     Case: 16-70006      Document: 00513599639         Page: 1    Date Filed: 07/19/2016




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

                                      No. 16-70006                                 FILED
                                                                               July 19, 2016
                                                                              Lyle W. Cayce
JOSEPH ROLAND LAVE, JR.,                                                           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 Northern District of Texas
                             USDC No. 3:00-CV-2137


Before KING, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Joseph Roland Lave, Jr. stands before us convicted of the 1992 capital
murders of Justin Marquart and Frederick Banzhaf. He was sentenced to
death for the murder of Marquart and to life imprisonment for the murder of
Banzhaf. After unsuccessfully challenging his case on direct appeal, through
four state post-conviction proceedings, and a federal habeas proceeding, he



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-70006
returned again to federal court. Lave moved under Federal Rule of Civil
Procedure 60(b) for the district court to reconsider his federal habeas petition,
arguing that relief was necessary to correct a judgment procured through fraud
and misconduct. The district court found that Lave’s motion constituted a
successive petition for habeas relief under 28 U.S.C. § 2244(b). Because Lave
had not obtained a Certificate of Appealability (“COA”) from this court under
28 U.S.C. § 2244(b)(3), the district court dismissed his motion for want of
jurisdiction. A few days later, the district court denied Lave a COA to file a
successive habeas petition. Lave now seeks a COA from this court.
                                      I.
      The facts of Lave’s crime have been well documented in numerous state
and federal court decisions. This court earlier summarized them as follows:
            Lave, James Langston (“Langston”), and Timothy
            Bates (“Bates”) conspired to rob a sporting goods store.
            During the robbery, the assailants brutally killed two
            of the store’s employees, Frederick Banzhaf
            (“Banzhaf”) and Justin Marquart (“Marquart”). A
            third employee, Angela King, was also attacked but
            managed to survive, call 911 and identify Langston as
            one of the perpetrators. As a result of her
            identification, the police sought to apprehend
            Langston. During the attempted arrest, Langston
            tried to run over the police officers. The police
            responded by shooting Langston who died soon after.
            Inside Langston’s shoe, the police found a card with
            Bates’ name and phone number. Using that
            information, the police arrested Bates, who identified
            Lave as the third robber. Subsequently, the police
            executed a warrant and searched Lave’s apartment
            and automobile, where they seized merchandise from
            the sporting goods store and other evidence. Lave
            surrendered to the police two days later.

Lave v. Dretke, 416 F.3d 372, 375-76 (5th Cir. 2005). In August 1993, Lave was
tried and convicted for the capital murder of Banzhaf. He was sentenced to life
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                                       No. 16-70006
imprisonment for this murder. In March 1994, Lave was tried, convicted, and
sentenced to death for the murder of Marquart. Lave appealed to the Texas
Court of Criminal Appeals (“CCA”), which affirmed. Id. Lave then sought
habeas corpus relief in the state trial court. The trial court denied relief, and
the CCA affirmed. Id. Next, Lave filed a petition for federal habeas relief with
the United States District Court for the Northern District of Texas. Id. The
district court denied relief. This court granted him a COA on a single issue, but
later affirmed the judgment of the district court, denying him habeas relief.
Lave v. Dretke, 444 F.3d 333, 336 (5th Cir. 2006). Lave petitioned the Supreme
Court for a writ of certiorari, but it denied his petition. Lave v. Quarterman,
549 U.S. 1264 (2007). Then, the state trial court set Lave’s execution date for
September 13, 2007.
       Lave filed another post-conviction petition and a motion to stay his
execution, arguing that his confrontation rights were violated under Crawford
v. Washington, 541 U.S. 36 (2004). 1 The CCA dismissed the petition and denied
the motion to stay. Ex parte Lave, No. WR-44564-02, 2007 WL 2655888, at *1
(Tex. Crim. App. Sept. 7, 2007). Then, the State discovered potentially
exculpatory evidence—a second polygraph of co-conspirator Bates—in its files;
it disclosed the material to Lave and moved to withdraw Lave’s execution date.
Lave had already sought certiorari from the Supreme Court. On February 25,
2008, the Supreme Court granted certiorari, vacated the CCA’s order, and
remanded the case to the CCA for consideration in light of Danforth v.
Minnesota, 127 S. Ct. 2427 (2007), which allowed state courts to apply their
own retroactivity rules. Lave v. Texas, 552 U.S. 1228 (2008). But Lave was


       1 See Lave, 444 F.3d at 334 (“At Lave’s capital murder trial, Officer Kevin Hughes, one
of the state’s witnesses, testified as to a statement by one of Lave’s alleged accomplices. In
the course of an interrogation, the accomplice told Officer Hughes that Lave committed the
murder.”), cert. denied sub nom. Lave v. Quarterman, 549 U.S. 1264 (2007).

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again unsuccessful. See Ex parte Lave, 257 S.W.3d 235, 237 (Tex. Crim App.
2008) (denying relief and ruling that Crawford does not apply retroactively to
cases on collateral review in Texas state courts).
      On September 8, 2008, Lave filed a third state post-conviction petition,
alleging that he was denied a fair trial and due process when the State
suppressed prior statements of his accomplice in the crime in violation of Brady
v. Maryland, 373 U.S. 83 (1963). See Ex parte Lave, Nos. WR-44,564-03, WR-
44,564-04, 2013 WL 1449749, at *1 (Tex. Crim. App. Apr. 10, 2013). The CCA
found that the successive petition complied with Texas Code of Criminal
Procedure Article 11.071, Section 5(a) and remanded it to the trial court for
consideration of the allegation. Ex parte Lave, No. WR-44,564-03, 2008 WL
5049908, at *1 (Tex. Crim. App. Nov. 26, 2008). In discovery for this post-
conviction proceeding, Lave’s attorney was given access to the prosecutors’ trial
file, including boxes previously undisclosed and marked “work product”, along
with portions of the prosecutor’s appellate file. Lave uncovered documents that
he alleges exculpate him. 2 These documents became the bases for Lave’s fourth
state habeas application, which he filed on December 21, 2012. Lave moved to
consolidate his third and fourth applications, and the CCA subsequently
granted that motion. Following a hearing and review, the trial court made
merits findings on all claims, recommending denial of relief. Ex parte Lave,
Nos. WR-44,564-03, WR-44,564-04, 2015 WL 831797, at *1 (Tex. Crim. App.
Feb. 25, 2015). The CCA adopted the trial court’s recommendation and denied
relief. Ex parte Lave, Nos. WR-44,564-03, WR-44,564-04, 2015 WL 831797, at
*1 (Tex. Crim. App. Feb. 25, 2015).




      2  These documents included the entire Richardson Police Department supplementary
reports on the offense, inconsistent statements by witness King, King’s medical records,
notes, and a memo about Bates’ inconsistent testimony.
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      On May 6, 2015, Lave moved under Federal Rule of Civil Procedure 60(b)
for the district court to reconsider his federal habeas petition, arguing that
relief was necessary to correct a judgment procured through fraud and
misconduct. The district court found that Lave’s motion constituted a
successive petition for habeas relief under 28 U.S.C. § 2244(b). Because Lave
had not obtained a COA from this court under 28 U.S.C. § 2244(b)(3), the
district court dismissed his motion for want of jurisdiction. A few days later,
the district court denied Lave a COA. Lave now seeks a COA from this court.
                                      II.
      Federal district courts have jurisdiction to consider Rule 60(b) motions
in habeas proceedings as long as the 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.” Gonzalez v. Crosby, 545 U.S. 524,
532 (2005). “Fraud on the federal habeas court is one example of such a defect.”
Id. at 532 n.5. But if a Rule 60(b) motion advances one or more new claims—
such as seeking to add a new ground for relief or attacking a federal court’s
previous resolution of a claim on the merits—then the motion will be treated
as a habeas corpus application. Id. at 532-33; see also Ochoa Canales v.
Quarterman, 507 F.3d 884, 888 (5th Cir. 2007) (per curiam) (“In other words,
a Rule 60(b) motion that attacks only a defect in the integrity of the federal
habeas proceedings should not be treated as a successive habeas application.”).
Nearly all habeas petitioners whose Rule 60(b) motions are denied must still
obtain a COA to appeal. See Ochoa Canales, 507 F.3d at 888 (holding that a
COA is not required to appeal the denial of a 60(b) motion “only when the
purpose of the motion is to reinstate appellate jurisdiction over the original
denial of habeas relief”).
      A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A COA is a
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“jurisdictional prerequisite” such that “until a COA has been issued federal
courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “Under the
controlling standard, a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Id. (internal quotation marks and
alterations omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
“This threshold inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims,” but instead requires “an
overview of the claims in the habeas petition and a general assessment of their
merits.” Miller-El, 537 U.S. at 336. To obtain a COA where the district court
rejected the constitutional claims on the merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
Where the district court dismissed a claim on procedural grounds (such as
failure to exhaust in state habeas proceedings) without reaching the merits,
then “a COA should issue when the prisoner shows, at least, 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.” Id.
      “The decision to grant or deny relief under Rule 60(b) lies within the
sound discretion of the district court and will be reversed only for an abuse of
that discretion.” Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011)
(internal quotation marks omitted). “On [Lave’s] motion for a COA, then, we
must determine whether a jurist of reason could conclude that the district
court’s denial of [Lave’s] motion was an abuse of discretion.” Id. In death


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penalty cases, we resolve any doubts in favor of granting a COA. See Martinez
v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
                                           III.
        We first consider whether reasonable jurists would debate whether Lave
established fraud on the federal court. Lave argues that the lead trial
prosecutor in the case, Dan Hagood, committed intrinsic fraud by suppressing
prior inconsistent statements made by King and Bates and by helping to
develop King’s ultimate trial testimony. Lave further contends that the
attorney for the Director of the Texas Department of Criminal Justice, Charles
Palmer, committed extrinsic fraud on the court by, at a minimum, recklessly
avoiding finding out whether Lave’s suppression claims were true and
consequently making false statements to the federal district court. 3 Lave
contends that these actions are sufficient to constitute fraud on the court. Lave
is wrong.
        First, Lave’s alleged fraud by the state trial prosecutor fails to establish
a fraud on the federal court. See Fierro v. Johnson, 197 F.3d 147, 153-54 (5th
Cir. 1999) (“[I]t is important to keep in mind that in reviewing the district
court’s denial of the motion to vacate, we deal only with allegations of fraud on
the federal courts, not any fraud that may have been perpetrated upon the
state courts.”). Second, fraud on the federal court is a very difficult standard to
meet.
              To establish fraud on the court, it is necessary to show
              an unconscionable plan or scheme which is designed to
              improperly influence the court in its discretion.
              Generally speaking, only the most egregious
              misconduct, such as bribery of a judge or members of
              a jury, or the fabrication of evidence by a party in


        3Despite his sweeping allegation, Lave provides no examples of Palmer making any
false statements to the federal court. Instead, Lave’s allegation rests entirely on Palmer’s
resistance to discovery in the federal habeas proceeding.
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            which an attorney is implicated, will constitute a fraud
            on the court. Less egregious misconduct, such as
            nondisclosure to the court of facts allegedly pertinent
            to the matter before it, will not ordinarily rise to the
            level of fraud on the court.
Id. at 154 (quoting First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573
(5th Cir. 1996)). Lave’s arguments are in line with those arguments rejected
by this court in Fierro.
      In that case, Fierro, a death row inmate, appealed the district court’s
denial of his motion to vacate its earlier judgment, denying his petition for
habeas relief. Id. at 148. Fierro alleged that the earlier judgment denying
federal habeas relief was obtained by fraud on the court and that the judgment
should be vacated. Id. Years after Fierro’s federal habeas proceeding, his
attorney found a supplemental police report purporting to support Fierro’s
claims that his confession was involuntary and that a police officer had lied
during a pretrial suppression hearing. Id. at 149. Fierro argued that these lies
infected every proceeding, including his federal habeas proceedings. Id. at 149-
50. Fierro did not argue that the state’s federal habeas attorneys knew about
the false testimony, but instead he argued that they were implicated because
they constituted the prosecution team. Id. at 154-55. The Fierro court
acknowledged that the officer’s false testimony constituted intrinsic fraud, but
rejected Fierro’s attempt to extend the officer’s fraud to the federal court
proceeding. It noted that
            [t]he attorneys for the Texas Department of
            Corrections in a federal habeas case do not act as
            prosecutors of the crime investigated by the law
            enforcement officers. Prosecutors are actively involved
            in trial preparation, production of evidence,
            examination of witnesses, and evaluating the
            credibility of prosecution witnesses. Thus prosecutors
            work hand in hand with the police in presenting the
            case before the courts. The attorneys for the Director
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             of Corrections, however, act in response to a
             petitioner’s charge of unlawful detention that usually
             centers around the larger questions of the
             constitutionality of the judgments of the criminal
             courts. Although these attorneys will undoubtedly
             point to the work of the prosecuting attorneys to
             defend the petitioner’s continuing detention, the
             Director’s attorneys neither work with the police in a
             common enterprise, nor are they in the business of
             prosecuting crime. Lacking such a connection as part
             of a prosecution team, any constructive knowledge of
             police reports that might be imputed to the
             prosecutors cannot be imputed to the state’s attorneys
             in a federal habeas case.
Id. at 155-56. Here, like in Fierro, Lave has failed to connect any alleged fraud
in the trial court to the federal habeas proceedings. Lave’s attempts to do so by
arguing that the Director’s attorney recklessly avoided finding out if his
suppression claims were true and by arguing that the Director’s attorney had
a duty to comb the prosecutor’s file for exculpatory evidence fall short. See id.
Thus, no reasonable jurist would debate that Lave failed to establish fraud on
the federal court.
       Lastly, Lave’s argument that reasonable jurists would find the district
court’s conclusion that he presented “new claims” in his Rule 60(b) motion
debatable or wrong needs little attention. Even if Lave is correct that his 60(b)
motion only attacks the integrity of the federal habeas proceeding and does not
assert new claims nor attack the merits of the district court’s prior resolution
of his habeas claims, we still deny him a COA. We do this because the district
court did not abuse its discretion in denying his 60(b) motion when no
reasonable jurist would debate that he failed to establish fraud on the federal
court. 4


       4Nonetheless, we find no error in the district court’s conclusion that Lave’s 60(b)
motion presents new claims, and thus we find no error in its treatment of the motion as a
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                                     No. 16-70006
                                           IV.
      For the foregoing reasons, Lave’s motion for a COA is DENIED.




successive habeas petition. In the event that Lave is also seeking a COA from this court to
appeal his successive habeas petition, we deny him a COA.
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