. Thus,
he argues that his claims were “denied a full            we cannot grant a COA on this claim.
and fair hearing.”
                                                           Accordingly, the request for COA is
   In its opinion, the district court indicates          DENIED.
that the state conducted an evidentiary hearing
on the application, and Broussard has not
identified any specific way in which it was
defective. Even assuming arguendo that
Broussard has raised a constitutional claim un-


   3
     Accord Halicki, 151 F.3d at 471 (“Our case-
law allows for more leniency in opening up default
judgments, not those in which the court has had a
chance to evaluate the merits.”).

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