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

                                                                            FILED
                                                                         February 9, 2009

                                       No. 08-70026                   Charles R. Fulbruge III
                                                                              Clerk

DALE DEVON SCHEANETTE

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Institutional Division

                                                  Respondent-Appellee



                  Appeals from the United States District Court
                       For the Northern District of Texas
                              Fort Worth Division


Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Dale Devon Scheanette (“Scheanette”) filed this pro se petition for a
Certificate of Appealability (“COA”) from the district court’s denial of his Rule
60(b) motions and from the district court’s judgments and orders dated April 10,
2006. This court previously denied Scheanette’s petition for COA from the
district court’s April 10, 2006 order. Scheanette v. Quarterman, 482 F.3d 815 (5th
Cir. 2007). We will not revisit that decision. Scheanette now seeks to appeal


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-70026

the district court’s denial of several motions for reconsideration of its judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and to raise
additional habeas claims. He also seeks a stay of his upcoming execution, set for
February 10, 2009. For the reasons set forth below, we deny all requested relief.
                                        I.
      The facts of Scheanette’s crime and the procedural history of this case up
to the point of our last review are set forth in our prior opinion and will not be
repeated here. On March 10, 2008, almost a year after this court denied
Scheanette a COA, he filed a pro se motion under Fed. R. Civ. P. 60(b) seeking
relief from the district court’s April 10, 2006 judgment denying him habeas
relief. The district court denied that motion on March 19, 2008. Scheanette filed
a second motion for relief from judgment on April 16, 2008, which the district
court denied on April 18, 2008.      Scheanette’s third motion for relief from
judgment was filed on May 22, 2008 and denied on May 23, 2008. On June 3,
2008, Scheanette filed a notice of appeal from the denial of his Rule 60(b)
motions and from all judgments and orders entered by the district court, and a
request for COA. The district court denied the request for COA. Scheanette
filed additional motions for relief from judgment on June 5, 2008 and July 2,
2008, which were denied on June 9, 2008 and July 9, 2008. He then filed a
notice of appeal and request for COA in the district court. The district court
again denied COA on July 15, 2008. Scheanette filed another notice of appeal
from the district court order dated July 9, 2008.
                                       II.
      Contrary to Scheanette’s seventh claim of error, Fifth Circuit law is clear
that when a petitioner appeals the denial of a Rule 60(b) motion seeking relief
from judgment, he must first obtain a COA. Canales v. Quarterman, 507 F.3d
884, 887-88 (5th Cir. 2007). A COA will only issue if Scheanette makes a
substantial showing of the denial of a constitutional right. 28 U.S.C. §2253(c)(2).


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To meet this standard, the petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(internal quotation marks omitted).
      Where the district court dismisses the application based on procedural
grounds without reaching the prisoner’s underlying constitutional claims, a COA
should issue if the petitioner demonstrates that reasonable jurists would find it
debatable whether the district court was correct in its procedural ruling and that
reasonable jurists would find it debatable whether the petition states a valid
claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473,
478 (2000).1
                                        III.
      Scheanette filed five motions under Rule 60(b). As repeated before this
court, Scheanette asserted the following grounds for relief in those motions:
1.    The district judge was disqualified from presiding over the case because
      he acted as counsel to Scheanette.
2.    The district court’s final judgment is void because it lacked subject matter
      jurisdiction over the federal petition filed by Scheanette’s habeas counsel,
      Richard Alley, because Scheanette did not sign or authorize the petition.




      1
        In Scheanette’s sixth claim of error, he argues that the district court
erred in applying 28 U.S.C. § 2254(e)(1) to his cause because there should be no
presumption of correctness or deference given to the state court judgment on his
habeas petition because the trial judge and the state habeas judge were not the
same and because the state judge conducted only a paper hearing and denied
Petitioner’s motion for discovery during state habeas review. However, as
nothing in his appeal to this court requires us to review the state court’s decision
on Scheanette’s habeas petition under any standard, we need not address this
questionable assertion.

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3.     The district court denied him due process of law in failing to sua sponte
       remove Richard Alley for ineffectiveness during the state and federal
       habeas process.
4.     The district court’s judgment is void because the district court interfered
       with Scheanette filing pro se pleadings, firing counsel and requesting new
       counsel.
5.     The district court denied him due process and its judgment is void because
       it failed to inquire into conflicts of interest between appointed counsel and
       Petitioner.
Although the district court denied Scheanette’s 60(b) motions without reasons,
the dismissals were fully justified because the motions were untimely.2 There
are also additional reasons the dismissals were correct.
       We read these claims as attacking “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.” Canales, 507 F.3d at 887, quoting Gonzalez v. Crosby, 545
U.S. 524, 532 (2005). Accordingly, we will not treat Scheanette’s 60(b) motions
as successive habeas petitions. Id. Rather we will address whether COA is
appropriate under the standards set forth above.
       First, reasonable jurists could not debate the district court’s rejection of
Scheanette’s allegation that the district judge should have disqualified himself
after admonishing the Petitioner about AEDPA requirements and limitations on


       2
         To the extent his motions were filed under Rule 60(b)(1) and (3), they were clearly
untimely as they were filed more than one year after the entry of judgement. Fed.R.Civ. P.
60(c)(1). To the extent his motions were filed under Rule 60(b)(4) or (6), subsection (c)(1) of
that rule requires that the motion be made within a reasonable time. The federal petition for
writ of habeas corpus was filed in January 2006 and denied by the district court on April 10,
2006. Scheanette offers no explanation for why it took him nearly two years to seek
reconsideration of the district court’s decision especially when the grounds he raises were
known to him at the time the petition was filed and denied. If the district court denied these
motions on procedural grounds, reasonable jurists would not debate the district court’s
decision.

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federal habeas proceedings. Although Scheanette cites authority that a district
judge has no obligation to act as counsel or paralegal to a pro se litigant, nothing
in those cases forbids a judge from advising a litigant about statutory and
procedural requirements related to his case. Pliler v. Ford, 542 U.S. 225, 231-32
(2004). COA is not warranted as to this claim.
      In the remaining four claims raised in Rule 60(b) motions, Scheanette
complains about his representation by Richard Alley on federal habeas and the
district court’s response or failure to respond to the situation in which Alley
failed to file all of the claims that Scheanette wanted to file. The record reveals
that Scheanette agreed to representation by Richard Alley for his federal habeas
petition. Therefore, Alley was permitted to sign the petition for writ of habeas
corpus on Scheanette’s behalf. 28 U.S.C. § 2242 (petition may be signed “by
someone acting on [Petitioner’s] behalf”). Although Scheanette complains that
Alley did not include all the claims that he wanted him to file, Scheanette had
no right to an attorney who would do as he was told and counsel had no
obligation to raise every claim suggested by his client. See Vega v. Johnson, 149
F.3d 354, 361 (5th Cir. 1998); Jones v. Barnes, 463 U.S. 745, 751 and 754 (1983);
Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003).
      Further, the district court had no obligation to remove counsel. Although
28 U.S.C. § 2261(e) authorizes a federal court to appoint different counsel during
state or federal post-conviction proceedings on the basis of ineffectiveness or
incompetence, it is not required to do so. Significantly, § 2261 explicitly states
that “[t]he ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief in a
proceeding.” See also 28 U.S.C. § 2254(i); Coleman v. Thompson, 501 U.S. 722,
752 (1991); Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir. 2002)(There is no
constitutional right to competent counsel in a habeas proceeding.) Accordingly,
counsel’s alleged failures in drafting Scheanette’s federal habeas petition and the

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district court’s failure to respond thereto cannot support a substantial showing
of the denial of a constitutional right as is required for a COA.
                                      IV.
      Scheanette raises seven additional claims in this petition.
8.    The judge at his trial was not impartial.
9.    The trial court erred in admitting fingerprint and DNA testimony into
      evidence in violation of the due process clause and the equal protection
      clause of the Fourteenth Amendment.
10.   The trial court erred in overruling Petitioner’s request for a change in
      venue, in violation of the due process clause and the equal protection
      clause of the Fourteenth Amendment.
11.   The jury at Petitioner’s trial was selected in violation of the due process
      clause and the equal protection clause of the Fourteenth Amendment.
12.   The trial court engaged in purposeful discrimination in denying
      Petitioner’s objections that fingerprints, DNA and saliva had been
      obtained without probable cause and should have been excluded under
      state and federal exclusionary rules.
13.   Petitioner was denied effective assistance of counsel at his pretrial and
      trial in violation of the Sixth and Fourteenth Amendments.
14.   Petitioner was denied due process of law at his pretrial and trial by his
      counsel in violation of the Fifth and Eighth Amendments.
      Issues eight through twelve have never been raised by Scheanette before
in either the state or federal courts. Some portions of issues thirteen and
fourteen were presented to the state, but not the federal habeas court. At best
Scheanette made a cursory reference to issues thirteen and fourteen in his
requests for COA from the district court. The remainder of the claims are
unexhausted and procedurally barred.        Further, this court does not have
jurisdiction to consider these claims because Scheanette did not seek a COA from


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the district court on any of these grounds. Sonnier v. Johnson, 161 F.3d 941, 946
(5th Cir. 1998)(“Compliance with the COA requirement of 28 U.S.C. § 2253(c) is
jurisdictional and the lack of a ruling on a COA in the district court causes this
court to be without jurisdiction to consider the appeal.”).
      As to all of these issues, eight through fourteen, Scheanette’s appeal to this
court is a second or successive application within the meaning of § 2244 because
it “1) raises a claim challenging the petitioner's conviction or sentence that was
or could have been raised in an earlier petition; or 2) otherwise constitutes an
abuse of the writ.” Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003).
Under the terms of § 2244(b)(2), a claim presented in a second or successive
habeas corpus application that was not presented in a prior application shall be
dismissed unless - -
      (A) the applicant shows that the claim relies on a new rule of
      constitutional law, made retroactive to cases on collateral review by
      the Supreme Court, that was previously unavailable; or
      (B) (i) the factual predicate for the claim could not have been
      discovered previously through the exercise of due diligence; and
      (ii) the facts underlying the claim, if proven and viewed in light of
      the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

28 U.S.C. § 2244(b)(2). Scheanette has not made and cannot make any such
showing as to the above listed issues.
      To the extent this appeal can be construed as a motion for an order
authorizing the district court to consider Scheanette’s successive habeas petition,
it is denied because Scheanette has failed to make a prima facie showing that
the application meets the requirements of § 2244(b)(2) as set forth above. 28
U.S.C. § 2244(b)(3).


                                         V.

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                                No. 08-70026

      For the foregoing reasons, we deny COA on Scheanette’s issues one
through five, and dismiss the remainder of his claims of error pursuant to 28
U.S.C. § 2244(b)(2). For these same reasons, Scheanette’s motion for stay of
execution is denied as unwarranted.
COA   DENIED;     APPEAL     DISMISSED;        AUTHORIZATION      TO   FILE
SUCCESSIVE HABEAS DENIED; STAY OF EXECUTION DENIED.




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