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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 18-70007                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                        September 14, 2018
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

CHRISTOPHER ANDRE VIALVA,

             Defendant - Appellant

                               Consolidated With
                                 No. 18-70008

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

BRANDON BERNARD,

             Defendant - Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
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Before HIGGINBOTHAM, JONES, and DENNIS ∗, Circuit Judges.
PER CURIAM:
        Brandon Bernard and Christopher Andre Vialva were convicted of
capital murder under federal law and sentenced to death. Both men moved for
relief from judgment under Federal Rule of Civil Procedure 60(b)(6), seeking
to reopen their initial habeas proceedings under 28 U.S.C. § 2255. The district
court       concluded      that    these    motions     constituted       second-or-successive
Section 2255 petitions and so dismissed them for lack of jurisdiction. Bernard
and Vialva now seek certificates of appealability (“COAs”) pursuant to
28 U.S.C. § 2253(c)(2). For the reasons set forth below, we DENY the COA
applications.
                                       BACKGROUND
        In 1999, Bernard, Vialva, and other gang members planned a carjacking
and robbery in Killeen, Texas. See United States v. Bernard, 299 F.3d 467
(5th Cir. 2002) (denying claims on direct appeal); United States v. Bernard,
762 F.3d 467 (5th Cir. 2014) (denying COA applications for Section 2255
claims). Their plan culminated in the murders of Todd and Stacie Bagley on
federal government property. Vialva shot both victims in the head. Bernard
then set fire to the Bagleys’ car to destroy evidence. The gunshot killed Todd
Bagley, and Stacie died from smoke inhalation. A jury found Bernard and
Vialva guilty on multiple capital counts. The jury subsequently found that
aggravating factors outweighed mitigating factors for each defendant. They
were sentenced to death under 18 U.S.C. § 3591 et seq. This court affirmed



        ∗
            Judge Dennis concurs in all but footnote 4 of this opinion.
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their sentences on direct appeal. 299 F.3d at 489, cert. denied, 539 U.S. 928,
123 S. Ct. 2572 (2003).
      Bernard and Vialva filed habeas petitions challenging their convictions
and sentences pursuant to Section 2255. After careful review, the district court
denied Bernard and Vialva an evidentiary hearing and rejected their claims,
declining to certify any questions for appellate review. Bernard and Vialva
then sought COAs from this court. This court denied their COA applications,
holding that “reasonable jurists could not disagree with the district court’s
disposition of any of Bernard’s and Vialva’s claims on the voluminous record
presented.” 762 F.3d at 483.
      In October 2017, Vialva moved in district court for relief from judgment
under Federal Rule of Criminal Procedure 60(b)(6). His motion requested that
the district court’s denial of his initial Section 2255 motion be vacated because
purported defects in the integrity of those proceedings precluded meaningful
collateral review. A month later, Bernard filed a substantially similar motion.
      The motions both allege that Judge Walter Smith, the district court
judge who oversaw their trials and initial habeas petitions, was unfit to
conduct proceedings because of “impairments.” 1             The motions also assert
numerous errors committed by Judge Smith during their trial and initial
habeas proceedings. And the motions contend that this court misapplied the




      1  These allegations stem from a 2014 judicial misconduct investigation involving
Judge Smith. The Judicial Council found that, in 1998, Judge Smith made unwanted
advances toward a court employee. The Council also noted that Judge Smith did not follow
appropriate procedures regarding recusal from cases in which his counsel in the misconduct
investigation was representing parties before his court. The investigation resulted in a
reprimand for Judge Smith, and he was suspended for one year from being assigned new
cases.
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standard of review in denying Bernard’s and Vialva’s COA applications when
they sought to appeal Judge Smith’s denial of their habeas petitions.
      In support of their Rule 60(b) motions, Bernard and Vialva both attached
the Judicial Council’s Order from Judge Smith’s misconduct proceeding.
Bernard attached several other related documents, including the order
effecting Judge Smith’s suspension from new case assignments, an excerpt of
the deposition of the court employee who alleged misconduct against
Judge Smith, 2 and a 2017 article from the Texas Lawyer that details the
misconduct proceedings and Judge Smith’s decision to retire. Bernard also
attached an amicus brief by the Federal Capital Habeas Project supporting
Bernard’s petition for a writ of certiorari and arguing that this court erred in
denying his COA application.
      The district court construed Bernard’s and Vialva’s Rule 60(b) motions
as successive motions under Section 2255 and dismissed them for lack of
jurisdiction. The court then concluded that no COAs should issue. Both
petitioners timely applied to this court for COAs.
                             STANDARD OF REVIEW
      We review de novo whether the district court properly construed the
purported Rule 60(b) filings as subsequent habeas petitions under
Section 2255. In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014). However, this
court may not consider an appeal from the district court’s denial of relief unless
Bernard and Vialva “first obtain a COA from a circuit justice or judge.” Buck v.



      2  The deposition excerpt includes the court employee’s discussion of the alleged
misconduct, her opinion that Judge Smith may have been drinking prior to some of his
interactions with her, and her statement that, at one point, Judge Smith’s law clerk called
her to say that Judge Smith had “been in the hospital,” was “falling apart,” and had needed
to “cancel court things” because he was “not functioning.”
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Davis, 137 S. Ct. 759, 773 (2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may
issue ‘only if the applicant has made a substantial showing of the denial of a
constitutional right.’” Id. (quoting 28 U.S.C. § 2253(c)(2)). Unless an applicant
secures a COA, this court “may not rule on the merits of his case.” Id. (citing
Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003)).
      The COA inquiry itself is “limited” and “not coextensive with a merits
analysis.” 137 S. Ct. at 773-74. “At the COA stage, the only question is
whether the applicant has shown that ‘jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.’”     Id. at 773 (quoting Miller–El, 537 U.S. at 327,
123 S. Ct. at 1034). In other words, this court must make only “an initial
determination whether a claim is reasonably debatable.” Id. at 774. And this
“initial determination” must be made without “full consideration of the factual
or legal bases adduced in support of the claims.” Id. at 773 (quoting Miller–El,
537 U.S. at 336, 123 S. Ct. 1039). “Finally, any doubt as to whether a COA
should issue in a death-penalty case must be resolved in favor of the
petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
                                DISCUSSION
      Given the limited standard of review, the question here is whether
reasonable jurists could disagree with the district court’s determination that
Bernard’s and Vialva’s Rule 60(b) motions were successive habeas petitions
under Section 2255. We conclude that the issue is not reasonably debatable.
      Congress has specified that individuals may file successive Section 2255
motions only under limited circumstances.       See 28 U.S.C. § 2255(h)(1)-(2)
(requiring that a successive motion point to either “newly discovered evidence”

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establishing the movant’s innocence or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable”). A federal district court lacks jurisdiction to entertain
a successive motion unless the circuit court first certifies that the filing
satisfies these requirements. See id.
       To avoid the statutory limits on successive habeas petitions, individuals
may seek to style their successive filings as motions for relief from judgement
under Rule 60(b). This rule allows a court to reopen proceedings for obvious
errors, newly discovered evidence, fraud, or “any other reason that justifies
relief.”   Fed. R. Civ. P. 60(b)(1)-(6).          In Gonzalez v. Crosby, however, the
Supreme Court stated that Rule 60(b) motions cannot “impermissibly
circumvent the requirement that a successive habeas petition be precertified
by the court of appeals as falling within an exception to the successive-petition
bar.” 545 U.S. 524, 532, 125 S. Ct. 2641, 2648 (2005). 3 Gonzalez provides
guidance for determining when a Rule 60(b) motion is subject to the
requirements for successive petitions. See id. at 532-36, 125 S. Ct. at 2648-50.
       Specifically, Gonzalez states that courts must construe a Rule 60(b)
motion as a successive habeas petition if it “seeks to add a new ground for
relief” or “attacks the federal court’s previous resolution of a claim on the
merits.” 545 U.S. at 532, 125 S. Ct. at 2648. If a motion challenges “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 a Rule 60(b)
motion is appropriate. Id.


       3  Gonzalez considered “only the extent to which Rule 60(b) applies to habeas
proceedings under 28 U.S.C. § 2254,” id. at 529 n.3, 125 S. Ct. at 2646, but this court has
applied its holding in the Section 2255 context. See United States v. Hernandes, 708 F.3d 680,
681 (5th Cir. 2013).
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      Applying Gonzalez, we have held that claims of procedural defect must
be “narrowly construed” when considering whether motions are subject to the
limits on successive habeas petitions. See In re Coleman, 768 F.3d at 371.
Claims properly brought under Rule 60(b) include assertions of “[f]raud on the
habeas court” or challenges to procedural rulings that “precluded a merits
determination”—for instance, the denial of habeas relief “for such reasons as
failure to exhaust, procedural default, or statute-of-limitations bar.”
545 U.S. at 532 n.5, 125 S. Ct. at 2648.       Accordingly, a district court has
jurisdiction to consider a motion that shows “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). But motions that “in
effect ask for a second chance to have the merits determined favorably” must
be construed as successive habeas petitions regardless whether they are
characterized as procedural attacks. See id.
      Indeed, courts have repeatedly rejected attempts to portray substantive
claims as asserting procedural defects.        For example, in United States v.
Washington, the Ninth Circuit addressed a Rule 60(b) motion alleging that the
district judge “lacked familiarity with the facts of the case” and erroneously
“declined to conduct an evidentiary hearing.”                  653 F.3d 1057, 1064
(9th Cir. 2011). Though presented as a procedural challenge, these claims did
not, the court explained, “constitute an allegation of a defect in the integrity of
the proceedings; rather, such arguments are merely asking ‘for a second chance
to have the merits determined favorably.’”               Id.      (quoting Gonzalez,
545 U.S. at 532 n.5, 125 S. Ct. at 2648). Similarly, in In re Lindsey, the Tenth
Circuit addressed a Rule 60(b) motion in which the movant “characterized his
arguments as procedural in nature, asserting they ‘deal[t] primarily with some

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irregularity or procedural defect in the procurement of the judgment.’”
582 F.3d 1173, 1174 (10th Cir. 2009). Despite this characterization, the Tenth
Circuit applied Gonzalez to find that the claim—another challenge to the
denial of an evidentiary hearing—“le[d] inextricably to a merits-based attack
on the dismissal of the § 2255 motion,” thereby requiring circuit-court
authorization as a successive Section 2255 motion. Id. at 1175-76.
      Here, the district court held that Bernard’s and Vialva’s motions were
“the very definition of . . . successive” because they “ask[ed] the court to vacate
the previous adverse judgment on the merits and to consider the claims raised
in their [original] Section 2255 motions afresh.” The court noted that Bernard
and Vialva both spent much of their Rule 60(b) motions rearguing the merits
of the claims brought in their initial Section 2255 motions. And the court
inferred that “the alleged procedural defects are simply an attempt to
circumvent” the limits placed by Congress on successive habeas petitions.
      Bernard and Vialva contend that the district court erred because their
Rule 60(b) motions properly identified “non-merits-based defect[s]” in their
habeas proceedings that “wrongfully deprived [them] of meaningful collateral
review under 28 U.S.C. § 2255.”          Bernard and Vialva stress that “a
fundamental purpose” of motions under Rule 60(b) “is to provide an exception
to finality . . . where procedural defects marred the integrity of the earlier
proceedings,” and so it is not inappropriate that their motions seek to relitigate
“the merits of claims that were advanced and decided in earlier habeas
proceedings.”
      Bernard and Vialva are correct that Rule 60(b) motions can legitimately
ask a court to reevaluate already-decided claims—as long as the motion
credibly alleges a non-merits defect in the prior habeas proceedings. However,

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the question before us is not whether Rule 60(b) motions can reopen
proceedings—they certainly can—but whether Bernard and Vialva have
actually alleged procedural defects cognizable under Rule 60(b).
      Although they purport to attack the integrity of their prior habeas
proceedings, Bernard’s and Vialva’s invocation of defective procedure rests
substantially on a merits-based challenge. To begin with, evidence from Judge
Smith’s misconduct investigation does not credibly implicate the procedural
integrity of Bernard’s and Vialva’s prosecutions or subsequent habeas
proceedings. Evidence that Judge Smith engaged in unrelated misconduct in
1998 or that he neglected certain recusal requirements during the 2014
misconduct investigation does not raise an inference of defects in the habeas
proceedings at issue here. The allegations offer no evidence—beyond gross
speculation—that Judge Smith was, as Bernard and Vialva repeatedly assert,
“impaired” or “unfit” to oversee their 2000 trial and subsequent habeas
proceedings. Judge Smith’s unrelated misconduct does not constitute a defect
in the integrity of Bernard’s and Vialva’s habeas proceedings.         To hold
otherwise would implicate every one of Judge Smith’s decisions for an
undetermined period of time nearly twenty years ago and would justify
circumventing the second-or-successive limitations in countless cases.
      Attempting to link Judge Smith’s misconduct to their own proceedings,
Bernard and Vialva point to errors allegedly committed by Judge Smith during
their trial and habeas proceedings: (1) Judge Smith’s appointment of
ineffective counsel, (2) his incorrect jury instructions, (3) his admission of
improper victim impact statements, (4) his failure to rule on the original




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Section 2255 motions in a timely manner, 4 (5) his summary denial of their
habeas claims, and (6) his denial of requests for an evidentiary hearing.
       These are clearly merits-based attacks, and they have already been
reviewed and rejected by this court. See 299 F.3d at 484-85 (concluding that
jury instruction error was “harmless beyond a reasonable doubt”); id. at 480-
81 (finding that challenged statements “did not alone unduly prejudice the
jury” because the “inadmissible portion of the victim impact testimony was
short and mild compared to the horror of the crimes and the pathos of the
admissible impact on the parents”); 762 F.3d at 471-80 (finding that the district
court’s rejection of Bernard’s and Vialva’s ineffective assistance of counsel
claims was “not reasonably debatable”); id. at 483 (holding that “reasonable
jurists could not disagree with the district court’s disposition of any of
Bernard’s and Vialva’s claims,” including the court’s decision to deny an
evidentiary hearing and further discovery).                  Bernard and Vialva seek to
transform these previously unsuccessful merits-based claims into a claim of
procedural defect. Gonzalez squarely rejects this sort of “attack [on] the federal
court’s previous resolution of . . . claim[s] on the merits.” 545 U.S. at 532,
125 S. Ct. at 2648.
       The claim that this court misapplied the COA standard fares no better.
To show error, Bernard and Vialva cite Buck v. Davis, a decision in which the
Supreme Court reversed a different panel of this court for failing to limit its
COA review appropriately—that is, the panel failed to consider only whether
the district court’s decision was “reasonably debatable.” 137 S. Ct. 759, 774
(2017). Yet Bernard and Vialva fail to explain how the error present in Buck


       4 For obvious reasons, capital habeas petitioners rarely, if ever, criticize a court’s delay
in ruling on their petitions.
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was also present in this court’s application of the COA standard in their
proceedings. They merely argue that the district court’s disposition of their
Section 2255 motions was, in fact, debatable by jurists of reason. 5 Of course,
Bernard and Vialva have already challenged this court’s denial of their COA
applications in their petitions for writs of certiorari, which were denied by the
Supreme Court. See Vialva v. United States, 136 S. Ct. 1155 (2016); Bernard v.
United States, 136 S. Ct. 892 (2016), reh’g denied, 137 S. Ct. 2154 (2017).
Reasserting that the district court’s dismissal of their Section 2255 motions
was “debatable” is not a claim cognizable under Rule 60(b). The claim is
“fundamentally substantive,” Coleman, 768 F.3d at 372, and Bernard and
Vialva plainly seek “a second chance to have the merits [of their claims]
determined favorably.” Balentine, 626 F.3d at 847.
       In sum, this case illustrates the importance of preventing claims of
procedural defect from becoming a talisman to ward off the limits placed on
successive habeas petitions. Although Bernard and Vialva characterize their
Rule 60(b) motions as attacking “defect[s] in the integrity of their proceedings”
they cast no doubt on those proceedings’ integrity. Instead, they cite unrelated
misconduct by Judge Smith and then seek to link this to their substantive
“attacks [on] the federal court’s previous resolution of a claim on the merits.”
Gonzalez, 545 U.S. at 532, 125 S. Ct. at 2648. Under these circumstances,
jurists of reason could not debate that the district court was correct to construe
the petitioners’ filings as successive motions under Section 2255.




       5As noted earlier, Bernard also points to an amicus brief, but this offers no evidence
of procedural error beyond arguing that this court should have found Bernard’s claims
debatable and granted his COA.
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                           CONCLUSION
     For the foregoing reasons, Bernard’s and Vialva’s applications for
certificates of appealability are DENIED.




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