     Case: 16-30279   Document: 00514641233     Page: 1   Date Filed: 09/13/2018




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

                                 No. 16-30279                      FILED
                                                           September 13, 2018
                                                              Lyle W. Cayce
CHRIS G. GILKERS,                                                  Clerk

             Petitioner–Appellant,

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

             Respondent–Appellee.



                Appeal from the United States District Court
                   for the Eastern District of Louisiana




Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Chris G. Gilkers, Louisiana prisoner # 442378, appeals the district
court’s denial of his Federal Rule of Civil Procedure 60(b) motion, which he
filed seeking relief from the district court’s judgment denying his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. The district court determined that
Gilkers’s Rule 60(b) motion should be construed as a successive § 2254 petition,
requiring authorization from this Court prior to filing as set forth in 28 U.S.C.
§ 2244(b)(3). Concluding that the district court did not err, we AFFIRM.
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                                       No. 16-30279
                                              I.
       On May 16, 2001, Gilkers was convicted by a jury of the second degree
murder of his wife and sentenced to life in prison. 1 The Louisiana Fifth Circuit
Court of Appeal affirmed his conviction and sentence, 2 and the Louisiana
Supreme Court denied his request for a writ of certiorari. 3 After he was denied
relief on direct appeal, Gilkers filed an application for postconviction relief in
state district court. The state district court denied the application in an order
providing reasons. Gilkers sought review of the district court’s decision by
filing a writ application to the Louisiana Fifth Circuit, which denied writs
without providing reasons. 4 Finally, also with no explanatory opinion, the
Louisiana Supreme Court denied Gilkers’s writ application seeking review of
the Louisiana Fifth Circuit’s decision denying postconviction relief. 5
       After his efforts to obtain state habeas relief proved unsuccessful,
Gilkers filed a § 2254 habeas petition in federal district court. Although the
magistrate judge initially determined that Gilkers’s § 2254 petition was time-
barred, the district court sustained Gilkers’s objection to the magistrate judge’s
report and recommendation and ordered that his § 2254 petition be considered
on the merits. Gilkers asserted four claims in his § 2254 petition: (1) the
evidence was insufficient to support his conviction for second degree murder,
(2) he was denied a fair trial when the State introduced “other crimes” evidence
during rebuttal without giving him proper notice, (3) his trial counsel rendered



       1 See State v. Gilkers, 01-1379, p. 3 (La. App. 5 Cir. 5/29/02); 820 So. 2d 1152, 1154.
       2 Id. at p. 21; 820 So. 2d at 1163.
       3 State v. Gilkers, 02-1947 (La. 6/6/03); 845 So. 2d 1087.
       4 State v. Gilkers, 03-1427 (La. App. 5 Cir. 12/15/03) (unpublished). The Louisiana

Fifth Circuit’s decision stated the following: “On the presentation, the application discloses
no error in the trial court’s ruling . . . on relator’s Application for Post Conviction Relief.
Accordingly, this writ application is denied.” Id. The decision listed the names of three
judges on the appellate court, but was signed by only one judge. Id.
       5 State ex rel. Gilkers v. State, 04-0217 (La. 1/14/05); 889 So. 2d 256.

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                                      No. 16-30279
ineffective assistance of counsel in numerous ways, and (4) Article 814 of the
Louisiana Code of Criminal Procedure was unconstitutional because it did not
include negligent homicide as a responsive verdict for second degree murder. 6
        The magistrate judge issued a thorough report addressing each of
Gilkers’s claims and recommended that his § 2254 petition be dismissed with
prejudice. Specifically, the magistrate judge determined that Gilkers’s first
claim, in which he challenged the sufficiency of the evidence, should be denied
as procedurally barred. 7 The magistrate judge further determined that the
remainder of Gilkers’s claims should be denied on the merits. 8 Although
Gilkers again objected to the magistrate judge’s report, the district court this
time denied Gilkers’s objections, adopted the magistrate judge’s report, and
issued a judgment denying Gilkers’s § 2254 petition with prejudice. 9
        Gilkers thereafter filed a motion for a certificate of appealability
(“COA”), which the district court denied. This Court also denied Gilkers’s
request for a COA. On October 1, 2007, the Supreme Court denied Gilkers’s
petition for a writ of certiorari seeking review of the denial of federal habeas
relief. 10
        In May of 2007, allegations came to light that, for several years, the
Louisiana Fifth Circuit had not been adequately reviewing pro se
postconviction writ applications. In a letter written shortly before his suicide,
the court’s former Central Staff Director, Jerrold Peterson, accused the court
of circumventing Louisiana’s state constitutional requirement of appellate
review by a three-judge panel with respect to such applications. Peterson
alleged that the court had instituted a policy of submitting pro se


        6 Gilkers v. Cain, No. 05-841, 2006 WL 1985969, at *9–23 (E.D. La. May 30, 2006).
        7 Id. at *9–11.
        8 Id. at *11–23.
        9 Id. at *1–3.
        10 Gilkers v. Cain, 552 U.S. 916 (2007).

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                                      No. 16-30279
postconviction writ applications to only one judge for decision. 11 The record
herein contains the minutes from an en banc meeting of the Louisiana Fifth
Circuit adopting such a policy, which was in effect from February 1994, until
Peterson’s death in May 2007. 12
        After Peterson’s allegations were made public, many affected prisoners
sought relief from the Louisiana Supreme Court, arguing that their rights had
been infringed by this procedure. 13 In September 2008, in an attempt to rectify
matters, the Louisiana Fifth Circuit adopted an en banc resolution
recommending that the Louisiana Supreme Court transfer all writ
applications complaining of such inadequate review to it for consideration by a
three-judge panel. 14 In State v. Cordero, the Louisiana Supreme Court agreed
with the recommendation and transferred all such pending writ applications
to the Louisiana Fifth Circuit. 15
        Gilkers’s writ application complaining of inadequate review was among
those transferred by the Louisiana Supreme Court in Cordero to the Louisiana
Fifth Circuit. 16 A three-judge panel thereafter reconsidered Gilkers’s pro se
postconviction writ application and concluded, providing reasons, that “there
was no error in [the] Court’s previous ruling” denying Gilkers postconviction
relief. 17   The Louisiana Supreme Court denied Gilkers’s subsequent writ
application seeking review of that ruling. 18


        11See Severin v. Par. of Jefferson, 357 F. App’x 601, 603 (5th Cir. 2009) (providing
factual background).
       12 The minutes from the en banc meeting of February 8, 1994, provide: “Effective

immediately, Judge Dufresne will handle all pro se writ applications and will not be included
in the handling of regular writ applications. Special or unusual pro se applications will be
submitted to a regular panel.”
       13 See State v. Cordero, 2008-1717, pp. 1–2 (La. 10/3/08); 993 So. 2d 203, 204.
       14 See id. at p. 2; 993 So. 2d at 204–05.
       15 Id. at pp. 2–3; 993 So. 2d at 205–06.
       16 Id. at p. 10; 993 So. 2d at 210.
       17 State v. Gilkers, 08-927 (La. App. 5 Cir. 10/18/08) (unpublished).
       18 State ex rel. Gilkers v. State, 2010-0599 (La. 2/25/11); 57 So. 3d 1029.

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                                     No. 16-30279
      Gilkers then returned to federal district court. He filed another § 2254
petition reasserting the same claims presented in his original § 2254 petition.
The district court transferred Gilkers’s petition to this Court to determine
whether he should be authorized under 28 U.S.C. § 2244(b)(3) to file a second
or successive habeas petition. Relying on Magwood v. Patterson, 19 Gilkers
argued that his petition was not a second or successive habeas petition within
the meaning of § 2244 because an intervening state court judgment (the
Louisiana Fifth Circuit’s decision upon reconsideration of his postconviction
writ application) had been issued since the federal district court denied his first
§ 2254 petition.    In Magwood, the Supreme Court held that when a new
sentence has been imposed, a second § 2254 petition challenging the new
sentence is not successive under § 2244. 20 However, because the new state
court judgment in Gilkers’s case did not impose a new sentence, but instead
reaffirmed the denial of postconviction relief, this Court determined that
Gilkers’s   proposed     § 2254    petition      was   successive     and    denied     him
authorization to file it in the district court. 21
      Gilkers next filed a Rule 60(b) motion seeking relief from the district
court’s judgment denying his original § 2254 petition.                Relying again on
Magwood, he argued that any prior habeas decision should be found “null and
void” because the claims presented in his original § 2254 petition were not
properly exhausted based on inadequate review by the state intermediate
appellate court. He asserted that the “new judgment” issued by the Louisiana
Fifth Circuit upon reconsideration of his state postconviction application was
the last “reasoned” state court judgment and that these circumstances
warranted the reopening of his § 2254 proceeding under Rule 60(b).                      The


      19 561 U.S. 320 (2010).
      20 Id. at 342.
      21 In re Gilkers, No. 11-30451 (5th Cir. Aug. 31, 2011) (per curiam) (unpublished).

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                                      No. 16-30279
district court concluded that the motion was an unauthorized successive § 2254
petition, denied the motion, and denied Gilkers a COA. A judge of this Court
denied Gilkers’s ensuing COA motion. 22
       Approximately three years later, Gilkers filed a second Rule 60(b) motion
(at issue in this appeal), again seeking to reopen his original § 2254 proceeding.
Gilkers argued that there was “a defect in the integrity of his prior federal
habeas proceedings due to the series of events giving rise to Cordero.” He
asserted that he was entitled to relief under Rule 60(b)(5) because the
judgment denying him § 2254 relief “[wa]s based upon” the Louisiana Fifth
Circuit’s initial decision which “ha[d] been vacated and reversed” as a result of
Cordero.     Gilkers also contended that he was entitled to relief under
Rule 60(b)(6) because of the “extraordinary circumstances” surrounding the
Cordero decision. Gilkers additionally pointed out that a judge of this Court
had recently granted a COA from the denial of a Rule 60(b) motion in
Schexnayder v. Cain, No. 13-30981 (5th Cir. July 18, 2014), in which the § 2254
petitioner also asserted arguments based on Cordero.
       The district court noted that this Court had granted a COA in
Schexnayder but had not yet rendered a decision. Because this Court had
previously denied Gilkers a COA with respect to his arguments based on
Cordero, the district court determined that Gilkers’s second Rule 60(b) motion
should again be construed as an unauthorized successive § 2254 petition and
denied. The district court also denied a COA.




       22Gilkers v. Cain, No. 12-30360 (5th Cir. Sept. 6, 2012) (unpublished). The respondent
has not argued that the law-of-the-case doctrine applies in this matter such that our denial
of a COA with respect to Gilkers’s first Rule 60(b) motion should control our decision here.
Moreover, it is doubtful that the doctrine, which is discretionary in the first instance, is
applicable to a one-judge order denying a COA. See Propes v. Quarterman, 573 F.3d 225, 228
(5th Cir. 2009) (noting that law-of-the-case principles do not apply to initial decisions of
appellate jurisdiction made by a motions panel).
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                                     No. 16-30279
      Shortly after the district court denied Gilkers a COA, this Court issued
its non-precedential decision in Schexnayder. 23 This Court determined that
the petitioner’s Rule 60(b) motion was a “true Rule 60(b) motion entitled to be
decided” by the district court “[b]ecause the federal court ha[d] not considered
constitutional claims related to the decisions of the Louisiana courts after the
Louisiana Supreme Court’s judgment in State v. Cordero.” 24                  This Court
consequently vacated the district court’s judgment and remanded the matter. 25
      Relying on Schexnayder, Gilkers moved this Court for a COA. A judge
of this Court granted a COA “on the issue whether the district court erred by
determining that Gilkers’s Rule 60(b)(5),(6) motion was properly construed as
an unauthorized successive § 2254 application.” 26
                                           II.
      The district court’s determination that a purported Rule 60(b) motion
constitutes a successive § 2254 habeas petition is reviewed de novo. 27
Rule 60(b) allows a party to seek relief from a final judgment for the following
reasons:
             (1) mistake, inadvertence, surprise, or excusable neglect;
             (2) newly discovered evidence that, with reasonable
             diligence, could not have been discovered in time to move for
             a new trial under Rule 59(b);
             (3) fraud (whether previously called intrinsic or extrinsic),
             misrepresentation, or misconduct by an opposing party;
             (4) the judgment is void;
             (5) the judgment has been satisfied, released, or discharged;
             it is based on an earlier judgment that has been reversed or


      23 643 F. App’x 417 (5th Cir. 2016).
      24 Id.
      25 Id.
      26 Gilkers v. Vannoy, No. 16-30279 (5th Cir. May 11, 2017) (unpublished).
      27 In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014).

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                                    No. 16-30279
            vacated; or applying it prospectively is no longer equitable;
            or
            (6) any other reason that justifies relief. 28
Under Rule 12 of the Rules Governing § 2254 cases, however, Rule 60(b), like
the rest of the Federal Rules of Civil Procedure, may be applied only “to the
extent that [it is] not inconsistent with any statutory provisions or [the] rules
[governing § 2254 cases].” 29
                                          A.
      In Gonzalez v. Crosby, 30 the Supreme Court addressed the interplay
between Rule 60(b) and the statutory provisions applicable to § 2254
proceedings. As explained by the Court, Rule 60(b) motions are subject to
additional restrictions that apply to second or successive § 2254 petitions
under the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at
28 U.S.C. § 2244(b). 31 Specifically, § 2244(b) imposes three requirements on
second or successive § 2254 petitions. First, under § 2244(b)(1), “any claim that
has already been adjudicated in a previous petition must be dismissed.” 32
Second, under § 2244(b)(2), “any claim that has not already been adjudicated
must be dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual
innocence.” 33 Third, under § 2244(b)(3), “before the district court may accept a
successive petition for filing, the court of appeals must determine that it
presents a claim not previously raised that is sufficient to meet § 2244(b)(2)’s
new-rule or actual-innocence provisions.” 34


      28 FED. R. CIV. P. 60(b)(1)–(6).
      29 RULES GOVERNING § 2254 CASES, Rule 12, 28 U.S.C.A. foll. § 2254.
      30 545 U.S. 524 (2005).
      31 Id. at 529–34.
      32 Id. at 529–30.
      33 Id. at 530.
      34 Id.

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                                        No. 16-30279
       To ensure that habeas petitioners do not circumvent these statutory
requirements by filing Rule 60(b) motions that are the functional equivalent of
unauthorized successive § 2254 petitions, the Supreme Court set forth several
guidelines in Gonzalez for determining the circumstances under which a
district court may properly consider a Rule 60(b) motion in a § 2254 habeas
proceeding. 35 The Court instructed that when a Rule 60(b) motion “seeks to
add a new ground for relief,” it is equivalent to a successive § 2254 petition. 36
A Rule 60(b) motion also amounts to a successive § 2254 petition “if it attacks
the federal court’s previous resolution of a claim on the merits, since alleging
that the court erred in denying habeas relief on the merits is effectively
indistinguishable from alleging that the movant is, under the substantive
provisions of the statutes, entitled to habeas relief.” 37 The Court explained
that what it meant by “on the merits” was “a determination that there exist or
do not exist grounds entitling a petitioner to habeas corpus relief under 28
U.S.C. §§ 2254(a) and (d).” 38
       The Court additionally instructed that, in contrast, “when a Rule 60(b)
motion attacks, not the substance of the federal court’s resolution of a claim on
the merits, but some defect in the integrity of the federal habeas proceedings,”
then the district court may properly consider the motion as a Rule 60(b)




       35  Id. at 532–33.
       36  Id. at 532.
        37 Id. (footnote omitted).
        38 Id. at 532 n.4. Section 2254(a) provides: “The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States.”
Section 2254(d) prohibits the granting of habeas relief “with respect to any claim that was
adjudicated on the merits in the State court proceedings unless the adjudication of the claim”
was “contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
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motion. 39 The Court specified that “[f]raud on the federal habeas court [was]
one example of such a defect.” 40 Additionally, “when [the movant] merely
asserts that a previous ruling which precluded a merits determination was in
error—for example, a denial of such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar,” then the district court may properly
consider the Rule 60(b) motion. 41
       Distilling the guidelines set forth in Gonzalez, we conclude that 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. If the purported Rule 60(b) motion
satisfies one of these circumstances, the district court may then properly
consider the motion under Rule 60(b) and determine whether it has merit
under the specific subsection of Rule 60(b) invoked by the movant. 42
       In his purported Rule 60(b) motion, Gilkers asserted that there was “a
defect in the integrity of his prior federal habeas proceeding due to the series
of events giving rise to Cordero.” 43 On appeal, Gilkers reasserts that there was
a defect in the integrity of the federal proceeding because the district court
“afforded the required deference to defective state court judgments.”                      He



       39 Gonzalez, 545 U.S. at 532.
       40 Id. at 532 n.5.
       41 Id. at 532 n.4.
       42 As reflected in Gonzalez, the Court first determined that the motion could be

considered under Rule 60(b) because it attacked a procedural ruling which precluded a merits
determination and then addressed the merits of the motion under subsection 6 of Rule 60(b),
which was the only subsection invoked by the movant. Id. at 536–37.
       43 In his motion, Gilkers conflated the Gonzalez inquiry with the merits of a Rule 60(b)

motion. Specifically, Gilkers asserted that the district court’s judgment denying his § 2254
petition was “defective,” warranting relief under Rule 60(b)(5), because that judgment was
“based upon state court judgments that have [effectively] been vacated or reversed” by
Cordero. Gilkers was first required to meet the Gonzalez inquiry before the merits of his
motion could be considered under Rule 60(b).
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contends that the district court’s judgment denying him § 2254 relief “was the
end product or result of the defective practices utilized by the Louisiana Fifth
Circuit.” As described below, however, while Gilkers’s arguments based on
Cordero demonstrate a defect in the integrity of his state postconviction
proceedings, they do not demonstrate such a defect with respect to his § 2254
proceeding. Specifically, under proper AEDPA deference, the Louisiana Fifth
Circuit’s initial decision denying Gilkers postconviction relief had no impact on
the district court’s judgment denying Gilkers § 2254 relief and, thus, did not
compromise the integrity of his federal habeas proceeding.
      The Supreme Court recently explained in its decision in Wilson v. Sellers
that applying the AEDPA deferential standard found in § 2254(d) “requires the
federal habeas court to ‘train its attention on the particular reasons—both
legal and factual—why state courts rejected a state prisoner’s federal claims,’
and to give appropriate deference to that decision.” 44 When the relevant state
court decision on the merits does not provide reasons, “the federal court should
‘look through’ the unexplained decision to the last related state-court decision
that does provide a relevant rationale.” 45 The federal habeas court “should
then presume that the unexplained decision adopted the same reasoning.” 46
      The magistrate judge and district court properly applied this approach
when reviewing Gilkers’s § 2254 claims. Specifically, as to Gilkers’s first claim
of insufficiency of the evidence, the magistrate judge “looked through” the
unexplained decisions of the Louisiana Supreme Court and Louisiana Fifth
Circuit to the state trial court’s decision denying Gilkers’s postconviction
application. 47   The state trial court determined that the claim was in



      44 138 S. Ct. 1188, 1191–92 (2018) (citations omitted).
      45 Id. at 1192.
      46 Id.
      47 Gilkers, 2006 WL 1985969, at *9.

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procedural default under Article 930.4(c) of the Louisiana Code of Criminal
Procedure because Gilkers could have raised the claim on direct appeal, but
did not. 48 The magistrate judge and district court furthermore determined
that Article 930.4(c) was an independent and adequate state procedural bar
and that Gilkers was unable to overcome it. 49
      As to Gilkers’s second claim, that he was denied a fair trial when the
State introduced “other crimes” evidence during rebuttal without giving him
proper notice, the magistrate judge again “looked through” the unexplained
decisions of the Louisiana Supreme Court and Louisiana Fifth Circuit to the
state trial court’s decision denying Gilkers’s postconviction application. The
magistrate judge noted that the state trial court had refused to consider this
postconviction claim as repetitive of matters considered by the Louisiana Fifth
Circuit on direct appeal. 50    The magistrate judge then proceeded to “look
through” the state trial court’s decision denying postconviction relief to the
Louisiana Fifth Circuit’s decision affirming Gilkers’s conviction on direct
appeal. 51 The magistrate judge and district court determined that Gilkers’s
claim was “without merit” and that “[t]he denial of relief on this claim was not
contrary to or involved an unreasonable application of Supreme Court
precedent.” 52
      As to Gilkers’s third claim of ineffective assistance of counsel, the
magistrate judge again “looked through” the unexplained decisions of the
Louisiana Supreme Court and Louisiana Fifth Circuit to the state trial court’s
decision denying postconviction relief. 53 The state trial court held that the



      48 Id.
      49 Id. at *2, *9–11.
      50 Id. at *12.
      51 Id.
      52 Id. at *15.
      53 Id. at *16.

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complained of acts were “discretionary trial tactics.” 54 The magistrate judge,
after thoroughly examining the trial transcript, and the district court
determined that Gilkers’s ineffective assistance claims were without merit and
that the denial of relief was not contrary to or involved an unreasonable
application of the Supreme Court’s precedent in Strickland v. Washington, 466
U.S. 668 (1984). 55
      As to Gilkers’s final claim, that Article 814 of the Louisiana Code of
Criminal Procedure is unconstitutional because it does not include negligent
homicide as a responsive verdict for second degree murder, the magistrate
judge noted that the state trial court also refused to consider this claim on
postconviction review because it had already been addressed by the Louisiana
Fifth Circuit on direct appeal. 56 The magistrate judge again “looked through”
the state trial court’s decision to the Louisiana Fifth Circuit’s decision on direct
appeal. 57   After examining the trial transcript, the magistrate judge and
district court determined that Gilkers was not denied a fair trial and that the
denial of postconviction relief on this issue was not contrary to or an
unreasonable application of Supreme Court precedent. 58
      The magistrate judge and district court’s analysis of Gilkers’s § 2254
claims was consistent with the approach recently espoused by the Supreme
Court in Wilson. The analysis shows that the outcome of the proper application
of the AEDPA deferential standard set forth in § 2254(d) was that the
Louisiana Fifth Circuit’s initial decision denying postconviction relief, which
was the decision at issue in Cordero, had no impact on the district court’s
decision denying Gilkers § 2254 relief. Therefore, Gilkers’s argument that the


      54 Id.
      55 Id. at *17–21.
      56 Id. at *21.
      57 Id.
      58 Id. at *21–23.

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                                       No. 16-30279
Cordero issue compromised the integrity of his § 2254 proceeding is without
merit, and the district court properly refused to consider Gilkers’s motion
under Rule 60(b). 59
       Furthermore, Gilkers’s motion is fundamentally substantive. Gilkers
asserts that the district court’s judgment denying § 2254 relief should be set
aside, and his claims reviewed again, essentially because of the infirmities in
his state court habeas proceedings. We specifically held in our decision in In
re Gentras 60 that the circumstances leading to the Cordero decision do not
constitute grounds for relief under § 2254. We have also refused to stay habeas
proceedings pending the outcome of the Louisiana Fifth Circuit’s re-review of
state postconviction applications affected by Cordero. 61 We rule consistent
with this precedent that Gilkers’s motion based on Cordero could not be
properly considered under Rule 60(b) and instead was properly construed as
an unauthorized successive § 2254 petition.
       Finally, even if Gilkers’s motion satisfied the guidelines set forth in
Gonzalez for proper consideration as a Rule 60(b) motion, Gilkers would not be
entitled to any relief under either Rule 60(b)(5) or Rule 60(b)(6). Because, as
detailed above, the district court’s judgment was not “based on” the Louisiana
Fifth Circuit’s initial decision denying Gilkers postconviction relief,
Rule 60(b)(5) is inapplicable.         Although this Court cannot deny that the
circumstances leading to Cordero were unusual, Gilkers cannot show that



       59 We respectfully decline to follow the bare holding of this Court’s unpublished, one-
paragraph decision in Schexnayder. That case provided no description of the underlying facts
or procedural posture and no analysis under Gonzalez, perhaps because the State conceded
during oral argument that the motion at issue in that case was properly construed as a
Rule 60(b) motion. The State does not so concede in this matter and, in any event, we
conclude that, in this case, Gilkers’s motion is not a “true” Rule 60(b) motion.
       60 666 F.3d 910, 911 (5th Cir. 2012) (“Infirmities in state postconviction proceedings

are not grounds for relief under § 2254.”).
       61 Evans v. Cain, 577 F.3d 620, 623–24 (5th Cir. 2009).

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these circumstances were “extraordinary” 62 under Rule 60(b)(6) to justify the
reopening of the district court’s judgment denying him § 2254 relief. We note
that when the Louisiana Fifth Circuit reconsidered Gilkers’s postconviction
writ application pursuant to Cordero, it determined that there was no error in
its prior ruling and that Gilkers was not entitled to any relief. Moreover,
although the Louisiana Fifth Circuit provided reasons for its denial of
postconviction relief upon reconsideration, Gilkers does not argue, and cannot
show, that any of those reasons would have changed the district court’s
decision denying Gilkers’s § 2254 claims. 63
       Based on the foregoing, the district court’s judgment denying Gilkers’s
Rule 60(b) motion is AFFIRMED.




       62 See Gonzalez, 545 U.S. at 535–36.
       63  Moreover, the Louisiana Fifth Circuit’s decision upon reconsideration simply
provided more reasons to which the district court could defer for denying Gilkers federal
habeas relief. As stated above, Gilkers’s motion in the end seeks another review of the merits
of his § 2254 claims, but this time having the district court “look through” to the Louisiana
Fifth Circuit’s decision upon reconsideration of his state postconviction application. Under
Gonzalez, such motion is equivalent to a successive § 2254 petition requiring authorization
from this Court.
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                                  No. 16-30279
STUART KYLE DUNCAN, Circuit Judge, concurring in part and concurring
in the judgment:

      I respectfully concur in Judge Davis’s well-reasoned opinion, but only to
the extent it concludes that Gilkers’s purported Rule 60(b) motion does not
actually attack a “defect in the integrity of [his] federal habeas proceedings,”
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), and is thus subject to the limits
on successive habeas petitions. Id. at 529-30; 28 U.S.C. § 2244(b)(1)-(3). I would
stop there because that holding is enough to affirm the district court. See, e.g.,
United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013) (limiting decision
to “only analyz[ing] this particular Rule 60(b) motion” under Gonzalez). I write
separately to express my view that the majority holding does not foreclose a
genuine Rule 60(b) motion in a case presenting a different procedural posture
from this one.
      This case arises from a breakdown in Louisiana’s post-conviction process.
As the majority recounts, for over a decade (from February 1994 to May 2007)
the Louisiana Fifth Circuit evidently followed a policy of submitting pro se
post-conviction applications to one judge, violating a state constitutional
provision requiring appeals to be decided by “panels of at least three judges.”
LA. CONST. art. V, § 8(A), (B); see generally Severin v. Parish of Jefferson, 357
F. App’x 601, 603 (5th Cir. 2009); State v. Cordero, 2008-1717 (La. 10/3/08), 993
So.2d 203 (providing background). When this systemic flaw came to light, the
Louisiana Supreme Court adopted the circuit’s unanimous resolution to
remand “several hundred [post-conviction] applications” for random allotment
to three-judge panels, in accordance with “internal procedures designed to
promote completely independent review” of the affected cases. Cordero, 993
So.2d at 204, 205; see also id. at 206 (resolution providing panels be drawn
from judges “who incidentally have had no hand in the process by which this
court earlier handled these multiple applicants’ earlier writs in this court”).
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                                 No. 16-30279
      Gilkers’s application was among those remanded to the circuit for
“completely independent review” in 2008. Id. at 210. By that time, however, a
federal district court had already denied Gilkers’s habeas petition two years
earlier in 2006. It had done so by “looking through” to the last state decision
giving reasons for denying Gilkers’s claims—namely, the state trial court. See
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (requiring federal habeas court
to “‘look through’ the unexplained decision to the last related state-court
decision that … provide[s] a relevant rationale” for denying claims). The
federal court would not have deferred to the state circuit decision because the
first time around—i.e., when review was by an inadequate one-judge panel—
that “court” gave no reasons. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
But on re-review following the 2008 remand, the three-judge panel did give
reasons, albeit ones that tracked the state trial court’s original decision
denying Gilkers’s application.
      Given this procedural morass, Gilkers’s Rule 60(b) motion makes some
sense: he wants his 2006 federal habeas judgment re-opened because one of its
predicate state decisions has since undergone “completely independent review”
by a state court, Cordero, 993 So.2d at 205, and has now been replaced with a
new decision. See FED. R. CIV. P. 60(b)(5) (permitting court to relieve a party
from a final judgment because “the judgment … is based on an earlier
judgment that has been reversed or vacated”). Despite that surface
attractiveness, however, I agree with the majority that Gilkers’s motion should
be treated as a successive habeas petition.
      While recognizing that “Rule 60(b) has an unquestionably valid role to
play in habeas cases,” Gonzalez, 545 U.S. at 534, the Supreme Court has
instructed lower courts to rigorously separate genuine Rule 60(b) motions from
disguised successive habeas applications. As our court has explained, “[i]f …
the motion challenges ‘not the substance of the federal court’s resolution of a
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                                        No. 16-30279
claim on the merits, but some defect in the integrity of the federal habeas
proceedings,’ then a Rule 60(b) motion is proper.” In re Coleman, 768 F.3d 367,
371 (5th Cir. 2014) (quoting Gonzalez, 545 U.S. at 532). 1 Applying that
standard, I focus (as the majority does) on two key procedural facts: (1)
Gilkers’s 2006 federal habeas decision did not defer to the flawed state circuit
decision but instead to the state trial court decision; and (2) on re-review, the
properly constituted state circuit panel did not give any new reasons casting
doubt on the previous resolution of Gilkers’s habeas claims. In light of that, it
is plausible to conclude that Gilkers’s motion does not actually attack a “defect
in the integrity of [his] federal habeas proceedings,” id., because the defect he
identifies did not infiltrate the disposition of his federal habeas petition. See,
e.g., Post v. Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005) (a motion may be
considered a successive habeas petition even if “the motion itself does not
attack the district court’s substantive analysis of [the habeas] claims, but,
instead, purports to raise a defect in the integrity of the habeas proceedings”).
Thus, his motion is “in substance a successive habeas petition and should be
treated accordingly.” Gonzalez, 545 U.S. at 531. 2


       1 See also, e.g., Clark v. Davis, 850 F.3d 770, 779-80 (5th Cir.), cert. denied, 138 S. Ct.
358 (2017) (“To the extent that [petitioner’s] Rule 60(b)(6) motion attacks not the substance
of the federal court’s resolution of the claim on the merits, but asserts that [his attorney] had
a conflict of interest that resulted in a defect in the integrity of the proceedings, the motion
is not an impermissible successive petition.”); and see generally RANDY HERTZ & JAMES S.
LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE, 7th Edition, § 34.3, at 2089
(observing Gonzalez “adopt[ed] the more moderate position that the classification [as a
successive habeas petition] may or may not apply depending on the type of relief that the
Rule 60(b) motion seeks”).
       2 I understand that to be the majority’s holding and I concur in it. I respectfully
decline, however, to join the majority’s discussion of whether Gilkers’s motion is
“fundamentally substantive.” Asking whether a motion is procedural or substantive simply
restates the Gonzalez inquiry—which, as our court has explained, distinguishes genuine from
sham Rule 60(b) motions “along the lines of substance and procedure.” Coleman, 768 F.3d at
371. In its discussion, the majority also points out that our court has recognized that “the
circumstances leading to the Cordero decision do not constitute grounds for relief under
§ 2254.” See In re Gentras, 666 F.3d 910, 911 (5th Cir. 2009). That is true, but the grounds
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                                       No. 16-30279
       A different question would be presented, in my view, if a prisoner’s
federal habeas court actually deferred to a state decision that was
subsequently vacated and replaced with a substantively different decision. A
Rule 60(b) motion premised on that scenario may well qualify as an “attack[ ]
… [on] some defect in the integrity of the federal habeas proceedings”
themselves, id. at 532 (emphasis added), and not merely on a flaw confined to
the state proceedings. After all, deference to state court adjudication is in
AEDPA’s DNA: “Section 2254(d) is part of the basic structure of federal habeas
jurisdiction, designed to confirm that state courts are the principal forum for
asserting constitutional challenges to state convictions.” Harrington v. Richter,
562 U.S. 86, 103 (2011). The Supreme Court has not exhaustively defined what
it meant by a “defect in the integrity of the federal habeas proceedings”—it
only identified “fraud on the federal habeas court [a]s one example of such a
defect.” Gonzalez, 545 U.S. at 532 & n.5 (emphasis added). It hardly seems a
stretch to conclude that the integrity of a federal proceeding would also be
compromised if a federal habeas court actually deferred to state court decision
that turned out to be a sham. I do not read the majority opinion as attempting
to answer this different question, which in any event is not presented in
Gilkers’s case.
       I respectfully concur.




for re-opening a habeas judgment under Rule 60(b) are distinct from the grounds for relief
under § 2254. See, e.g., Gonzalez, 545 U.S. at 534 (explaining that “Rule 60(b) motions in
§ 2254 cases” that are confined “to a nonmerits aspect of the first federal habeas proceeding”
are not “inconsistent with AEDPA”) (internal quotation marks omitted). The fact that one
may have valid grounds for reopening a habeas judgment means only that the federal court
must reconsider the merits, not that the petitioner will win on the merits.
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