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

                                                                     FILED
                                                                 March 8, 2019
                               No. 18-10732
                                                                Lyle W. Cayce
                                                                     Clerk
IN RE: JULIUS OMAR ROBINSON,

                 Movant.

                               * * * * *


                               No. 18-70022


UNITED STATES OF AMERICA,

                Plaintiff–Appellee,

versus

JULIUS OMAR ROBINSON, Also Known as Face,
Also Known as Scar, Also Known as Scarface,

                 Defendant–Appellant.



              Appeals from the United States District Court
                   for the Northern District of Texas




Before HIGGINBOTHAM, SMITH, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Julius Robinson was sentenced to death for his role in multiple murders.
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After we affirmed his conviction on direct appeal, Robinson filed a federal
habeas corpus petition asserting six grounds for relief. The district court
denied the petition. Nearly ten years later, Robinson filed a Federal Rule of
Civil Procedure 60(b)(6) motion for relief from judgment. The district court
determined that Robinson’s motion was “in actuality a second or successive
petition for habeas relief” and transferred it to this court.

       Robinson maintains that the district court erred by construing his Rule
60(b)(6) motion as a second or successive habeas petition. Finding no error,
and that Robinson fails to meet the standard for a second or successive petition,
we deny his motion for authorization and dismiss for want of jurisdiction.

                                               I.
       In 1998, Robinson murdered Johnny Shelton, “a man he mistakenly
believed responsible for an armed hijacking that cost him $30,000.” United
States v. Robinson, 367 F.3d 278, 282 (5th Cir.), cert. denied, 543 U.S. 1005
(2004). Five months later, Robinson killed Juan Reyes in retaliation for “a
fraudulent drug transaction in which [Robinson] paid $17,000 for a block of
wood covered in sheetrock.” Id. Robinson was also involved “in a broad con-
spiracy that led to the murder of Rudolfo Resendez at the hands of Britt and
Hendrick Tunstall.” Id. at 283.

       In 2002, a jury convicted Robinson on sixteen counts, including, inter
alia, 1 one count of murder while engaging in a continuing criminal enterprise,


       1 The jury also convicted Robinson on one count of conspiracy to distribute more than
100 kilograms of marihuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (Count 1); one
count of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A) (Count 2); three counts of possession of a firearm in furtherance of a
drug trafficking crime, in violation of § 924(c)(1)(A)(i), (C)(i) (Counts 4, 8, and 17); three
counts of carrying or using a firearm during a drug trafficking crime, in violation of
§ 924(c)(1)(A)(ii) (Counts 5, 9, and 13); and three counts of carrying or using and discharging
a firearm during a drug trafficking crime, in violation of § 924(c)(1)(C)(iii) (Counts 6, 10,
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in violation of 21 U.S.C. § 848(e) (2012) (Count 3); three counts of murder in
the course of carrying or using a firearm during a drug trafficking crime, in
violation of 18 U.S.C. § 924(j) (Counts 7, 11, and 15); and one count of murder
while engaged in possession of more than five kilograms of cocaine with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 848(e)
(Count 12). The district court sentenced Robinson to death on Counts 3, 7,
and 11. The court imposed a life sentence on Counts 12 and 15, to be served
concurrently, and 300 months on Count 17, to run consecutively to the sen-
tences on Counts 12 and 15. 2 We affirmed Robinson’s conviction and sentence
on direct appeal. Robinson, 367 F.3d at 293.

       In 2005, Robinson initiated federal habeas proceedings via a motion to
vacate conviction and sentence and for a new trial under 28 U.S.C. § 2255 and
Rule 33 of the Federal Rules of Criminal Procedure. Robinson raised six
grounds: (1) ineffective assistance of counsel (“IAC”) during the penalty phase,
(2) an equal protection (Batson) claim related to the prosecuting attorney’s
alleged use of preemptory challenges in a racially motived manner, (3) a claim
that the Federal Death Penalty Act, as applied in Texas, violates the Equal
Protection Clause, (4) a claim of IAC on appeal, (5) a due process claim related
to the prosecuting attorney’s alleged pursuit of fundamentally inconsistent
theories at seriatim capital trials, and (6) a due process claim related to the
prosecutor’s alleged use of false and misleading testimony during the penalty
phase. Robinson sought to amend his motion by adding a seventh ground for


and 14).
       2 The court did not impose a sentence on Counts 1 and 2 because these counts are
lesser included offenses of Count 3. Similarly, it declined to impose a sentence on Counts 4,
5, and 6 because each is a lesser included offense of Count 7. Moreover, the court did not
impose a sentence on Counts 8, 9, and 10 because those three counts are lesser included
offenses of Count 11. Lastly, it declined to impose a sentence on Counts 13 and 14 because
they are lesser included offenses of Count 15.
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relief—a defective-indictment claim based on the prosecuting attorney’s failure
to include aggravating factors for the capital charge. The district court granted
in part Robinson’s motion to amend, allowing him to “add documentary
evidence and corresponding argument relating back to his original petition.”
The court denied Robinson’s request to add the defective-indictment claim,
finding that we had already addressed the issue on direct appeal. 3

       In 2008, the district court denied Robinson’s motion to vacate his con-
viction and sentence under 28 U.S.C. § 2255, finding that each of his claims
was without merit. The court also denied Robinson’s motions for a new trial
and an evidentiary hearing. With respect to Robinson’s request that the court
hold an evidentiary hearing on his habeas grounds for relief, the court noted
that “the record before [it], including the exhibits submitted by Robinson with
his motion, do[es] not create any contested fact issues that must be resolved in
order to decide Robinson’s claims.” 4 Moreover, the court decided Robinson’s
habeas claims “either by assuming that everything Robinson allege[d] [was]
true or based on legal, not factual, bases.” Consequently, “because the record
before [the district] [c]ourt show[ed] conclusively that Robinson [was] not
entitled to relief, his request for an evidentiary hearing [was] denied.”

       Robinson filed a Federal Rule of Civil Procedure 59(e) motion for recon-



       3 See United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (“It is settled in this
Circuit that issues raised and disposed of in a previous appeal from an original judgment of
conviction are not considered in § 2255 [m]otions.”). On direct appeal, we held that “the
failure to charge [the death penalty aggravating] factors in an indictment did not contribute
to Robinson’s conviction or death sentence.” Robinson, 367 F.3d at 289. The district court
also determined that the Supreme Court cases cited by Robinson—United States v. Gonzalez–
Lopez, 548 U.S. 140 (2006), and United States v. Resendiz–Ponce, 549 U.S. 102 (2007)—were
inapposite, and, in any event, because these cases considered procedural errors, they were
not retroactively applicable to cases on collateral review.
       Section 2255 “does not automatically require a hearing to dispose of every motion
       4

made under its statutory authority.” Coco v. United States, 569 F.2d 367, 369 (5th Cir. 1978).
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sideration of the order denying the motion to vacate sentencing without an
evidentiary hearing. The district court denied that motion 5 and declined to
issue a certificate of appealability (“COA”). We affirmed, and the Supreme
Court denied Robinson’s petition for writ of certiorari.

       In February 2018, Robinson filed a Rule 60(b)(6) motion for relief from
judgment. He asserted that “the lack of due process in his post-conviction pro-
ceedings constituted an extraordinary circumstance that justified re-opening
the judgment in his case pursuant to Rule 60(b).” Relying on Supreme Court
precedent established after the district court denied his § 2255 motion, Robin-
son contended that the district court (1) “wrongly denied his ability to appeal”
because that court (and the Fifth Circuit) “applied an erroneously high stan-
dard for obtaining a [COA],” (2) “erroneously barred [him] from conducting a
reasonable investigation,” and (3) erroneously denied his “right to amend his
[§] 2255 motion to include his [defective-indictment] claim.”

       The district court determined that the motion was, “in actuality[,] a sec-
ond or successive petition for habeas relief” and transferred it to this court. On
appeal, Robinson asserts that the district court improperly construed his
Rule 60(b)(6) motion as a second or successive § 2255 motion. In the event,
however, that we find the district court did not err, Robinson asks that we



       5 The court emphasized that “[b]ona fide contested issues of fact raised in a motion to
vacate brought under § 2255 must be resolved on the basis of an evidentiary hearing. . . . But
§ 2255 does not require a hearing if the motion, files, and record of the case conclusively
demonstrate that no relief is appropriate.” The court also stressed that “the record before
this Court, including the exhibits submitted by Robinson with his motions, do[es] not create
any contested fact issues with regard to Robinson’s insufficiency-of-counsel claims that must
be resolved in order to decide his case.” Instead, the court noted, “many of Robinson’s claims
are based on the record from the trial.” Moreover, “with regard to the claims for which Robin-
son has submitted additional evidence, the Court . . . decided these claims based on uncon-
tested allegations of fact and, where facts are contested, by assuming that what Robinson
alleges is true, or based on legal, not factual, bases.”
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certify a second or successive § 2255 motion so that he may raise his impartial-
jury claim in the district court.

                                        II.
      “We review a district court’s determination as to whether a Rule 60(b)
motion constitutes a second-or-successive habeas petition de novo.”              In re
Edwards, 865 F.3d 197, 202–03 (5th Cir.), cert. denied, 137 S. Ct. 909 (2017).

                                        A.
      Federal habeas review for a prisoner in federal custody is governed by
 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Pen-
 alty Act of 1996 (“AEDPA”). “AEDPA limits the circumstances under which a
 [federal] prisoner may file a successive application for federal habeas review.”
 Edwards, 865 F.3d at 203. Under § 2255(h),
        [a] second or successive motion must be certified as provided in
      section 2244 by a panel of the appropriate court of appeals to
      contain—
             (1) newly discovered evidence that, if proven and viewed in
            light of the evidence as a whole, would be sufficient to establish
            by clear and convincing evidence that no reasonable fact-finder
            would have found the movant guilty of the offense; or
             (2) a new rule of constitutional law, made retroactive to cases
            on collateral review by the Supreme Court, that was previ-
            ously unavailable.
28 U.S.C §2255(h). Section 2244(a) provides,
          No circuit or district judge shall be required to entertain an
      application for a writ of habeas corpus to inquire into the deten-
      tion of a person pursuant to a judgment of a court of the United
      States if it appears that the legality of such detention has been
      determined by a judge or court of the United States on a prior
      application for a writ of habeas corpus, except as provided in sec-
      tion 2255.
A petition is successive when it ‘raises a claim . . . that was or could have been
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raised in an earlier petition . . . .’” Edwards, 865 F.3d at 203 (quoting Harde-
mon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008)).

       Federal Rule of Civil Procedure 60(b)(6) authorizes a court to “relieve a
party or its legal representative from a final judgment, order, or proceeding for
. . . any other reason that justifies relief.” To prevail on a Rule 60(b)(6) motion
in a federal habeas proceeding, a movant must establish that (1) the motion
was “made within a reasonable time” 6 and (2) “‘extraordinary circumstances’
[exist to] justify[] the reopening of a final judgment.” Gonzalez v. Crosby,
545 U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 U.S.
193, 199 (1950)). 7 Extraordinary circumstances “will rarely occur in the
habeas context.” Id.

       “Because of the comparative leniency of Rule 60(b) [as compared to
AEDPA], petitioners sometimes attempt to file what are in fact second-or-
successive habeas petitions under the guise of Rule 60(b) motions.” Edwards,
865 F.3d at 203. “[T]o bring a proper Rule 60(b) claim, a movant must show ‘a
non-merits-based defect in the district court’s earlier decision on the federal
habeas petition.’” Id. at 204 (quoting Balentine v. Thaler, 626 F.3d 842, 847
(5th Cir. 2010) (emphasis added). Thus, we have cautioned that
       it is extraordinarily difficult to bring a claim of procedural defect
       rather than a successive habeas claim, because ‘[p]rocedural defects
       are narrowly construed. They include fraud on the habeas court, as
       well as erroneous previous rulings which precluded a merits


      Rule 60(c) states, “A motion under Rule 60(b) must be made within a reasonable
       6

time—and for reasons [in (b)](1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.”
       7Although Gonzalez addressed the application of a Rule 60(b) motion only in the
context of a § 2254 habeas proceeding, we have joined “[n]early every circuit [in applying]
the Gonzalez rationale to federal prisoners seeking habeas relief under § 2255.” Williams
v. Thaler, 602 F.3d 291, 302 & n.4 (5th Cir. 2010) (collecting cases); see also United States
v. Roberts, 360 F. App’x 584, 585 (5th Cir. 2010).
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       determination—for example, a denial for such reasons as failure to
       exhaust, procedural default, or statute-of limitations bar. They
       generally do not include an attack based on the movant’s own con-
       duct, or his habeas counsel’s omissions, which do not go to the integ-
       rity of the proceedings, but in effect ask for a second chance to have
       the merits determined favorably.’
Id. at 205 (quoting In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014)).

       Accordingly, “[a] federal court examining a Rule 60(b) motion should
determine whether it either: (1) presents a new habeas claim (an ‘asserted
federal basis for relief from a . . . judgment of conviction’), or (2) ‘attacks the
federal court’s previous resolution of a claim on the merits.’” Id. at 203 (quoting
Gonzales, 545 U.S. at 530, 532). 8 A “Rule 60(b) motion [that] does either . . .
should be treated as a second-or-successive habeas petition and subjected to
AEDPA’s limitation on such petitions.” Id. at 204. But a petitioner who “merely
asserts that a previous ruling which precluded a merits determination was in
error—for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar,” is not asserting one of the aforemen-
tioned grounds. Id. 9

                                              B.
       Robinson contends that the district court erred when it construed his
claim concerning the denial of a COA as a second or successive habeas petition.
After the district court denied relief on each of the six grounds he raised in his



       8 A federal court makes a merits determination when it concludes that “there exist or
do not exist grounds entitling a petitioner to habeas corpus relief . . . .” Gonzalez, 545 U.S.
at 532 n.4. So, “[w]hen a movant asserts one of those grounds (or asserts that a previous
ruling regarding one of those grounds was in error) he is making a habeas corpus claim.” Id.
       9 If a Rule 60(b) “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 proper.” Coleman, 768 F.3d at 371 (quoting Gonzalez, 545 U.S.
at 532).
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initial § 2255 motion, Robinson moved for a COA on his penalty-phase IAC
claim. The court denied the application. Robinson then sought a COA from
this court, but we also declined. The Supreme Court denied Robinson’s petition
for writ of certiorari. Robinson v. United States, 565 U.S. 827 (2011).

       Robinson cites Buck v. Davis, 137 S. Ct. 759, 774 (2017), in which the
Court reaffirmed that “[a] ‘court of appeals should limit its examination [at the
COA stage] to a threshold inquiry into the underlying merit of [the] claims,’
and ask ‘only if the District Court’s decision was debatable.’” Id. (quoting
Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003)). Robinson maintains that
both the district court and this circuit erred when each declined to issue a COA
to him because both courts “effectively required him to prove he would succeed
on appeal before granting the right to appeal.” Robinson asserts that both
courts should have merely determined whether “it was at least debatable that
he was deprived of the effective assistance of counsel at the penalty phase of
his trial.”

       Robinson avers that the district court wrongly decided that “[t]he denial
of a COA did not preclude a merits determination,” because “merits review by
an appellate court is . . . its own independent proceeding that the appellant has
a right to access.” Because “appellate merits review is a separate entity, . . .
an erroneous procedural ruling that precludes appellate merits review is
entitled to reconsideration under Rule 60(b).”

       The government maintains that Robinson’s denial-of-COA claim “is not
a proper basis for a Rule 60(b)(6) motion because it does not seek to reopen a
ruling that precluded a merits determination of his [IAC] claim.” Rather, Rob-
inson “seeks to reopen a ruling (the denial of a COA) that followed the district
court’s merits-based ruling on [his] [IAC] claim.” The government emphasizes
that “a Rule 60(b) motion that seeks to revisit the federal court’s denial on the
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merits of a claim for relief should be treated as a successive habeas petition”
(quoting Gonzalez, 545 U.S. at 534). 10 Asserting that Robinson’s Rule 60(b)
motion attempts to do just that, the government contends that the district
court correctly determined the motion was a second or successive § 2255
motion. 11

       The district court correctly concluded that Robinson “badly misreads
Gonzalez.” The denial of a COA on Robinson’s IAC claim did not preclude a
merits determination. Instead, the court reviewed and denied the claim on its
merits as part of Robinson’s initial § 2255 motion. Because his Rule 60(b)
motion attacks the district court’s merits-based resolution of his IAC claim, it
is best viewed as a second or successive petition. 12 The court did not err in
finding that it had “no jurisdiction to consider [the motion].”

                                             C.
       Robinson asserts that the district court erred in determining that his
request to interview the jurors was a second or successive § 2255 motion. He
contends that “he was unreasonably barred from interviewing the trial jurors,
thus depriving him of a reasonable post-conviction investigation.” Citing In re
Sessions, 672 F.2d 564, 566 (5th Cir. 1982), Robinson maintains that “it is well-
settled law that a denial of discovery is not akin to a denial on the merits of a


       10The government highlights that “Robinson points to no authority holding that a
ruling that precludes appellate review is the same as a ruling that precludes a merits
determination.”
       11 The government also avers that Buck does not “stand for the proposition that the
denial of a COA is a proper basis for a Rule 60(b) motion” because “the denial of the COA was
not the basis for Buck’s Rule 60(b) motion.” Instead, the inverse was true: “Buck sought a
COA to appeal the denial of his Rule 60(b) motion . . . .”
       12See Gonzalez 545 U.S. at 532; Edwards, 865 F.3d at 203. The district court deter-
mined that Robinson’s motion was, “‘if not in substance a habeas corpus application, at least
similar enough that failing to subject it to the same requirements would be inconsistent with
the statute’ governing successive petitions” (quoting Gonzalez, 545 U.S. at 531).
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claim for relief.” 13   He cites Mitchell v. Rees, 261 F. App’x 825, 828–29 (6th Cir.
2008), for the proposition that “if [reopening] a case for the purposes of holding
an evidentiary hearing is a valid use of Rule 60(b), then [reopening] to conduct
juror interviews must certainly be valid.”

       Robinson avers that the district court was not correct that his “request
. . . seeks to develop evidence in support of an impartial-jury claim under the
Sixth Amendment.” He contends that as part of his first habeas petition, he
sought to interview jurors and that “the reason that [an impartial-jury] claim
was not raised to the [d]istrict [c]ourt in Robinson’s amended [§] 2255 motion
was because the court prevented Robinson from conducting discovery.” Con-
sequently, “Robinson’s inability to raise an [impartial-jury] claim is a prime
example of a defect in the integrity of the habeas proceedings.”

       In response, the government maintains that Robinson’s Rule 60(b)
motion seeks to “reopen the [§] 2255 proceedings so that he [can] interview
jurors ‘to determine what role, if any, racial bias played in his convictions and
sentences.’”      The government notes, correctly, that “[a] habeas petitioner,
unlike the usual civil litigant in federal court, is not entitled to discovery as a
matter of ordinary course.”          Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Rather, as we stated in United States v. Fields, 761 F.3d 443, 478 (5th Cir.
2014), “[a] petitioner demonstrates ‘good cause’ [for discovery] under Rule 6(a)
[of the Rules Governing § 2255 Proceedings] ‘where specific allegations before
the court show reason to believe that a petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to relief” (quoting
Bracy, 520 U.S. at 908–09). 14


        See also Wellons v. Hall, 558 U.S. 220, 223 (2010) (per curiam). Robinson concedes,
       13

however, that “Sessions does not concern Rule 60(b) motions.”
       14   Rule 6(a) of the Rules Governing § 2255 Proceedings “does not authorize fishing
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       The government emphasizes that Robinson’s previous request to inter-
view jurors, filed as part of his first § 2255 petition, did not concern a potential
impartial-jury claim, but instead related to his Batson and IAC claims. The
government also highlights that when he made his initial interview request,
Robinson expressly acknowledged that he did not have a viable impartial-jury
claim. Accordingly, although Robinson “certainly had the ability to bring the
claim in his original [§] 2255 motion or to seek leave to amend his motion to
add the claim,” he “chose not to because . . . there was no evidence to support
such a claim.” 15

       The best view is that Robinson is attempting to advance a new habeas
claim related to jury impartiality (in light of Pena-Rodriguez v. Colorado, 137
S. Ct. 855 (2017)) under the guise of a Rule 60(b)(6) motion. His “motion seeks
to re-open the proceedings for the purpose of adding new claims” and, as such,
is “the definition of a successive claim.” Edwards, 865 F.3d at 204.

       The denial of Robinson’s discovery request during his initial habeas
proceedings—a request that was then related to his Batson and IAC claims—
did not prevent a merits determination on those issues. Moreover, Robinson
was not prevented from litigating his impartial-jury claim because of “a denial
for such reasons as failure to exhaust, procedural default, or statute-of-
limitations bar.” See Gonzalez, 545 U.S. at 532 n.4. Instead, Robinson chose



expeditions.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
       15  The government also posits that “[g]iven that federal courts disfavor post-verdict
interviewing of jurors except where there is some showing of an illegal or prejudicial intrusion
into the jury process, United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976), and that by
Robinson’s own admission, he could not make that requisite showing, Robinson’s alleged
‘inability’ to bring an impartial-jury claim hardly represents a ‘defect’ in the proceedings.” In
Riley, we strongly cautioned that “Courts simply [must] not denigrate jury trials by after-
wards ransacking the jurors in search of some ground, not previously supported by evidence,
for a new trial.” Id.
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not to bring this claim in his initial § 2255 motion because, as he acknowledged,
such a claim was frivolous. 16

       To the extent that Robinson now attempts to bring such a claim, the gov-
ernment rightly posits that “[b]ecause the merits of Robinson’s discovery
request to interview jurors [are] wrapped up with, and dependent on, his abil-
ity to bring a new claim for relief from the judgment of his conviction,” his
request is “a paradigmatic habeas claim.” Rodwell v. Pepe, 324 F.3d 66, 72 (1st
Cir. 2003). 17 Accordingly, this claim is best viewed as a second or successive
§ 2255 motion.

       Ultimately, “[u]sing Rule 60(b) to present new claims for relief from a
. . . court’s judgment of conviction—even claims couched in the language of a
true Rule 60(b) motion—circumvents AEDPA’s requirement that a new claim
be dismissed unless it relies on either a new rule of constitutional law or newly
discovered facts.” Gonzalez, 545 U.S. at 531. The district court did not err in
determining that Robinson’s claim is a second or successive habeas petition. 18



       16The district court echoed this conclusion when it stated that “Robinson conceded he
had no evidence of a Sixth Amendment violation.”
       17 The cases cited by Robinson are inapposite. The decision in Ruiz v. Quarterman,
504 F.3d 523, 526 (5th Cir. 2007), stands for the unremarkable proposition that a denial of
“relief based on procedural default and failure to exhaust” may properly be reviewed using a
Rule 60(b) motion. Likewise, Balentine v. Thaler, 626 F.3d 842, 844–49 (5th Cir. 2010),
merely affirmed that the denial of relief on the ground that a claim is “unexhausted and
procedurally barred” may be challenged using the Rule 60(b) vehicle. Neither situation is
presented here. Importantly, the Ruiz court emphasized that “a Rule 60(b) motion is a
habeas claim when it presents a new claim for relief, or when it presents new evidence in
support of a claim already litigated, or when it asserts a change in the substantive law gov-
erning the claim, or when it attacks the federal court’s previous resolution of a claim on the
merits.” Ruiz, 504 F.3d at 526.
       18  Even if we were to find that Robinson’s impartial-jury claim did not constitute a
second or successive habeas petition, we would undoubtedly conclude that he fails to show
that, as a result of the denial of his discovery request, “‘extraordinary circumstances’ [exist
to] justify[] the reopening of [the] final judgment” under Rule 60(b)(6). Gonzalez, 545 U.S. at
535 (quoting Ackermann, 340 U.S. at 199); see also Mitchell, 261 F. App’x at 828–31.
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                                            D.
       Robinson raises a third ground for relief in his Rule 60(b) motion. He
maintains that the district court erred in finding that his challenge to the
denial of his motion to amend his original § 2255 petition to include a defective-
indictment claim was substantive in nature. Citing a number of intervening
Supreme Court precedents, including Weaver v. Massachusetts, 137 S. Ct. 1899
(2017), and Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), Robinson essen-
tially asserts that our determination in Robinson, 367 F.3d at 289—that the
government’s “failure to charge [the death penalty aggravating] factors in an
indictment did not contribute to [his] conviction or death sentence” was harm-
less error “beyond a reasonable doubt”—was flawed.

       Robinson maintains that Weaver, in particular, “casts serious doubt on
[our] denial of Robinson’s defective indictment claim in two significant ways.”
First, “the Weaver Court’s description of the three general categories of struc-
tural error[ 19] make clear that this Court’s requirement that [Robinson’s]
defective indictment claim affect the ‘fundamental fairness’ of his trial in order
to be structural was misguided.” Second, “Weaver left no doubt that this
Court’s application of the harmless error standard to Robinson’s preserved
defective indictment claim—a claim of structural error—was improper.”

       Robinson contends that Williams “establishes that the indictment error
at issue in Robinson is structural because it falls under Weaver’s rubric of an
error whose effects are ‘simply too hard to measure’” (quoting Weaver,



       19  The Weaver Court noted that structural error typically occurs in three instances.
First, “an error has been deemed structural in some instances if the right at issue is not
designed to protect the defendant from erroneous conviction but instead protects some other
interest.” Weaver, 137 S. Ct. at 1908. Second, “an error has been deemed structural if the
effects of the error are simply too hard to measure.” Id. And third, “an error has been deemed
structural if the error always results in fundamental unfairness.” Id.
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                                     No. 18-10732
                                     No. 18-70022
137 S. Ct. at 1908). 20    Ultimately, Robinson avers that “these opinions demon-
strate that the earlier denial of Robinson’s motion to amend is clearly erron-
eous; and the courts’ continued denial of Robinson’s right to litigate the impact
of the structural error inherent in his defective-indictment claim would work
a manifest injustice, especially since this is a death-penalty case.”

       In response, the government asserts that “Robinson’s Rule 60(b) motion
is a second or successive petition because it attacks the district court’s merit-
based ruling on his defective-indictment claim.” The government notes—as
did the district court as part of Robinson’s initial habeas proceedings—that
“Robinson had ‘previously claimed, both at his trial on the merits before [the
district court] and on direct appeal before . . . the Fifth Circuit, that the govern-
ment’s failure to submit the death penalty aggravating factors to the grand
jury violated the Indictment Clause of the Fifth Amendment.’” Consequently,
because we ruled otherwise on direct appeal, Robinson, 367 F.3d at 286–89,
the government maintains that Robinson “lost his defective-indictment claim
on the merits in a legal decision that was binding on the district court.” 21

       Importantly, the government highlights that Robinson did not appeal
the denial of his motion to amend but instead raises the issue now, several
years later, in a Rule 60(b) motion. Nonetheless, the government posits that
“[b]ecause Robinson’s Rule 60(b) motion attacks the district court’s merits-
based resolution of his proposed [defective-indictment] claim, it is a second or


       20 Robinson claims that McCoy v. Louisiana, 138 S. Ct. 1500, 1509 (2018), “undermines
[our] treatment of his [defective-indictment] claim as if it were unpreserved (and therefore
subject to harmless error analysis).”
       21 See also United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (emphasizing
that we do not consider, on collateral review, issues that were previously raised and decided
on direct appeal); United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980) (noting that we are
“not required on [§] 2255 motions to reconsider claims of error raised and disposed of on direct
appeal”).
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                                       No. 18-10732
                                       No. 18-70022
successive [§] 2255 motion.”

       At bottom, Robinson challenges not “some defect in the integrity of the
habeas proceedings,” Gonzalez, 545 U.S. at 532, but rather our previous resolu-
tion, on the merits, of his defective-indictment claim, Robinson, 367 F.3d
at 286–89. Attempting to disguise this claim, which was definitively resolved
on direct appeal nearly fifteen years ago, 22 Robinson submits that the district
court’s refusal to allow, on collateral review, an amendment to his habeas peti-
tion to include defective-indictment claim was a procedural defect in the integ-
rity of the habeas proceedings.

       The court’s refusal, however, was nothing of the sort. Looking to binding
circuit precedent, including Kadish and Jones, the district court concluded that
the claim was frivolous because its merits had already been determined on dir-
ect appeal. Consequently, the court properly denied amendment in the merits-
based decision.

       In its transfer order, the district court noted that “Robinson’s argument
is based solely on a purported change in substantive law regarding the defini-
tion of structural error which, he asserts, would alter the outcome of his appel-
late claim.” 23 AEDPA forecloses such a claim here because it potentially cir-



       22 Notably, Robinson does not assert that the intervening Supreme Court caselaw,
including Weaver and Williams, announced “a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h)(2). Consequently, because of the strict requirements for second or succes-
sive habeas petitions, Robinson attempts to bring this claim before the district court using a
Rule 60(b)(6) procedural vehicle. In any event, however, Weaver and Williams were only
changes in decisional law and “did not create an extraordinary circumstance and thus [can-
not] create[] a basis for [Robinson] to re-open his proceedings as he now wishes to do.”
Edwards, 865 F.3d at 208. Thus, even if Robinson’s second-or-successive claim were some-
how construed as properly before us in a Rule 60(b)(6) motion, it would still fail.
       23The court also noted that “[t]his is the type of end-run around the successive petition
rules that Gonzalez prohibits.”
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                               No. 18-10732
                               No. 18-70022
cumvents § 2255’s successive-petition requirements. 28 U.S.C. § 2255(h)(2);
see also id. § 2244. The district court did not err in determining that the motion
was, in actuality, a second or successive habeas petition.

                                         III.
      Because we conclude that Robinson’s Rule 60(b) motion is a second or
successive § 2255 motion, we also address his motion for leave to file a succes-
sive petition concerning his impartial-jury claim.

                                         A.
      “Before a second or successive [habeas] application . . . is filed in the dis-
trict court, the applicant shall move in the appropriate court of appeals for an
order authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Relevant here, we may authorize such a finding “only if the
movant makes a prima facie showing that his claims rely upon ‘a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.’” In re Jackson, 776 F.3d
292, 293 (5th Cir. 2015) (per curiam) (quoting 28 U.S.C. § 2255(h)(2)); see also
28 U.S.C. § 2244(b)(3)(C).

      “A ‘prima facie showing’ is ‘simply a sufficient showing of possible merit
to warrant a fuller exploration by the district court.’”            In re Simpson,
555 F. App’x 369, 371 (5th Cir. 2014) (per curiam) (quoting Reyes–Requena v.
United States, 243 F.3d 893, 899 (5th Cir. 2001)). That standard is satisfied
where the movant “put[s] forth minimally sufficient evidence to make a prima
facie case” such that “there is sufficient, albeit slight, merit in the [petitioner’s]
motion to warrant further exploration by the district court.” In re Hearn, 418
F.3d 444, 447–48 (5th Cir. 2005).



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                                  No. 18-10732
                                  No. 18-70022
                                       B.
      Robinson “seeks leave to file a successive § 2255 motion on the ground
that . . . [Pena-Rodriguez] . . . announced a new rule of constitutional law made
retroactively applicable on collateral review.” Simpson, 555 F. App’x at 370–
71. In Pena-Rodriguez, 137 S. Ct. at 861, the Court examined “whether there
is an exception to the no-impeachment rule when, after the jury is discharged,
a juror comes forward with compelling evidence that another juror made clear
and explicit statements indicating that racial animus was a significant moti-
vating factor in his or her vote to convict.” It held,
      [W]here a juror makes a clear statement that indicates he or she
      relied on racial stereotypes or animus to convict a criminal defen-
      dant, the Sixth Amendment requires that the no-impeachment
      rule give way in order to permit the trial court to consider the evi-
      dence of the juror’s statement and any resulting denial of the jury
      trial guarantee.
Id. at 869.
      The Pena-Rodriguez Court cautioned that “[n]ot every offhand comment
indicating racial bias or hostility will justify setting aside the no-impeachment
bar to allow further judicial inquiry.” Id. Consequently, “[f]or the inquiry to
proceed, there must be a showing that one or more jurors made statements
exhibiting overt racial bias that cast serious doubt on the fairness and impar-
tiality of the jury’s deliberations and resulting verdict.” Id. Such a statement
must “tend to show that racial animus was a significant motivating factor in
the juror’s vote to convict.” Id. Ultimately, “[w]hether that threshold showing
has been satisfied is a matter committed to the substantial discretion of the
trial court in light of all the circumstances, including the content and timing of
the alleged statements and the reliability of the proffered evidence.” Id.

                                        C.
      The Supreme Court has not expressly stated whether Pena-Rodriguez
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                                No. 18-10732
                                No. 18-70022
announced “a new rule of constitutional law, made retroactive to cases on col-
lateral review . . . that was previously unavailable.” 28 U.S.C. § 2255(h)(2).
Nonetheless, Robinson avers that Tharpe v. Sellers, 138 S. Ct. 545, 545–47
(2018) (per curiam), “indicate[s] that Pena-Rodriguez is indeed retroactively
applicable.”

      In response, the government notes that the per curiam opinion in Tharpe
“failed to mention Pena-Rodriguez at all.” The government also highlights lan-
guage in a dissenting opinion filed by three Justices in Tharpe, 138 S. Ct. at
547–53 (Thomas, J., dissenting). “[N]o reasonable jurist could argue that
Pena–Rodriguez applies retroactively on collateral review.” Id. at 551. Pena-
Rodriguez “established a new rule: The opinion states that it is answering a
question ‘left open’ by this Court’s earlier precedents.” Id. (quoting Pena-
Rodriguez, 137 S. Ct. at 867). Further, “[a] new rule does not apply retroac-
tively unless it is substantive or a ‘watershed rul[e] of criminal procedure.’” Id.
(quoting Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion)). Conse-
quently, “[s]ince Pena-Rodriguez permits a trial court ‘to consider [certain]
evidence,’ 137 S. Ct. at 869–70, and does not ‘alte[r] the range of conduct or the
class of persons that the law punishes,’ Schriro v. Summerlin, 542 U.S. 348,
353 (2004), it cannot be a substantive rule.” Id.

      Although Robinson’s contention that Pena-Rodriguez (in conjunction
with Tharpe) announced a new substantive rule that applies retroactively to
cases on collateral review is exceedingly doubtful, we need not reach that issue
here. Even if the rule announced in Pena-Rodriguez did apply retroactively to
cases on collateral review, Robinson fails to make the requisite prima facie
showing of possible merit necessary, under 28 U.S.C. §§ 2244(b)(3)(C) and
2255(h)(2), to warrant the certification of his second or successive habeas
motion. Over the past seventeen years, Robinson has proffered absolutely no
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                               No. 18-10732
                               No. 18-70022
evidence of juror misconduct or bias. 24 Accordingly, we decline, as did the
district court, Robinson’s invitation to join his “improper fishing expedition in
support of a hypothetical claim.” Because Robinson fails to “put forth mini-
mally sufficient evidence to make a prima facie case” and there is not “suffici-
ent . . . merit in [his] motion to warrant further exploration by the district
court,” we deny the motion for authorization to file a second or successive
§ 2255 petition. See Hearn, 418 F.3d at 447–48.

       In sum, the district court correctly construed Robinson’s Rule 60(b)(6)
motion as a second-or-successive petition for habeas relief. Because Robinson
fails to meet the requisite standard for certification of a second or successive
§ 2255 petition, we DENY the motion for authorization and DISMISS the
appeal for want of jurisdiction.




       24 Here, and unlike in Pena–Rodriguez, 137 S. Ct. at 869, there is no evidence of “a
juror mak[ing] a clear statement that indicates he or she relied on racial stereotypes or
animus to convict.” Robinson seemingly concedes as much when he claims that he “should
be permitted to conduct an investigation . . . to determine what role, if any, racial bias played
in his convictions and sentences” (emphasis added).
                                              20
