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

                                                                                   FILED
                                      No. 16-70023                            August 1, 2019
                                                                              Lyle W. Cayce
JOSEPH GAMBOA,                                                                     Clerk


              Petitioner - Appellant

v.

LORIE DAVIS, 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. 5:15-CV-113


Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Petitioner Joseph Gamboa moves for a certificate of appealability (COA)
pursuant to 28 U.S.C. § 2253(c)(2), seeking review of the district court’s denial
of his Rule 60(b) motion for relief from judgment in his 28 U.S.C. § 2254 action.
The district court ruled that the motion was an impermissible successive
habeas petition and, alternatively, that Gamboa failed to demonstrate



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-70023
extraordinary circumstances warranting relief under Rule 60(b)(6). 1                      We
conclude that reasonable jurists would not debate that Gamboa’s Rule 60(b)
motion was an unauthorized successive habeas petition and DENY a COA. 2
                                              I
       Joseph Gamboa was convicted by a Texas jury of capital murder and
sentenced to death in March 2007 for the killing of Ramiro Ayala and Douglas
Morgan during a robbery at Taco Land, a bar in San Antonio, Texas, in 2005.
Gamboa’s conviction and sentence were affirmed on direct appeal. See Gamboa
v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009). Gamboa then filed a state
habeas application, which was denied on February 4, 2015.
       In 2015, Gamboa filed a motion seeking appointment of counsel under
18 U.S.C. § 3599 to prepare a federal habeas petition. The district court
appointed John Ritenour, Jr. to represent Gamboa on March 19, 2015, and set
a deadline of July 1, 2015 to file a habeas petition. Over the next several
months, Ritenour moved three times for an extension of time to file Gamboa’s
habeas petition, seeking the full one-year limitations period under the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2244(d)(1). The district court granted these motions.
       On February 3, 2016, Ritenour filed a fifty-five-page habeas petition
alleging seven claims for relief that attacked the constitutionality of the Texas
capital sentencing scheme. Respondent filed an answer in April 2016, arguing
that all the claims were foreclosed by well-settled precedent and some claims



       1  The district court’s consideration of this alternative matter was error. The
Antiterrorism and Effective Death Penalty Act divests the district court of jurisdiction to
consider unauthorized successive habeas petitions; thus, once the district court concluded
Gamboa’s motion was a successive § 2254 petition, it should have dismissed the motion or
transferred it to this court for authorization. See 28 U.S.C. § 2244(b)(4); Burton v. Stewart,
549 U.S. 147, 152–53 (2007).
       2 Consequently, we do not reach the district court’s alternative holding that Gamboa

was not entitled to relief under Rule 60(b)(6).
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                                       No. 16-70023
were also procedurally defaulted.             Ritenour then filed an untimely two-
paragraph reply, 3 admitting that, “[a]fter considerable review and reflection,”
each claim in Gamboa’s habeas petition was foreclosed by precedent. 4 The
district court denied Gamboa’s habeas petition on the grounds that five out of
the seven claims were procedurally defaulted, one claim was partially
procedurally defaulted, and all claims lacked merit. The court denied a COA.
Ritenour then moved to withdraw, but the district court denied the motion
without prejudice. Gamboa filed a pro se declaration indicating his intent to
appeal, which the district court construed as a timely notice of appeal.
       On appeal, Ritenour again moved to withdraw, and this court granted
the motion.      After obtaining new, pro bono counsel, Gamboa successfully
obtained a stay of proceedings in this court so that he could file a motion for
relief from judgment under Federal Rule of Civil Procedure 60(b) in the district
court. In his Rule 60(b) motion, Gamboa argued that Ritenour abandoned him,
depriving him of the quality legal representation guaranteed in his federal
habeas proceedings under § 3599, and that the proceedings should therefore
be reopened to cure that defect. The district court denied the Rule 60(b) motion
as an unauthorized successive petition and, alternatively, denied the motion
on the merits for failure to show extraordinary circumstances justifying Rule
60(b) relief. The district court also denied Gamboa a COA. Gamboa now seeks
a COA in this court to challenge the district court’s ruling on his Rule 60(b)
motion.




       3 Ritenour filed the reply twenty-four days late. On May 12, 2016, ten days after a
reply was due, Ritenour filed a motion for an extension of time to file a reply, admitting that
he missed both the deadline to file a reply and the deadline to request an extension of time,
and stating that the delay was caused by his work on other legal matters. The court did not
rule on the motion.
       4 Neither the habeas petition nor the reply acknowledged the issue of procedural

default or argued that an exception applied to overcome procedural default.
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                                  No. 16-70023
                                        II
      A COA is required to appeal a district court’s denial of a Rule 60(b)
motion for relief from a federal habeas judgment. See Hernandez v. Thaler,
630 F.3d 420, 428 (5th Cir. 2011). To obtain a COA, a petitioner must make a
substantial showing of the denial of a constitutional right. Slack v. McDaniel,
529 U.S. 473, 483–84 (2000). In determining whether to grant a COA, we do
not give full consideration to “the factual or legal bases adduced in support of
the claims.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). Instead, we ask only
“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. (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
                                       III
      We first consider whether Gamboa’s Rule 60(b) motion was, as the
district court determined, an unauthorized successive habeas petition. Rule
60(b) allows a party to seek relief from a final judgment “under a limited set of
circumstances including fraud, mistake, and newly discovered evidence,”
Gonzalez v. Crosby, 545 U.S. 524, 528 (2005), or “any other reason that justifies
relief,” FED. R. CIV. P. 60(b)(6). When presented with a Rule 60(b) motion in a
habeas proceeding, the district court must first determine whether the motion
is, in reality, a second or successive habeas petition, which can only be brought
if a court of appeals first certifies that it meets the requirements of




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                                       No. 16-70023
§ 2244(b)(2). 5 A Rule 60(b) motion is a successive petition if it “advances one
or more claims” by “seek[ing] to add a new ground for relief” or “attack[ing] the
previous resolution of a claim on the merits.” Gonzalez, 545 U.S. at 532.
However, “there are two circumstances in which a district court may properly
consider a Rule 60(b) motion in a § 2254 proceeding: (1) the motion attacks a
‘defect in the integrity of the federal habeas proceeding,’ or (2) the motion
attacks a procedural ruling which precluded a merits determination.” Gilkers
v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018) (quoting Gonzalez, 545 U.S. at
532). This court construes these exceptions narrowly to include “[f]raud on the
habeas court” or “erroneous previous ruling[s] which precluded a merits
determination,” such as the denial of a petition for “failure to exhaust,
procedural default, or statute-of-limitations bar.” In re Coleman, 768 F.3d 367,
371 (5th Cir. 2014) (internal quotation marks omitted). But see Crutsinger v.
Davis, No. 18-70027, 2019 WL 2864445, at *4 (5th Cir. July 3, 2019) (a Rule
60(b) motion attacking the district court’s denial of funding under 18 U.S.C.
§ 3599(f) in the first federal habeas proceeding was not a successive habeas
petition); Clark v. Davis, 850 F.3d 770 (5th Cir. 2017) (an allegation of federal




       5  A second or successive habeas petition must be dismissed unless a court of appeals
certifies that:
       (A) the applicant [has shown] that the claim relies on a new rule of
       constitutional law, made retroactive to cases on collateral review by the
       Supreme Court, that was previously unavailable; or
       (B)(i) the factual predicate for the claim could not have been discovered
       previously through the exercise of due diligence; and (ii) the facts underlying
       the claim, if proven and viewed in light of the evidence as a whole, would be
       sufficient to establish by clear and convincing evidence that, but for
       constitutional error, no reasonable factfinder would have found the applicant
       guilty of the underlying offense.
28 U.S.C. § 2244(b)(2); see also Gonzalez, 545 U.S. at 530.
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                                  No. 16-70023
habeas counsel’s conflict of interest attacked a defect in the integrity of habeas
proceedings).
      The district court construed Gamboa’s Rule 60(b) motion as a successive
habeas petition. The court reasoned that, if Gamboa succeeded on his Rule
60(b) motion, the only result would be to give him an opportunity to present
new claims through new counsel. The court also reasoned that the Rule 60(b)
motion, by alleging counsel’s failure to investigate various potential claims,
evidenced an intent to eventually raise new claims. Accordingly, the court
concluded that Gamboa’s motion was an impermissible attempt to
“circumvent” § 2244 by “using his abandonment allegation as a means to re-
open the proceedings for the ultimate purpose of eventually raising and
litigating new claims” and that this was “the very definition of a successive
petition.” Gamboa argues that his Rule 60(b) motion was not a successive
habeas petition because it did not contain substantive claims for relief or
challenge the district court’s resolution of his habeas claims on the merits.
Instead, he emphasizes that his Rule 60(b) motion alleged abandonment by
Ritenour during the habeas proceedings, culminating in Ritenour’s filing of a
petition with seven generic claims challenging the Texas capital sentencing
scheme that were copied and pasted from another client’s petition.             He
contends that his allegation of abandonment is an attack on the integrity of
the habeas proceedings and not on the district court’s resolution of any claim
on the merits.
      Challenges based on the movant’s own conduct, or omissions by habeas
counsel, “ordinarily do[] not go to the integrity of the proceedings, but in effect
ask[] for a second chance to have the merits determined favorably.” Coleman,
768 F.3d at 371 (citing Gonzalez, 545 U.S. at 532 n. 5). Gamboa argues that
Ritenour’s actions exceeded ordinary attorney omissions and amounted to


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                                       No. 16-70023
“wholesale abandonment,” depriving him of his statutory right to counsel
under § 3599. 6 However, in In re Edwards, this court held that:

       Turning to the issue of the alleged abandonment of his habeas
       counsel, the district court was correct that this claim is also a
       successive claim. The Rule 60(b) motion seeks to re-open the
       proceedings for the purpose of adding new claims. This is the
       definition of a successive claim.
See 865 F.3d 197, 204–05 (5th Cir. 2017). The court reasoned that “arguments
about counsel’s failure to discover and present particular arguments sound[]
in substance, not in procedure.” Id. at 205 (citing Coleman, 768 F.3d at 372).
       Troubling though Gamboa’s allegations of attorney abandonment may
be, reasonable jurists would not debate the district court’s holding that his
Rule 60(b) motion was an unauthorized successive habeas petition in light of
Edwards. See Miller-El, 537 U.S. at 336. Accordingly, a COA is DENIED.




       6  Gamboa claims that Ritenour’s case load, ailing health, and other personal matters
led Ritenour to abandon him. Specifically, he claims that Ritenour only met with him once
prior to filing the habeas petition and “told [Gamboa] that he had read the state court record
in [his] case and believed [Gamboa] was guilty”; that, despite the standards for federal habeas
counsel in death penalty cases, Ritenour failed to form a representation team that included
multiple attorneys, investigators, and experts; that Ritenour failed to speak to Gamboa’s
family members, or to investigate and prepare Gamboa’s petition even after three filing
extensions; that Ritenour failed to conduct legal research until the day before the filing
deadline; that Ritenour ignored documents Gamboa gave him that Gamboa contends
contained potential witnesses and leads; that Ritenour failed to communicate with him
throughout the proceedings; that Ritenour filed a seven-claim petition that he copied and
pasted from the habeas petition of another client, Obie Weathers, that contained generic,
legally-foreclosed challenges to the Texas death penalty scheme; and that Ritenour filed an
untimely, two-paragraph reply brief conceding the claims in the habeas petition were
foreclosed.
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                                       No. 16-70023
JAMES L. DENNIS, Circuit Judge, specially concurring:
       Gamboa argues that his Rule 60(b) motion alleged a defect in the
integrity of his federal habeas proceedings by attacking the performance of his
federal    habeas      counsel,     John     Ritenour,     whose      alleged    “wholesale
abandonment” of Gamboa exceeded ordinary attorney omissions and deprived
him of his statutory right to counsel under 18 U.S.C. § 3599. I acknowledge
that reasonable jurists would not debate the district court’s ruling that
Gamboa’s Rule 60(b) motion was a successive habeas petition because we are
bound by In re Edwards, 865 F.3d 197 (5th Cir. 2017). However, I write
separately to express my view that Edwards’s holding should be reconsidered
and overruled because a Rule 60(b) motion alleging abandonment by counsel
can, at least in some instances, attack a defect in the integrity of the habeas
proceedings.
       Edwards held that a Rule 60(b) motion alleging abandonment by habeas
counsel is “the definition of a successive” habeas claim because it “seeks to re-
open the proceedings for the purpose of adding new claims.” See id. If Edwards
is interpreted to mean that a Rule 60(b) motion is always improper if granting
it would ultimately permit a party to pursue claims for relief under 28 U.S.C.
§ 2254 or § 2255, this interpretation is obviously incorrect: A Rule 60(b) motion
for relief from judgment in the habeas context is designed to reopen the
proceedings to allow a petitioner to have claims heard on the merits. 1 See


       1 Here, Respondent argues that Gamboa’s Rule 60(b) motion is a successive habeas
petition because it sought to raise and advance substantive claims. Gamboa’s Rule 60(b)
motion mentioned several potentially meritorious, case-specific claims that Ritenour did not
bring, including a potential Brady violation. However, he presented these claims in a few
paragraphs detailing Ritenour’s failure to investigate or conduct discovery and as further
evidence that he was allegedly deprived of the quality legal representation guaranteed by
§ 3599. Thus, in my view, it is debatable whether Gamboa’s objective in discussing these
potential claims was to challenge the district court’s resolution of his habeas petition on the
merits or to argue that counsel’s abandonment was a defect in the integrity of the
proceedings. See In re Segundo, 757 F. App’x 333, 336 (5th Cir. 2018) (a Rule 60(b) motion
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                                         No. 16-70023
United States v. Vialva, 904 F.3d 356, 361 (5th Cir. 2018) (“[T]he question
before us is not whether Rule 60(b) motions can reopen proceedings—they
certainly can—but whether [petitioners] have actually alleged procedural
defects cognizable under Rule 60(b).”). As the Tenth Circuit stated in In re
Pickard:

       What else could be the purpose of a 60(b) motion? The movant is
       always seeking in the end to obtain [28 U.S.C.] § 2255 relief. The
       movant in a true Rule 60(b) motion is simply asserting that he did
       not get a fair shot in the original § 2255 proceeding because its
       integrity was marred by a flaw that must be repaired in further
       proceedings.
681 F.3d 1201, 1206 (10th Cir. 2012).
       If Edwards is interpreted to hold that a Rule 60(b) motion alleging
abandonment by counsel is always a successive habeas petition, this
interpretation is also overly broad and misses the mark. First, the Supreme
Court has implicitly noted that extraordinary omissions by counsel may rise to
the level of a defect in the integrity of habeas proceedings. See Gonzalez, 545
U.S. at 532 n.5 (noting that omissions by habeas counsel “ordinarily” do not go
to the integrity of the habeas proceedings). Second, this court has already
recognized that a conflict of interest by habeas counsel can constitute a defect
in the integrity of the proceedings, see Clark v. Davis, 850 F.3d 770 (5th Cir.
2017); In re Paredes, 587 F. App’x 805, 823 (5th Cir. 2014), and abandonment
by habeas counsel is analogous.




alleging a claim of ineffective assistance of counsel was a successive habeas petition where
the “claim was the focus of the motion, and reopening the proceedings to relitigate it is the
clear objective of the filing” (citing Preyor, 704 F. App’x at 340)); Haynes v. Davis, 733 F. App’x
766, 769 (5th Cir. 2018) (“[W]hile the viability of a petitioner’s underlying constitutional
claim may be tangentially relevant to the Rule 60(b) analysis, the Rule may not be used to
attack ‘the substance of the federal court’s resolution of a claim on the merits.” (internal
citations and quotation marks removed)).
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                                  No. 16-70023
      In Gonzalez, the Supreme Court “note[d] that an attack based on . . .
habeas counsel’s omissions . . . ordinarily does not go to the integrity of the
[habeas] proceedings,” thereby implicitly suggesting that some omissions by
counsel could rise to the level of impacting the integrity of the proceedings. See
545 U.S. at 532 n.5 (emphasis added); see also In re Coleman, 768 F.3d 367,
371 (5th Cir. 2014) (an attack based on habeas counsel’s omissions “generally”
“do[es] not go to the integrity of the proceedings”). The Court noted with
approval the Second Circuit’s holding in Harris v. United States, 367 F.3d 74,
80–81 (2nd Cir. 2004), that a Rule 60(b) motion asserting that counsel omitted
a Sixth Amendment claim was a successive habeas petition. See id. at 530–31.
Notably, however, Harris’s holding emphasizes a distinction between
allegations of ordinary omissions by counsel and abandonment. See Harris,
367 F.3d at 80–81. According to the Second Circuit:

      It follows that the integrity of a habeas proceeding cannot be
      impugned under Rule 60(b)(6) using the standard established in
      [Strickland v. Washington, 466 U.S. 668, 687 (1984)]. Instead, a
      Rule 60(b)(6) movant must show that his lawyer agreed to
      prosecute a habeas petitioner’s case, abandoned it, and
      consequently deprived the petitioner of any opportunity to be
      heard at all.
Id. at 81. This distinction exists because, unlike ordinary omissions by counsel,
abandonment “sever[s] the principal-agent relationship” and “an attorney no
longer acts, or fails to act, as the client’s representative.”    See Maples v.
Thomas, 565 U.S. 266, 281 (2012); see also In re Jasper, 559 F. App’x 366, 371
(5th Cir. 2014). “[A] client [cannot] be faulted for failing to act on his own
behalf when he lacks reason to believe his attorneys of record, in fact, are not
representing him.” See Maples, 565 U.S. at 283.
      Second, Edwards’s holding is also called into question by this court’s
recognition in Clark, 850 F.3d at 780, that an allegation that an attorney has
a conflict of interest attacks the integrity of the habeas proceedings, and not
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                                      No. 16-70023
the substance of the district court’s resolution of the claim on the merits. As
Clark discussed, a conflict of interest arises when a petitioner has meritorious
but procedurally defaulted claim that his trial counsel was ineffective, but is
represented by federal habeas counsel who also served as the petitioner’s state
habeas counsel. See 850 F.3d at 779 (discussing Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013)). This is because that
habeas attorney “could not be expected to argue his own ineffectiveness to
overcome” the procedural default of that ineffective-assistance-of counsel
claim. See id. This court has held that, in such situations, because counsel
“prevent[ed] [the petitioner] from having his ineffective-assistance-of-counsel
claim reviewed on the merits,” a Rule 60(b) motion asserting a conflict of
interest attacks a defect in the integrity of the habeas proceedings and is not
an impermissible successive petition. 2 See id. at 779–80.
       This court’s reasoning that an allegation of a conflict of interest can
warrant reopening of habeas proceedings without running afoul of 28 U.S.C.
§ 2244’s bar on unauthorized successive petitions should apply with equal force
when a petitioner alleges actual or constructive abandonment by counsel. In
every action in which a criminal defendant is charged with a crime punishable
by death and cannot afford adequate representation, the defendant is
guaranteed a right to counsel. See 18 U.S.C. § 3599(a). “[T]he right to counsel


       2  The Edwards court acknowledged the conflict-of-interest exception recognized in
Clark but concluded that Edwards did not assert the same type of conflict of interest and
found it inapposite. See Edwards, 865 F.3d at 206–07 (“Edwards asks us to extend the
reasoning of Clark to his case. The district court found that a reasonable jurist could differ
as to whether Edwards’s alleged abandonment by counsel ‘could be the sort of defect in the
integrity of the federal habeas proceedings that could warrant Rule 60(b) relief’ and granted
a COA on it. The district court correctly observed, however, that Edwards . . . ‘has not shown
the type of conflict of interest presented in Clark.’” (internal citations omitted)). Here,
however, Gamboa’s Rule 60(b) motion did not assert that Ritenour had the same type of
conflict of interest at issue in Clark; rather, Gamboa argued that Clark established a defect
in the integrity of the proceedings that is analogous to the defect resulting from attorney
abandonment.
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necessarily includes a right for that counsel meaningfully to research and
present a defendant’s habeas claims. Where this opportunity is not afforded,
approving the execution of a defendant before his [petition] is decided on the
merits would clearly be improper.” McFarland v. Scott, 512 U.S. 849, 858
(1994) (discussing 21 U.S.C. § 848(q), which in 2006 was repealed and
substantially reenacted as 18 U.S.C. § 3599 (internal citations and quotation
marks omitted)). Section 3599(a) creates a statutory right to conflict-free-
counsel, see Mendoza v. Stephens, 783 F.3d 203, 210 (5th Cir. 2015), and to
“proper representation,” see 18 U.S.C. § 3599(a), (c)–(d); see also McFarland,
512 U.S. at 858. Like conflicted counsel, who cannot “be expected to argue his
own ineffectiveness,” see Clark, 850 F.3d at 779, an attorney who has actually
or constructively abandoned his client cannot be expected to raise meaningful
claims on his client’s behalf, if he raises any claims at all.
      A similar deprivation thus results from counsel’s abandonment and
conflict of interest, as each prevents the district court from ever considering
the petitioner’s claims on the merits. See id.; see also McFarland, 512 U.S. at
859 (“By providing indigent capital defendants with a mandatory right to
qualified legal counsel in these proceedings, Congress has recognized that
federal habeas corpus has a particularly important role to play in promoting
fundamental fairness in the imposition of the death penalty.”). For example,
where, as here, a petitioner alleges that counsel abandoned him prior to filing
a habeas petition and ultimately filed a petition containing only pro forma
claims, allowing the petitioner to proceed with new and adequate
representation would cure the defect in the habeas proceedings resulting from
counsel’s abandonment. See Clark, 850 F.3d at 779–80.
      Edwards’s broad holding that a Rule 60(b) motion alleging abandonment
is a successive habeas petition forecloses allegations of abandonment that I
believe legitimately attack a defect in the integrity of the habeas proceedings
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                               No. 16-70023
without impermissibly attempting to “circumvent” the requirements of § 2244.
See Gonzalez, 545 U.S. at 532. In my view, but for Edwards, Gamboa’s Rule
60(b) motion would not be an unauthorized successive habeas petition.




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