                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                              JANUARY 13, 2011
                                No. 11-10069                     JOHN LEY
                                                                  CLERK
                          ________________________

                    D.C. Docket No. 5:02-cv-00524-KOB-JEO

LEROY WHITE,

                                                            Petitioner - Appellant,

                                      versus

CHARLIE JONES,
Warden,
ATTORNEY GENERAL, STATE OF ALABAMA,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

                                                         Respondents - Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

Before EDMONDSON, HULL and WILSON, Circuit Judges.

BY THE COURT:

      Over 20 years ago, on September 20, 1989, Leroy White was sentenced to

death for the brutal murder of his wife. White is scheduled to be executed on
January 13, 2011 at 6:00 p.m. CST. On January 11, 2011, this Court denied

White’s motion for a stay of execution.

      White again asks this Court to temporarily stay his execution. White’s

second motion for a stay follows the district court’s denial of his Federal Rule of

Civil Procedure 59(e) motion to alter or amend the district court’s judgment.

White’s Rule 59(e) motion, in turn, follows the district court’s denial of White’s

Rule 60(b) motion to vacate and then reinstate the court’s June 26, 2009 judgment

denying White’s 28 U.S.C. § 2254 petition in order to start a new 30-day period

for filing a notice of appeal. On January 12, 2011 at 9:00 p.m., the district court

denied White’s Rule 59(e) motion and corresponding motion for a stay of

execution in a 9-page memorandum opinion.

      This Court likewise denies White’s second motion to stay his execution for

the reasons outlined in the district court’s order. In particular, we agree with the

district court that White has wholly failed to show a significant possibility of

success on the underlying federal habeas claim about which White seeks to file a

belated appeal. White has also failed to show a significant possibility of success

on his claim that the district court abused its discretion in denying his Rule 60(b)

motion, especially given his lack of due diligence.

      A request for a stay of execution is a request for equitable relief. Williams

                                          2
v. Allen, 496 F.3d 1210, 1212-13 (11th Cir. 2007); see also Hill v. McDonough,

547 U.S. 573, 584, 126 S. Ct. 2096, 2104 (2006). As we have said before, to

obtain the equitable relief of a stay, White must show a significant possibility of

success on the merits of the underlying claim in issue:

      “[T]he equitable principles at issue when inmates facing imminent
      execution delay in raising their . . . challenges are equally applicable to
      requests for both stays and injunctive relief” and are “not available as a
      matter of right.’ ” Williams v. Allen, 496 F.3d 1210, 1212 (11th Cir.
      2007) (quoting Grayson v. Allen, 491 F.3d 1318, 1322 (11th Cir. 2007)
      (“Grayson II”), cert. denied, --- U.S. ----, 128 S. Ct. 6, --- L. Ed. 2d ----,
      2007 WL 2086662, 76 USLW 3049 (Jul. 26, 2007)). Those equitable
      principles include (1) “sensitiv[ity] to the State’s strong interest in
      enforcing its criminal judgments without undue interference from the
      federal courts,” (2) the plaintiff’s satisfaction of “all of the requirements
      for a stay, including a showing of a significant possibility of success on
      the merits,” (3) the application of “a strong equitable presumption
      against the grant of a stay where the claim could have been brought at
      such a time as to allow consideration of the merits without requiring
      entry of a stay,” and (4) protection of the “States from dilatory or
      speculative suits.” Hill v. McDonough, --- U.S. ----, 126 S. Ct. 2096,
      2104, 165 L. Ed. 2d 44 (2006) (quoting Nelson v. Campbell, 541 U.S.
      637, 649-50, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004)). The
      strong interest of the State and the victims’s families is in “the timely
      enforcement of a sentence”, id. at 2104, which acquires “an added moral
      dimension” once post-trial proceedings finalize. Calderon v. Thompson,
      523 U.S. 538, 556, 118 S. Ct. 1489, 1501, 140 L. Ed. 2d 728 (1998).

Arthur v. King, 500 F.3d 1335, 1340 (11th Cir. 2007) (brackets in original).

White has not demonstrated a significant possibility of success on the merits of an

issue he would raise in a belated appeal even if his Rule 60(b) motion were



                                            3
granted. We agree with the district court that White “has offered nothing in his

present motion that gives this court pause in finding that he has not shown

entitlement to relief concerning any underlying substantive issue that might be

raised in a belated appeal.” Doc. 47 at 7.

      In addition, White has completely failed to show that he acted with any

diligence, much less due diligence, with regard to an appeal of the district court’s

June 26, 2009 denial of his federal habeas petition. White’s unjustifiable delay in

filing the second stay motion (and now, for the first time, supporting affidavits

within hours of his execution) must also be taken into account in deciding whether

he is entitled to equitable relief. In his just-filed affidavit, White admits that on

July 13, 2010, he received the State’s motion requesting an execution date, at

which point he became aware that the district court had denied his federal habeas

petition in June 2009. White has unjustifiably and inexcusably delayed filing his

second stay motion and, indeed, did not file any evidence until January 12, 2011,

only hours before the execution. More importantly, even the evidence White does

belatedly proffer shows that the last contact White had with his counsel was in

2006, when he was notified that one of his five attorneys had withdrawn, and there

is no evidence White made any attempt to contact any of his counsel from 2006 to

2010. Thus, White’s own belated affidavit reveals he was not diligent in keeping

                                           4
track of his federal case.

      Finally, we note that there is a serious question as to whether a Rule 60(b)

motion is an available vehicle to re-start the filing period for a notice of appeal.

See Jackson v. Crosby, 437 F.3d 1290, 1296 (11th Cir. 2006). White’s Rule 60(b)

motion, filed in the district court, does not ask for relief from the order of the

district court denying his § 2254 petition, but instead is an attempt to resuscitate

his time for filing a notice of appeal with this Court. White’s Rule 60(b) motion

requested the district court “to vacate and reinstate the judgment issued in this case

on June 26, 2009 for the purposes of commencing a new 30-day period for filing a

notice of appeal.” Doc. 33 at 1. In effect, White is attempting to gain a second

chance at a timely appeal through a Rule 60(b) motion, which circuit courts,

including this one, have disallowed. See Jackson, 437 F.3d at 1296; see also Dunn

v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002) (affirming district court’s denial of

Rule 60(b) motion where “[t]he sole basis for the motion was to vacate and

re-enter the judgment to allow [petitioner] to file a timely notice of appeal which

was not done initially because of the negligence of his attorneys,” and noting

petitioner could not use Rule 60(b) as a substitute for a timely appeal); Cavaliere

v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (quoting Burnside v.

Eastern Airlines, Inc., 519 F.2d 1127, 1128 (5th Cir. 1975) (“The well-recognized

                                           5
rule . . . precludes the use of a Rule 60(b) motion as a substitute for a proper and

timely appeal.”)). And even if Rule 60(b) is somehow a potentially available

vehicle, failure to comply with the statutory time limits for an appeal deprives the

district court of jurisdiction to grant an out-of-time appeal, especially when the

time for appeal expired more than a year ago. See Bowles v. Russell, 551 U.S.

205, 209-10, 127 S. Ct. 2360, 2363-64 (2007). For purposes of this stay request

only, however, we will assume arguendo that White somehow can file a Rule

60(b) motion to restart the appeal clock because White has not shown grounds for

obtaining any habeas relief on his underlying § 2254 claims in any event.

      This Court denies White’s motion for a stay of execution.

      MOTION DENIED.




                                          6
WILSON, Circuit Judge, dissenting:

       Our “success-on-the-merits inquiry here relates to the district court’s

rejection of [movant’s] Rule 60(b) motion.” See Workman v. Bell, 484 F.3d 837,

839 (6th Cir. 2007) (explaining that a court considering a petitioner’s motion for

stay of execution need consider only the likelihood of success of the petitioner’s

Rule 60(b) claim and not the likelihood of success of his underlying habeas

petition); cf. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 263, 98 S. Ct.

556, 560 (1978) (limiting the scope of appellate review from denial of a Rule

60(b) motion to whether the district court abuses its discretion, clarifying that “an

appeal from denial of Rule 60(b) relief does not bring up the underlying judgment

for review”). As an initial matter, I disagree with the Court that White must show

a substantial likelihood of success on the ultimate claim of whether he is entitled

to habeas relief.1 Rather, he should be required to show only a substantial

likelihood of success in obtaining the Rule 60(b) relief that he seeks.

       This Court may grant a stay of execution if the moving party shows that: (1)

he has a substantial likelihood of success on the merits; (2) he will suffer

       1
          The Court states that “White has wholly failed to show a significant possibility of
success on the underlying federal habeas claim about which White seeks to file a belated appeal.”
It follows this statement with “White has also failed to show a significant possibility of success
on his claim that the district court abused its discretion in denying his Rule 60(b) motion.” Yet
the focus of the Court’s opinion is the likelihood of White ultimately prevailing on his habeas
petition.

                                                7
irreparable injury unless the injunction issues; (3) the stay would not substantially

harm the other party; and (4) if issued, the injunction would not be adverse to the

public interest. See In re Holladay, 331 F.3d 1169, 1176 (11th Cir. 2003).

       A movant seeking relief under Rule 60(b)(6) must show extraordinary

circumstances to justify reopening a final judgment. Gonzalez v. Crosby, 545 U.S.

524, 535, 125 S. Ct. 2641, 2649 (2005). Furthermore, it must be shown that

“absent such relief, an extreme and unexpected hardship will result.” Griffin v.

Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (internal quotations

omitted). Failure to notify a death row inmate of an adverse ruling and eliminating

his chance for appeal to this Court constitutes the kind of “extraordinary

circumstances” that Rule 60(b)(6) exists to correct.2

       White’s contention—that former counsel ceased representation without

notifying him of the district court’s adverse ruling and thus prevented him from

filing an appeal—now has undeniable support. Most importantly, White’s

previous counsel admitted that he “was not aware of the rules that required [him]

to file a notice of appeal and therefore [he] failed to do so.” Further, he admits

that he “made a mistake by not vigilantly ensuring [White] was represented and


       2
         I believe that his current filing is most appropriately construed as a motion to re-
consider our previous ruling that denied his request for a temporary stay so that this Court could
review the district court’s denial of his Rule 60(b) motion.

                                                 8
ensuring that his appellate rights were preserved.”3 He further reveals that he does

not believe that he even spoke with White during the notice of appeal period. His

ignorance of the rules governing appeals can be explained by his lack of litigation

experience. As he explained, “I formerly practiced transactional tax and corporate

law . . . . I have never tried a case and have never been in a courtroom as an

attorney in my career.” With such admissions from counsel, I believe White must

be afforded the opportunity to have this Court hear an appeal from the denial of

his Rule 60(b) motion.

       Additional facts further support White’s claim of abandonment. First,

White’s affidavit clearly states that his lawyers abandoned him without notice.4

He did not know the district court denied relief until he received documentation

that the State was petitioning the Alabama Supreme Court to set an execution date.

Second, the procedural history of this case—White has exercised his right to direct

       3
          These facts were revealed in a recently submitted affidavit by White’s former counsel.
He states that, after one of his colleagues was disbarred, he “represented Mr. White by
[himself].”
       4
          Withdrawal from representation without client notice constitutes unethical conduct
under the Alabama Rules of Professional Conduct 1.16(d). The local rules for the Northern
District require client and court notice of withdraw. See United States District Court for the
Northern District of Alabama Local Rule 83.1(e). Unprofessional conduct by counsel during
federal post-conviction proceedings can rise to the level of extraordinary circumstances,
warranting relief from judgment under Rule 60(b). See Holland v. Florida, 130 S. Ct. 2549,
2563 (2010) (stating “at least sometimes, professional misconduct . . . could nonetheless amount
to egregious behavior and create an extraordinary circumstance that warrants equitable tolling” of
the Antiterrorism and Effective Death Penalty Act’s statute of limitations).

                                                9
appeal, state post-conviction appeal, and federal habeas review—lends credibility

to his contention that he would have sought further review. Third, upon receiving

notice that the State moved the Alabama Supreme Court to set an execution, White

sent a letter to that court, which it docketed as an opposition to the State’s motion.

Finally, the district court’s docket reveals that four of the five attorneys involved

never filed motions to withdraw. With the benefit of White’s affidavit and the

other facts discussed, a panel of this Court would likely conclude that the district

court erred in denying White’s Rule 60(b) motion.5 In light of these facts, I fail to

see how the district court can call White’s allegations “compelling” one day and,

after they have been substantiated, reject them the next.

       As to the other requirements that must be met to grant a stay, I “consider the

irreparability of the injury that petitioner will suffer in the absence of a stay to be

self-evident.” Holladay, 331 F.3d at 1177. When considering the harm that

would be suffered by the State, I agree that it maintains a significant interest in

enforcing its criminal judgments. I do not, however, believe that fleeting

inconvenience imposed upon the State during the temporary stay of execution

outweighs the fundamental harm that will be suffered by White should we deny


       5
         The district court held no evidentiary hearing in this case to examine the veracity of
White’s assertions. His claims are now supported by two affidavits and the other facts discussed
above.

                                               10
the stay. The State, as the people’s representative in criminal proceedings, must

yield to the overarching public interest of fairness in capital proceedings. Here,

White has been deprived of appellate review of his federal habeas petition. That

basic process is all he currently seeks.

      The opportunity to demonstrate that his post-conviction counsel abandoned

him on appeal and that this abandonment constitutes extraordinary circumstances

is within our power to give. As I have previously noted, “awarding an injunction

is an equitable decision. We have broad powers to fashion a remedy in equity.”

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1242 (11th Cir. 2005)

(Wilson, J., dissenting). White’s life hangs in the balance of our decision. Given

the equitable nature of our inquiry, the evidence before us is sufficient.

      Accordingly, I dissent.




                                           11
