      Case: 20-40445          Document: 00515477986              Page: 1   Date Filed: 07/06/2020




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

                                                                                       FILED
                                            No. 20-40445                            July 6, 2020
                                                                                  Lyle W. Cayce
                                                                                       Clerk
In re: BILLY JOE WARDLOW,

                Movant

-------------------------------------------------------------------
Consolidated with 20-70012

BILLY JOE WARDLOW,

                 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 Eastern District of Texas


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*




        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      With his execution approaching, Billy Wardlow sought to reopen his
federal habeas case under Federal Rule of Civil Procedure 60(b)(6).               The
district court determined that his filing was instead a successive petition for
habeas relief and transferred it to us. Wardlow appeals that ruling, but the
district court properly characterized the filing. And because Wardlow does not
even try to invoke one of the grounds for filing a second habeas petition, he is
not eligible for any relief or a stay of execution.
                                         I.
      A jury convicted Wardlow of capital murder after he shot and killed Carl
Cole during a robbery of Cole’s home. He was sentenced to death. The Texas
Court of Criminal Appeals affirmed his conviction and sentence on direct
appeal.
      Several months later, the state trial court held a hearing on appointing
Wardlow counsel for postconviction proceedings. Wardlow told the court he
did not want a lawyer or to pursue postconviction remedies at all. The trial
court found Wardlow was mentally competent and that his waiver of appointed
counsel was knowing and voluntary. So it granted his request and sent its
findings to the Court of Criminal Appeals.
      Wardlow then changed his mind. Mandy Welch agreed to represent him,
and she notified the state courts that Wardlow wanted to proceed with
postconviction review. The state trial court confirmed Wardlow’s wishes in
supplemental findings it sent to the Court of Criminal Appeals. That court
appointed Welch as Wardlow’s attorney and ordered his application to be filed
within 180 days.
      Less than three weeks before the deadline, however, Wardlow changed
his mind again. He told the Court of Criminal Appeals he wanted “to waive
and forego all further appeals.” The court granted the request. Welch filed
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Wardlow’s habeas application before the deadline anyway. Her filing included
a statement from Wardlow authorizing it and asking the court to ignore his
latest waiver request.      The Court of Criminal Appeals dismissed the
application on the procedural ground that Wardlow had waived postconviction
remedies.
       Wardlow next filed a habeas petition in federal district court. There too
he was unsuccessful. See Wardlow v. Director, 2017 WL 3614315, at *1 (E.D.
Tex. Aug. 21, 2017).     The district court first concluded that the Court of
Criminal Appeals’ dismissal of his state habeas application on account of
waiver was “a valid procedural bar to consideration of his claims.” Id. at *10.
It then held in the alternative that Wardlow’s claims lacked merit. Id. at *11–
35.   We denied a certificate of appealability, recognizing that neither the
district court’s procedural bar ruling nor its rejection of his claims’ merits were
debatable. Wardlow v. Davis, 750 F. App’x 374 (5th Cir. 2018) (per curiam).
       After an execution date was set, Wardlow asked the Court of Criminal
Appeals to reconsider its dismissal of his initial state habeas application. The
court agreed, but it still “determined that his claims should be denied.” Ex
parte Wardlow, 2020 WL 2059742, at *1 (Tex. Crim. App. Apr. 29, 2020). It
also dismissed a subsequent application as an abuse of the writ. Id. at *2.
       The Court of Criminal Appeals’ reconsideration of Wardlow’s state
habeas application prompted him to file a motion with the federal district
court. He claimed the Court of Criminal Appeals had removed the procedural
bar that had “predisposed” the district court to rule against him on the merits.
So he asked the district court to reexamine the merits of his petition without
the procedural bar and its “distorting effects” lurking in the background. He
also requested a stay of his execution. The district court concluded that his
filing—labeled a Rule 60 motion for relief from a judgment—was actually a
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successive habeas petition that it lacked jurisdiction to consider without
authorization from the court of appeals. See 28 U.S.C. § 2244(b)(3)(A). It
transferred Wardlow’s motion to us.
      He now seeks review of the district court’s determination. We do so de
novo. In re Edwards, 865 F.3d 197, 202–03 (5th Cir. 2017) (per curiam). And
we consolidated Wardlow’s appeal of the district court’s ruling with the
proceeding requesting authorization to file a successive petition that was
created as a result of the district court’s transfer.
                                        II.
      Rule 60(b)(6) permits a court to relieve a party from a previous judgment
and reopen the case “for any . . . reason that justifies relief.” FED. R. CIV. P.
60(b)(6); see also Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). But in a habeas
case, Rule 60 motions are subject to the strictures of the Antiterrorism and
Effective Death Penalty Act (AEDPA). Gonzalez, 545 U.S. at 529. To prevent
Rule 60 from providing an end run around AEDPA’s limits on filing multiple
federal habeas petitions, a Rule 60 motion that effectively amounts to a
successive habeas petition should be treated as such. Id. at 531–32. When a
purported Rule 60 motion either presents a new habeas claim or attacks a
federal habeas court’s previous resolution of a claim on the merits, it must
comply with AEDPA’ limits on successive petitions. In re Edwards, 865 F.3d
at 203–04; see also 28 U.S.C. § 2244(b). Only a motion that credibly alleges “a
non-merits-based defect” in the district court’s initial decision is a proper Rule
60 motion. Id. at 204 (citation omitted).
      One situation warranting a Rule 60 motion is when a state court decision
removes the basis for a federal habeas court’s prior procedural default ruling
that prevented the federal court from reaching a petition’s merits. See Ruiz v.
Quarterman, 504 F.3d 523, 525–28, 531–32 (5th Cir. 2007). Wardlow says that
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is what happened when the Texas Court of Criminal Appeals reconsidered its
earlier dismissal of his state habeas application. It is not clear whether the
court was reversing its earlier procedural bar decision or merely providing
alternative, merit-based grounds to deny Wardlow’s application. See Ex parte
Wardlow, 2020 WL 2059742, at *1. We nevertheless assume arguendo that
Wardlow is right that the state court withdrew its procedural ruling.
       That is not enough for Wardlow. The district court not only decided his
claims were procedurally defaulted; it rejected his claims on the merits too. Its
procedural holding thus did not “preclude[] a merits determination.” Gonzalez,
545 at 523 n.4. Wardlow wants the district court to take another look now that
the procedural bar is supposedly gone. But that request is exactly what the
Supreme Court has said makes a nominal Rule 60 motion a successive habeas
petition: it “does not go to the integrity of the proceedings, but in effect asks for
a second chance to have the merits determined favorably.” Id. at 532 n.5.
       Recognizing that his motion looks like an attempt to relitigate the merits
of his habeas petition, Wardlow argues the district court lacked jurisdiction to
make its alternative merits holdings in light of the procedural bar it found.
But the Supreme Court has explained that, in the habeas context, procedural
default is “grounded in concerns of comity and federalism,” not jurisdiction.
Coleman v. Thompson, 501 U.S. 722, 730 (1991). 1 That is why a state can
forfeit its procedural default defense, and a court is not required to raise it sua
sponte. Trest v. Cain, 522 U.S. 87, 89 (1997). That is also why courts need not
“invariably” answer a procedural default question before others. Lambrix v.


       1 By contrast, the independent and adequate state ground doctrine has a jurisdictional
basis when the Supreme Court is considering a direct appeal from a state court. That is
because the Court’s jurisdictional statute allows it to review only judgments that implicate a
federal question. See 28 U.S.C. § 1257. “[I]f resolution of a federal question cannot affect the
judgment, there is nothing for the Court to do.” Coleman, 501 U.S. at 730.
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Singletary, 520 U.S. 518, 525 (1997); see also Busby v. Dretke, 359 F.3d 708,
720 (5th Cir. 2004) (deciding the merits of a claim after “looking past any
procedural default”). The district court thus had jurisdiction to assess the
merits in its original habeas opinion despite also finding procedural default.
      Wardlow next tries to portrays his motion as a non-merits-based attack
by asserting that the district court’s procedural bar determination “skewed” its
alternative merits rulings. But this allegation is pure speculation, and there
was nothing unusual about the court making alternative holdings. Courts,
including ours, often do so. Our court even “follows the rule that alternative
holdings are binding precedent and not obiter dictum.” Pruitt v. Levi Strauss
& Co., 932 F.2d 458, 465 (5th Cir. 1991). If anything, addressing the merits
after recognizing a procedural bar—especially when that merits analysis
extends to 24 pages, see Wardlow, 2017 WL 3614315, at *11–35—shows the
district court’s conscientious treatment of Wardlow’s case, not its neglect.
      The district court was correct: Wardlow’s recent filing should be treated
as a successive habeas petition.
                                      III.
      Wardlow does not seek our authorization to file a successive petition. He
likely recognizes that he does not qualify for any of the paths for doing so.
When it comes to a successive habeas petition, “any claim that has already
been adjudicated in a previous petition must be dismissed.” Gonzalez, 545 U.S.
at 529–30 (citing 28 U.S.C. § 2244(b)(1)). Wardlow’s recent filing asks only
that the district court reconsider the same claims he made in his initial habeas
petition. He does not rely on one of the two acceptable bases for a successive
petition: a new rule of constitutional law retroactively applicable to habeas
cases or newly discovered facts that show innocence.            See 28 U.S.C.


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§ 2244(b)(2). Because the district court already adjudicated Wardlow’s claims,
he is not entitled to reconsideration of that ruling via a second habeas motion.
                                      ***
      We AFFIRM the district court’s ruling that the self-styled Rule 60
motion should be transferred to this court as a request for authorization to file
a successive habeas application. We DENY authorization to file a second
habeas application. Having rejected Wardlow’s sole ground for relief, we also
DENY his request for a stay of execution. See In re Edwards, 865 F.3d at 209.




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