     Case: 17-51143    Document: 00515161079      Page: 1    Date Filed: 10/16/2019




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

                                                                         FILED
                                  No. 17-51143                     October 16, 2019
                                                                    Lyle W. Cayce
WILLIAM CHARLES WEBB,                                                    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


Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:
      William Charles Webb, Texas prisoner # 1888883, pled guilty to the
offense of injury to a child and received a twenty-year sentence. Webb brings
this challenge to his conviction under 28 U.S.C. § 2254. The district court
denied Webb’s § 2254 application, concluding that Webb’s valid guilty plea
waived his claims for habeas relief. Webb then filed a motion for relief from
that judgment under Federal Rule of Civil Procedure 60(b), which the district
court denied in part and dismissed in part. Webb was granted a certificate of
appealability (COA) to address whether the district court abused its discretion
in failing to grant relief to Webb on his claims for denial of the right to a speedy
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                                  No. 17-51143
trial, on claims of violation of due process based on the suppression of evidence,
and on the claim that he was entitled to substitute counsel.       Before we can
address this question on the merits, however, we must first address the
respondent’s contention that we do not have jurisdiction over this appeal.
Finding that we have jurisdiction, we still do not address these issues because
we affirm on the grounds that Webb, on appeal, has waived any argument
related to the issue upon which he was granted appellate review.
                                        I.
      In September 2013, Webb pled guilty to the offense of injury to a child
for which the state court sentenced him to a twenty-year prison term. Before
entering his guilty plea, Webb filed motions asserting that he had the right to
a speedy trial, asking that the state provide him with any exculpatory evidence
in its possession, and requesting that substitute counsel be appointed. Despite
Webb’s guilty plea, the state trial court certified that Webb had not waived his
right to appeal matters, such as these, that were raised by written motion
before trial.
      After exhausting his state court remedies, Webb came to federal court
and filed a 28 U.S.C. § 2254 application challenging his conviction. In his
application, Webb raised claims of denial of the right to a speedy trial, violation
of due process based on the suppression of evidence, error in failure to grant
his motion to appoint substitute counsel, and ineffective assistance of counsel.
The district court determined that Webb’s claims for habeas relief were waived
by his valid guilty plea and denied the § 2254 application. Both the district
court and this court denied Webb a COA. This court then denied Webb’s
request for reconsideration and rehearing en banc.
      After this court’s mandate issued, Webb filed a pro se motion for relief
from the district court’s judgment under Federal Rule of Civil Procedure 60(b).
Relying on subsections 60(b)(1) and (6), Webb argued that the district court
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                                 No. 17-51143
erred when it determined that his claims for habeas relief were waived by his
guilty plea. The district court did not agree and denied in part and dismissed
in part Webb’s Rule 60(b) motion. The district court held that it had “reviewed
[Webb’s] ineffective assistance of counsel claims and found no evidence that
[his] guilty plea was not knowing and intelligent.” The district court also held
that to the extent Webb challenged the merits of its prior ruling, the Rule 60(b)
motion must be dismissed as an unauthorized successive § 2254 application.
      Webb timely appealed. In response, a member of this court granted
Webb a COA, allowing an appeal on the following issue:
      [W]hether the district court abused its discretion in denying in
      part and dismissing in part Webb’s Rule 60(b) motion . . . as to the
      three claims Webb preserved by a written motion prior to trial
      (namely, denial of the right to a speedy trial, violation of due
      process based on the suppression of evidence, and error in failure
      to appoint substitute counsel).
Order, Webb v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). As noted in
the order, because Texas allows defendants who enter guilty pleas to appeal
issues that were raised in written motions prior to trial, a petitioner who has
pled guilty may raise those issues in a § 2254 application.           Gibson v.
Klevenhagen, 777 F.2d 1056, 1059 (5th Cir. 1985).
                                       II.
      On appeal, Webb makes two arguments. First, that the district court
erred in affording a presumption of correctness to the state court habeas
proceedings.   And second, that his trial counsel was ineffective.           The
respondent asserts that the district court lacked jurisdiction to grant Webb’s
Rule 60(b) motion. Alternatively, she argues that the district court did not
abuse its discretion when it denied Webb’s motion.




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                                   No. 17-51143
                                        III.
      As we have earlier noted, before we can proceed further with this appeal,
we must assure ourselves that we have jurisdiction to adjudicate Webb’s
claims.   “The requirement that jurisdiction be established as a threshold
matter . . . is inflexible and without exception.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998) (internal quotations and citations omitted).
This court’s jurisdiction to consider the merits of this appeal is predicated on
whether the district court had jurisdiction to consider Webb’s Rule 60(b)
motion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). When the
district court lacked jurisdiction, this court’s “jurisdiction extends not to the
merits but merely for the purpose of correcting the error of the lower court in
entertaining the suit.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th
Cir. 1998) (quotations omitted).
                                         A.
      The respondent first asserts that the district court lacked jurisdiction to
grant Webb’s Rule 60(b) motion because the legal basis for that motion had
already been decided and rejected by this court when it declined to grant Webb
a COA on the district court’s initial denial of his § 2254 application. This
argument implicates the “mandate rule” which is “a corollary of the law of the
case doctrine.” Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 639 (5th Cir.
2014). Under the mandate rule, lower courts must comply “with the dictates
of a superior court” and cannot allow “relitigation of issues expressly or
impliedly decided by the appellate court.” See id. at 639–40 (quoting United
States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)). “Despite its importance, the
mandate rule is a discretionary device and not immutable.” United States v.
Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (emphasis omitted). Indeed, our
court has recognized several exceptions to the rule, including where the district
court considers new evidence, where there is an intervening change in law, or
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                                  No. 17-51143
where “the earlier decision was clearly erroneous and would work a manifest
injustice.” Id. at 205–06. Accordingly, the mandate rule did not deprive the
district court of jurisdiction to resolve the Rule 60(b) motion in Webb’s favor.
Cf. United States v. Simpson, 796 F.3d 548, 552 (5th Cir. 2015) (declining to
address the applicability of the mandate rule before proceeding to the merits).
To be sure, the mandate rule that the respondent asserts as jurisdictional is
not jurisdictional at all—it is a discretionary rule that can be set aside in
certain circumstances. See United States v. Teel, 691 F.3d 578, 583 (5th Cir.
2012).
        In any event, the mandate rule does not have merit here. The only orders
issued by this court were the orders denying Webb’s request for a COA and
motion for reconsideration and rehearing en banc. Neither of these orders
specifically addressed the district court’s determination that Webb’s guilty plea
waived his claims for habeas relief. Instead, in denying Webb’s request for
COA, this court determined only that Webb had not shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Order, Webb v. Davis, 17-50123, at 2 (5th Cir. Oct. 25, 2017) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Because this court’s COA order did not
“expressly or impliedly” decide that the district court had correctly determined
that Webb’s guilty plea waived his underlying claims, the district court could
have granted Webb’s Rule 60(b) motion without running afoul of the mandate
rule.
                                        B.
        The respondent next argues that the district court lacked jurisdiction to
grant Webb’s motion because it amounted to an unauthorized second or
successive § 2254 application. A prisoner is required to obtain authorization
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from this court before filing a second or successive § 2254 application in the
district court. See 28 U.S.C. § 2244(b)(3)(A). When faced with a Rule 60(b)
motion filed in response to the denial of an application for habeas relief, the
district court must first determine whether the petitioner is only seeking Rule
60(b) relief or is attempting to file a second or successive habeas application.
Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005). A purported Rule 60(b)
motion should be construed as a successive habeas application when it raises
a new theory of relief or disputes the district court’s substantive resolution of
a claim. Id. at 532. 1 In contrast, a Rule 60(b) motion that attacks “some defect
in the integrity of the federal habeas proceedings” or a procedural ruling that
precluded a merits determination should not be construed as an unauthorized
successive habeas application. See id. at 532, 535–36. “If neither the motion
itself nor the federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant’s state conviction,
allowing the motion to proceed [as a Rule 60(b) motion] creates no
inconsistency with the habeas statute or rules.” Id. at 533.
       We have never squarely addressed whether a Rule 60(b) motion that
challenges a district court’s dismissal of claims based on the determination
that the claims were waived by the petitioner’s guilty plea is an unauthorized
successive habeas application. But we do not write on a blank slate. In
Gonzalez, for example, the Supreme Court provided the following instances of
procedural rulings that habeas petitioners can challenge through a Rule 60(b)
motion: rulings based on failure to exhaust, procedural default, or a statute-of-
limitations bar. Id. at 532 n.4. We have since reasoned that other rulings that
can be challenged in a postjudgment motion include: the district court’s denial


       1A district court resolves habeas claims on the merits when it 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).” Gonzalez, 545 U.S. at 532 n.4.
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of funding, the district court’s dismissal of claims without conducting an
evidentiary hearing, and the district court’s failure to consider claims
presented in the habeas application. See Crutsinger v. Davis, 929 F.3d 259,
265–66 (5th Cir. 2019); United States v. McDaniels, 907 F.3d 366, 370 (5th Cir.
2018); United States v. Brown, 547 F. App’x 637, 642 (5th Cir. 2013). Similarly,
the Eleventh Circuit has recently held that “the denial of a claim based on a
valid appeal waiver is not a decision on the merits” and therefore can be
attacked through a Rule 60(b) motion. See Pease v. United States, 768 F. App’x
974, 976 (11th Cir. 2019).
      In the light of these precedents, we conclude that Webb’s motion
attacking the district court’s determination that his guilty plea waived his
habeas claims was only a Rule 60(b) motion and not a successive § 2254
application. We reach this conclusion because in denying Webb habeas relief
the district court did not address the substance of any of his claims. Instead,
it concluded that Webb’s voluntary guilty plea effectively waived those claims.
The crux of Webb’s Rule 60(b) motion is that the district court’s ruling that his
guilty plea waived his habeas claims was error. Nor did Webb’s motion seek
to raise new claims. This challenge is analogous to the types of procedural
attacks recognized in Gonzalez as properly brought in a Rule 60(b) motion.
Accordingly, we hold that Webb’s motion is not a successive § 2254 application
and that we have jurisdiction over this appeal.
                                       IV.
      We now turn to the merits of whether the district court erred in denying
60(b) relief to Webb. Whether to grant or deny Rule 60(b) relief is within the
sound discretion of the district court. See Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 402 (5th Cir. 1981). “It is not enough that the granting of relief might
have been permissible, or even warranted;” instead, “denial must have been so
unwarranted as to constitute an abuse of discretion.” Id. As stated, Webb
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                                  No. 17-51143
claims he is entitled to relief under both Rule 60(b)(1) and (6). As we have said
earlier, Webb claims that the district court erred procedurally by holding that
his guilty plea waived his right to raise his habeas claims. It is thus clear that
Webb’s claim, as articulated, falls under Rule 60(b)(1), which allows a district
court to afford relief from a final judgment on the account of “mistake,
inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule
60(b)(6) is a catchall provision that allows for the granting of relief from a
judgment for “any . . . reason that justifies relief” other than those reasons
listed in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6). “The reason for relief set
forth under 60(b)(6) cannot be the reason for relief sought under another
subsection of 60(b).” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir.
2005). Here, Webb asserted the same grounds for relief under Rule 60(b)(6) as
he did under Rule 60(b)(1).      Accordingly, he “cannot obtain relief under
60(b)(6).” Id.
      We thus focus on Rule 60(b)(1). A “mistake” under Rule 60(b)(1) includes
judicial errors, but such an error must be a “fundamental misconception of the
law,” and not merely an erroneous ruling. Chick Kam Choo v. Exxon Corp.,
699 F.2d 693, 695 (5th Cir. 1983). In considering this issue, we are mindful
that we must liberally construe Webb’s brief because he is proceeding pro se.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Even so, “arguments must
be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      Webb’s appellate brief fails to address whether the district erred by
denying his Rule 60(b)(1) motion as to his habeas claims based on denial of the
right to speedy trial, suppression of evidence, and error in failure to appoint
substitute counsel. Instead, his brief raises two arguments on issues that are
not properly before us. First, Webb argues that the district court erred by
affording a presumption of correctness to the state court habeas proceedings.
This issue is not properly before us because Webb did not raise it in his Rule
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60(b) motion. Next, Webb contends that his trial counsel was ineffective. Webb
did raise this issue in his Rule 60(b) motion, but our review is confined to the
issues granted a COA. See 28 U.S.C. § 2253(c). The COA order denied Webb
a COA with respect to his ineffective assistance of counsel claims. Order, Webb
v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). Thus, we are forbidden
to consider this claim. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
Accordingly, for procedural reasons by which we are bound, we close this
opinion without reaching the merits of Webb’s appeal. See Emerson v. Thaler,
464 F. App’x 346, 346–47 (5th Cir. 2012) (“Because Emerson has failed to brief
the sole issue on which a COA was granted, he has waived that issue, and the
judgment is AFFIRMED.”).
                                       V.
      In sum, the mandate rule did not deprive the district court of jurisdiction
to grant Webb’s Rule 60(b) motion.          We additionally hold that, when a
petitioner files a Rule 60(b) motion attacking a district court’s determination
that the petitioner’s habeas claims were waived by his guilty plea, the motion
is not an unauthorized successive habeas petition. Nonetheless, because Webb
has waived argument concerning the issue upon which this court granted
appellate review, the judgment of the district court is
                                                                    AFFIRMED.




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