United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 17, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-70043
_____________________
BOBBY WILCHER,
Petitioner - Appellant,
v.
CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the
Southern District of Mississippi, Jackson
(3:98-CV-236)
Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
By EDITH H. JONES:*
In this appeal from the district court’s denial of
Petitioner-Appellant’s emergency motion to reinstate his petition
for writ of habeas corpus, to withdraw his pro se motion, and to
reinstate the stay of execution, we are asked to consider whether
Petitioner-Appellant, Bobby Glen Wilcher, is entitled to relief
from the Mississippi Supreme Court’s order of execution, scheduled
for October 18, 2006. Having carefully reviewed the district
court’s Memorandum Opinion of October 16, 2006, and the parties’
*
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this opinion should not be published and is not precedent except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.
briefs on appeal, we conclude that Petitioner’s claims do not merit
reinstatement of his petition for writ of habeas corpus or any
other relief before this court. Petitioner’s filing embodies not
only an attempt to revive a collateral review proceeding that he
competently, knowingly, and voluntarily forsook, but also an
attempt to relitigate or ignore the finality of the just-completed
appeal that affirmed the district court’s competency finding. We
AFFIRM the district court’s judgment, and DENY a stay of execution.
I. PROCEDURAL BACKGROUND
This appeal is the most recent step in a convoluted
procedural history. Petitioner filed, pro se, a “Motion To Drop
All Remaining Appeals And To Allow The State To Immediately Proceed
With Petitioner’s Execution.” In response, the district court
convened a hearing on June 8, 2006, to determine pursuant to the
standards outlined by the Supreme Court in Rees v. Peyton, 384 U.S.
312 (1966), Petitioner’s competency to waive collateral review.
After subjecting Petitioner to extensive questioning in regard to
his pro se filing, the district court found that he fully
appreciated his position and that he was capable of cogently and
voluntarily waiving any continued pursuit of relief from his
sentence through habeas litigation. The district court granted
Petitioner’s motion to dismiss from the bench and issued a written
order memorializing its ruling on June 14, 2006.
2
Contrary to the wishes expressed only two days earlier in
Petitioner’s pro se motion, counsel for Petitioner filed a motion
to reinstate the stay of execution pending the filing of a motion
to reconsider under Federal Rules of Civil Procedure 59 and 60.
Counsel informed the district court that the motion to reconsider
would not be filed until June 27, 2006. Respondent Christopher J.
Epps, Commissioner of the Mississippi Department of Corrections,
then filed a response to Petitioner’s motion on June 19, 2006, and
Petitioner’s counsel replied on June 20, 2006. The district court
denied the motion to reinstate the stay of execution on June 23,
2006. On June 26, 2006, the Mississippi Supreme Court set
Petitioner’s execution date for July 11, 2006.
On June 26, 2006, counsel for Petitioner filed a Motion
to Set Aside Orders of June 14, 2006, and June 23, 2006, to
Reinstate the Stay of Execution, and For Appropriate Mental Health
Evaluation. Counsel for Petitioner then filed an emergency motion
requesting the district court to rule on the motions for
reconsideration and reinstatement of the stay on June 29, 2006.
The district court entered an order denying the motion for
reconsideration and additionally entered an order denying the
motion to set aside.
On July 3, 2006, Petitioner’s counsel filed an Emergency
Application for Certificate of Appealability (“COA”) and a Notice
of Appeal in the district court, which was denied later that day.
3
An additional application for COA and request for stay of
execution were then filed in this court. On July 7, 2006, while
pending review before us, counsel filed a bare-bones affidavit in
which Petitioner, having ostensibly reflected on his predicament,
requested reinstatement of all legal remedies available to him.
Counsel then filed a motion to reinstate Petitioner’s appeals and
requested a stay of execution.
This court denied Petitioner’s COA application in an
opinion which concluded that the district court committed no error
and that no reasonable jurist could disagree with the propriety of
the district court’s order.1 See Wilcher v. Anderson,
___F.App’x___, 2006, WL 1888895 (5th Cir. July 10, 2006). We
dismissed both the motion to reinstate and the motion for stay.
Counsel for Petitioner then filed a petition for writ of
certiorari and a motion for stay of execution with the United
States Supreme Court, which stayed the execution pending the
disposition of the petition for writ of certiorari. See Wilcher v.
Epps, ___U.S.___, 2006 WL 1893911 (July 11, 2006).
The Supreme Court denied certiorari and vacated its stay
of execution on October 2, 2006. See Wilcher v. Epps, ___U.S.___,
2006 WL 1909696 (October 2, 2006). That same day, the State of
1
Moreover, we strongly implied in rejecting Petitioner’s
application for COA that its recasting as a successive
application for a writ of habeas corpus would be equally
unavailing because Petitioner fails to meet the requirements of
28 U.S.C. § 2244(b)(2). See Wilcher v. Anderson, ___F.App’x___,
2006, WL 1888895 (5th Cir. July 10, 2006).
4
Mississippi filed a motion for reinstatement of the date of
execution in the Mississippi Supreme Court. That court granted the
motion and designated that Petitioner is to be executed on
October 18, 2006.
On October 5, 2006, counsel filed another emergency
motion in the district court, together with another affidavit by
Wilcher, seeking to reinstate the habeas petition voluntarily
dismissed by Petitioner in June 2006. The district court rejected
this second motion to reinstate in a Memorandum Opinion issued on
the afternoon of October 16, 2006. Counsel immediately filed a
notice of appeal in this court contesting the district court’s
Memorandum Opinion.
II. DISCUSSION
Petitioner’s most recent motion in the district court was
predicated on relief under Federal Rule of Civil Procedure
60(b)(6).2 We review an appeal from denial of a motion made
pursuant to Rule 60(b)(6) under an abuse of discretion standard.
Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204, 210 (5th
Cir. 2003). Under this standard, “[i]t is not enough that the
granting of relief might have been permissible, or even warranted
2
Rule 60(b), in pertinent part, confers upon this court the
broad equitable power to “relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for .
. . (6) any other reason justifying relief from the operation of
the judgment.” See, e.g., Harrell v. DCS Equip. Leasing Corp.,
951 F.2d 1453, 1458 (5th Cir. 1992) (“The broad language of
clause (6) gives the courts ample power to vacate judgments
whenever such action is appropriate to accomplish justice.”).
5
– denial must have been so unwarranted as to constitute an abuse of
discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th
Cir. 1981).
The district court found that Petitioner failed to
present any valid reason why his request to rescind dismissal of
the habeas petition should be granted under Rule 60(b)(6). (Mem.
Op. at *6.) Further, the court reiterated its determination that
Petitioner is mentally competent and voluntarily undertook to
abandon all avenues of legal relief from his sentence. (Mem. Op.
at *6.) The district court determined that nothing in the language
of Rule 60(b)(6) requires reinstatement of a petition for habeas
relief voluntarily dismissed at the behest of a defendant. (Mem.
Op. at *9.) Finally, the district court stated that Petitioner
failed to demonstrate that a motion to withdraw a voluntarily
dismissed habeas petition qualified as an “extraordinary
circumstance” meriting relief under Rule 60(b)(6). (Mem. Op. at
*8.) See American Totalisator Co., Inc. v. Fair Grounds Corp.,
3 F.3d 810, 815 (5th Cir. 1993). We detect no abuse of discretion
in any of these findings.
Petitioner’s reliance on Lonchar v. Thomas, 517 U.S. 314,
116 S. Ct. 1293 (1996) likewise fails to provide justification for
the argument that a district court must reinstate a habeas petition
that has been voluntarily relinquished by a criminal defendant.3
3
Neither of the circuit cases Petitioner cites to bolster
this contention is on point. In St. Pierre v. Cowan, 217 F.3d
6
Lonchar involved a last-minute habeas filing and motion for stay of
execution by a death-row inmate that were vacated by the Eleventh
Circuit for inequitable conduct. The Supreme Court reinstated the
stay and reversed, holding that a court may not dismiss a first
habeas petition “for special ad hoc ‘equitable reasons’ not
encompassed within the framework of Rule 9.” Lonchar, 517 U.S. at
322, 116 S. Ct. at 1298. Lonchar’s holding does not extend to the
situation currently before us. That case addressed only the imper-
missibility of involuntary dismissal of a first habeas petition on
motion by the state; it does not require this court to reinstate a
habeas petition voluntarily dismissed by Petitioner himself.
We note that the district court considered only in
passing the issue of whether Petitioner’s motion was properly
subject to treatment as a Rule 60(b) motion or as a successive
939 (7th Cir. 2000), the Seventh Circuit reversed the district
court dismissal of a petition for habeas relief waived by a
death-row inmate. Contrary to Petitioner’s contention that St.
Pierre applies, the Seventh Circuit explicitly predicated remand
on the fact that the Illinois Supreme Court had taken no steps
“to assure itself that St. Pierre was making this decision
unequivocally, permanently, voluntarily, and intelligently.” Id.
at 948. In contrast, we are satisfied that the exhaustive
competency hearing conducted by the district court in
Petitioner’s case distinguishes St. Pierre.
Nor does the Eighth Circuit’s holding in Smith v.
Armontrout, 865 F.2d 1502 (1988) (en banc), require a contrary
result. The district court ruling in Smith, too, was made in the
absence of an adequate mental competency determination.
Moreover, Smith’s action was dismissed without prejudice pending
developments that might have warranted issuance of a certificate
of probable cause. See Smith v. Armontrout, 857 F.2d 1228, 1230
(8th Cir. 1988).
7
petition for habeas review under 28 U.S.C. § 2244(b). The lion’s
share of its analysis is based on the unquestioned assumption that
Petitioner’s claim is actually a true Rule 60(b) motion.
The Supreme Court has recently distinguished these two
forms of relief and described the procedural ramifications arising
out of their use. See Gonzales v. Crosby, 545 U.S. 524, 125 S. Ct.
2641 (2005). Section 2244(b) requires that a successive applica-
tion for habeas relief contain one or more claims not presented in
a prior application. Id. at ___, S. Ct. at 2647. However, the
Gonzales Court observed that Rule 60(b) motions, too, are often
characterized by assertion of a “claim,” e.g., that excusable
neglect permits leave to include a claim of constitutional error
under Rule 60(b)(1), or that a subsequent change in substantive law
justifies relief under Rule 60(b)(6).4 Id. Accordingly, a claim-
asserting Rule 60(b) motion is “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 [section
2244(b)].” Id. (internal quotations omitted).
Based on this analysis, Petitioner’s claim could
reasonably be interpreted not as a true Rule 60(b) motion, but
rather as a successive habeas application, since his filing really
amounts to an attempt to obtain relief from dismissal of his
4
The Courts of Appeals are in agreement on this point as
well. See, e.g., Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir.
2003); Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002).
8
original habeas petition so as to gain the opportunity to reassess
the merits of his case. Gonzales lends further support to the
interpretation of Petitioner’s claim as a successive habeas
application as it notes that “an attack based on the movant’s own
conduct, or his habeas counsel’s omissions...in effect asks for a
second chance to have the merits determined favorably.” Id. at ___
n.5, 125 S. Ct. at 2648 n.5. Even if Petitioner’s claim is pro-
cedurally better understood as a successive habeas petition,
however, he has waived the opportunity for reapplication, by not
pursuing it in this court. And, even if he had not waived this
argument, what he has filed would not meet the requirements of
§ 2244(b) in any case. See Wilcher v. Anderson, ___ F.App’x.___,
2006, WL 1888895 (5th Cir. July 10, 2006).5
For these reasons, the district court’s judgment is
AFFIRMED and appellant’s motion to stay execution scheduled for
Wednesday, October 18, 2006, is DENIED.
5
Finally, should the Supreme Court decide that Rule 60(b)(6)
relief may be justified in circumstances like these, both the
“extraordinary” nature of the relief requested and the potential
overlap of this remedy with successive habeas relief would seem
to require a petitioner to make some showing that a delay in
carrying out the execution has a bona fide legal purpose. Thus,
it would seem that a petitioner like Wilcher would have to
demonstrate not only that he deserved a chance to revive his
habeas petition, but also that the petition itself at least meets
the standard for a COA — debatable among jurists of reason — or,
as in Rule 60(b) relief from a default judgment — that petitioner
has a meritorious claim for relief.
9