Broussard v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-40295 _______________

WINDELL BROUSSARD,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee. _________________________

Appeal from the United States District Court for the Eastern District of Texas 1:98-CV-2053 _________________________ April 27, 2001

Before SMITH, BARKSDALE, and the state moved for summary judgment. PARKER, Circuit Judges. Broussard’s lawyers failed to respond to the motion, and the court granted summary JERRY E. SMITH, Circuit Judge:* judgment. The court denied relief from judgment under FED. R. CIV. P. 60(b). Windell Broussard was convicted of murdering his estranged wife and her son and Broussard seeks a certificate of appealabili- was sentenced to death. He filed a federal ty (“COA”) from that denial, arguing that his petition for writ of habeas corpus, whereupon attorneys’ negligence prevented him from fully and fairly litigating his habeas claims and that the state court erred in not giving him more * funds to litigate his claims. We deny the Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be request for COA. published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. I. 47.5.4. Broussard had two attorneys: Paula Effle,

an experienced capital habeas litigator, and the United States. 28 U.S.C. § 2254(a). Joseph Hawthorne, a capital trial lawyer. Ef- fle, the lead counsel, handled most of the work Broussard’s motion for relief from final in developing the issues and preparing the pe- judgment under rule 60(b) makes no such tition. For health reasons, she left her law claim; he argues only that he “was denied any practice shortly after the filing of Broussard’s opportunity for a full and fair treatment of his habeas petition. Unfortunately, she failed to claims,” but he states that “[t]his is not a con- notify Hawthorne, who assumed that Effle was stitutional claim per se.” Even if Broussard taking care of the case and took no steps to possibly could have raised a due process claim ensure that she was still performing her duties. under the Fourteenth Amendment, his disa- Hawthorne received a copy of the motion for vowal of the constitutional nature of his claim summary judgment but did nothing. precludes such a construction; he never even uses the term “due process.” Thus, because he Broussard contends that this negligence alleges no constitutional violation, this claim is should not be held against him. Rule 60(b) no basis for habeas relief, so we deny COA on provides that this issue.

[o]n motion and upon such terms as are B. just, the court may relieve a party or a par- We also may analyze Broussard’s claim for ty’s legal representative from a final rule 60(b) relief as an ordinary request for judgment, order or proceeding for the relief from judgment. Rule 60(b) may apply in following reasons: (1) mistake, habeas proceedings, Gray v. Estelle, 574 F.2d inadvertence, surprise, or excusable neglect 209, 214 (5th Cir. 1978), without being . . . [or] (6) any other reason justifying subject to the successive petition restrictions relief from the operation of judgment. of the AEDPA, see Randall S. Jeffrey, Successive Habeas Corpus Petitions and Sec- FED. R. CIV. P. 60(b)(1), (6). Broussard tion 2255 Motions after the Antiterrorism and suggests that either the attorneys’ negligence Effective Death Penalty Act of 1996: was excusable or the circumstances justify Emerging Procedural and Substantive Issues, relief. 84 MARQ. L. REV. 43, 66 (2000). A. The procedural posture of this petition pre- We review a rule 60(b) motion for abuse of sents an analytical difficulty: Broussard has discretion. Halicki v. La. Casino Cruises, requested a COA, yet his rule 60(b) relief is Inc., 151 F.3d 465, 470 (5th Cir. 1998). To not susceptible to that analysis. A rule 60(b) prevail, Broussard must show either that the motion alleging constitutional grounds for set- attorney’s failure to respond to the motion for ting aside a conviction may be treated as a suc- summary judgment was excusable neglect un- cessive habeas petition under 28 U.S.C. der rule 60(b)(1) or an extraordinary § 2255. United States v. Rich, 141 F.3d 550, circumstance justifying relief under rule 553 (5th Cir. 1998). A federal court, 60(b)(6). See id.; Ackermann v. United States, however, may entertain a habeas petition only 340 U.S. 193, 202 (1950). The provisions are on the ground that the prisoner’s confinement mutually exclusive: If a part y is partly to violates the laws, treaties, or Constitution of blame for the delay, and the motion is brought,

as here, within one year, rule 60(b)(1) is used; in a slander suit. Seven Elves, 635 F.2d 396 if a party is prevented from complying with a (deciding that the district court had entered deadline by an act of God or other judgment without examining the full merits of circumstances beyond his control, we apply the case or allowing appellants to present their rule 60(b)(6). Pioneer Inv. Serv. Co. v. side of the argument). We also have granted Brunswick Assoc. Ltd. Partnership, 507 U.S. relief where an attorney failed to file an 380, 393-94 (1993). Because Broussard’s appearance in a medical malpractice suit. attorneys should have employed greater Roberts v. Rehoboth Pharm., Inc., 574 F.2d safeguards to ensure that action was taken, we 846 (5th Cir. 1978). Likewise, where an use the “excusable neglect” analysis under rule attorney missed by one day the deadline to file 60(b)(1).1 a meritorious appeal, the court granted a rule 60(b) motion. Mann v. Lynaugh, 690 F. We construe rule 60(b) liberally to ensure Supp. 562, 565 (N.D. Tex. 1988) (internal that close cases are resolved on the merits. citations omitted). We have found excusable See Rogers, 167 F.3d at 938. Indeed, “where neglect where the defendant did not realize he denial of relief [under rule 60(b)] precludes had the burden to prosecute subpoena examination of the full merits of the cause, proceedings after their removal to district even a slight abuse of discretion may justify re- court. Sparks v. Gesell, 978 F.2d 226, 233-34 versal.” Halicki, 151 F.3d at 471 (citing Seven (5th Cir. 1992). Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981)). An important component of the rule 60- (b)(1) analysis, however, is the concern that We have found excusable neglect where at- the court not disturb the finality of a judgment torneys have missed deadlines. Mere failure to without good reason. Cf. Rogers, 167 F.3d at file a timely appeal is not excusable, but where 938 (listing the merits of the defendant’s claim an attorney failed to file notice of a change of as a necessary factor). We have gone to great address and did not receive the opponent’s lengths to avoid a miscarriage of justice: In motion for summary judgment until after a Gray, 574 F.2d at 214, the court found that a default judgment had been entered against his district attorney’s failure to call certain client, the court granted relief.2 We have ex- witnesses was not “excusable neglect” under cused attorneys who did not show up for trial rule 60(b)(1), but because the testimony of those witnesses probably would alter an important factual determination, the court 1 Cf. Rogers v. Hartford Life & Accident Ins. concluded that the district court had abused its Co., 167 F.3d 933, 938 (5th Cir. 1999) discretion. Gray, 574 F.2d at 214. Broussard (concluding that rule 60(b)(1) applied where a must show “both the existence of a sufficiently party had failed to take minimal steps to ensure meritorious defense and the absence of a fair that it received a copy of a complaint of which it opport unity to present that defense.” Seven was aware and to which it should have responded). Elves, 635 F.2d at 403. 2 Compare Halicki, 151 F.3d at 470 (denying relief where movant “misunderstood” the filing Assuming arguendo that Broussard did not deadline for an appeal) with Blois v. Friday, 612 have a fair opportunity to present his defense, F.2d 938 (5th Cir. 1980) (finding excusable ne- his lack of a meritorious claim prevents us glect). from reversing the denial of rule 60(b) relief.

In its thorough opinion, the district court der the Due Process Clause of the Fourteenth carefully examined each of Broussard’s claims Amendment, he has not tied this claim to any but concluded that each was either previous claim in his habeas petition. Thus, procedurally barred or without merit or both.3 we treat it as a new claim. Broussard presented not one close legal question on which additional argument could A new claim presented in a successive have affected the outcome. Cf. Gray, 574 habeas petition shall be dismissed unless it F.2d at 214. “It is not enough that the contains granting of relief might have been permissible, or even warrantedSSdenial must have been so (1) newly discovered evidence that, if unwarranted as to constitute an abuse of proven and viewed in the light of the discretion.” Seven Elves, 635 F.2d at 402. evidence as a whole, would be sufficient Because no substantial injustice resulted, the to establish by clear and convincing evi- district court did not commit reversible error. dence that, but for the constitutional er- ror, no reasonable factfinder would have found the movant guilty of the III. underlying offense; or In his rule 60(b) motion, Broussard avers that the state should have provided his lawyer (2) a new rule of constitutional law, with more money to investigate his habeas made retroactive to cases on collateral claims. This portion of the request for COA review by the Supreme Court, that was should be analyzed as a successive habeas previously unavailable. petition. See Rich, 141 F.3d at 551. Although he does not say so explicitly, Broussard seems 28 U.S.C. § 2255. Broussard has not even to suggest that the additional funds would suggested that he relies on a new rule of have helped him to develop the factual record constitutional law, that he was previously through evidentiary hearings. He does not unaware of the alleged insufficiency of the identify specific factual questions that were in- funds to pursue his claim, or that the additional adequately developed by the state court, but funds would have proven his innocence. Thus, he argues that his claims were “denied a full we cannot grant a COA on this claim. and fair hearing.” Accordingly, the request for COA is In its opinion, the district court indicates DENIED. that the state conducted an evidentiary hearing on the application, and Broussard has not identified any specific way in which it was defective. Even assuming arguendo that Broussard has raised a constitutional claim un-

3 Accord Halicki, 151 F.3d at 471 (“Our case- law allows for more leniency in opening up default judgments, not those in which the court has had a chance to evaluate the merits.”).