Williams v. Thaler

Case: 08-70046 Document: 00511059846 Page: 1 Date Filed: 03/23/2010

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

FILED
March 23, 2010

No. 08-70046 Charles R. Fulbruge III
Clerk

JEFFREY DEMOND WILLIAMS,

Petitioner–Appellant
v.

RICK THALER, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-02945

Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Jeffrey Demond Williams appeals the district court’s denial of a certificate
of appealability (“COA”) on his Federal Rule of Civil Procedure 59(e) motion to
alter or amend the judgment, which raised claims of actual innocence and
ineffective assistance of counsel (“IAC”) at sentencing ; and his Federal Rule of
Civil Procedure 60(b) motion for relief from judgment, which accused the State
of discovery violations for not serving him subpoenas duces tecum (“SDTs”) that
it issued. The district court held that Williams had not made a substantial
showing of a denial of a constitutional right, and we agree. We therefore affirm
the district court’s denial of a COA on Williams’s two motions.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In May 1999, Houston Police Officer Tony Blando drove an unmarked Jeep
Cherokee around the parking lot of a hotel looking for stolen cars. Blando wore
plainclothes, but a badge identifying him as a law enforcement officer hung
around his neck. Blando observed a man driving a Lexus, and after running a
computer search, learned that someone had stolen the car in an aggravated
robbery several months earlier.
At trial, two witnesses testified that the man in the Lexus stepped out of
the car, and Blando approached him with his weapon drawn, in accordance with
departmental practice. Blando and the man began to argue, and the man told
Blando not to handcuff him. After Blando successfully cuffed one of the man’s
arms, the man spun around and shot Blando in the chest. Blando eventually
died from his wound.
Houston police arrested Williams, wearing one handcuff, a short time later
near the scene of the shooting. An officer read Williams his Miranda warnings,
and after acknowledging that he understood his rights, Williams made two
inculpatory statements. The police also recovered shell casings from three
different weapons near the scene of the shooting, some of which came from
Williams’s gun. Law enforcement investigators found Williams’s fingerprints on
both the stolen Lexus and Blando’s unmarked Jeep Cherokee.
B. Procedural Background
1. State Court Proceedings
At trial, the State introduced the printout from Blando’s mobile data
terminal, the tape of Blando’s last communications with dispatch, and the
audiotaped statements that Williams made to police after his arrest. In one
audiotape, Williams discussed the carjacking of the Lexus, and in another, he
discussed other extraneous violent crimes. The State also introduced testimony

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from the owner of the stolen Lexus and evidence that Williams had shot another
individual during an unrelated robbery with the same weapon used to kill
Blando.
The Defense presented no witnesses during the guilt phase of Williams’s
trial. In his statement to police, however, Williams stated that he did not know
that Blando was a police officer, and claimed that he shot Blando in self defense
because he thought Blando intended to rob him. The jury found Williams guilty
of capital murder.
At the penalty phase, Williams’s mother testified on his behalf. She stated
that her and Williams’s father had been married for twenty-five years and that
she worked at a psychiatric hospital enrolling emotionally disturbed children in
a school program. She also stated that Williams attended church regularly and
assisted with the congregation. She further testified that Williams’s family did
not suffer economically, and that Williams had both parents readily available to
him.
Although she reported no problems with her pregnancy or Williams’s birth,
Williams’s mother testified that it took Williams longer than normal to learn to
walk and talk. She also characterized Williams as a loner in grade school, and
testified that he did not always understand instructions and that she helped him
with his school work. She testified that by the time Williams reached high
school, she thought that “something up there was not right.”
In high school, school officials diagnosed Williams as emotionally
disturbed after Williams began to exhibit behavioral problems, such as breaking
into lockers and stealing items from the mall. The Defense introduced the
results of an intelligence quotient (“IQ”) test administered to Williams in the
ninth grade, which reported that Williams had a verbal IQ of 79, a performance
IQ of 65, and a full scale IQ of 70, which placed him in the “borderline” mentally
retarded range. Williams, however, continued to progress from grade to grade.

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Williams also presented evidence that after high school, he enlisted in the
Navy, and received a general discharge under honorable conditions. Williams
then worked for an auto-parts supplier driving a delivery truck and as a night
stockman for a grocery store.
One of Williams’s fellow church members also testified that Williams was
a very nice, courteous individual, and a church counselor described Williams as
a “delightful child, very well mannered.” One of Williams’s Sunday School
teachers testified that Williams was quiet and reserved, while another testified
that as a teenager, Williams got along well with the elder members of the
congregation but did not develop relationships with other teens as well as his
peers. Finally, a parent of a fellow high school classmate testified that Williams
was usually quiet, and provided help when she needed assistance.
The jury found that Williams posed a future danger to commit criminal
acts of violence that would constitute a continuing threat to society, and found
insufficient mitigating evidence to warrant a life sentence. Accordingly,
Williams was sentenced to death. The Texas Court of Criminal Appeals
(“TCCA”) affirmed Williams’s conviction and sentence, Williams v. State, No.
73,796 (Tex. Crim. App. 2002), and denied his first application for state post-
conviction relief. Ex Parte Williams, No. 50,662-01 (Tex. Crim. App. 2003).
Williams did not petition the United States Supreme Court for a writ of
certiorari.
In 2003, Williams filed a successive petition for state postconviction relief,
alleging that he was mentally retarded and therefore ineligible for the death
penalty under the Eighth Amendment as interpreted in Atkins v. Virginia, 536
U.S. 304, 321 (2002). Williams also argued that the Sixth Amendment barred
his execution because the jury did not make a determination on his mental
retardation claim. The TCCA dismissed his petition as an abuse of the writ after

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finding that Williams failed to make a prima facie case of mental retardation.
Ex Parte Williams, No. 50,662-02 (Tex. Crim. App. 2003).
2. Federal Court Proceedings
i. Williams’s Habeas Motion
In 2004, Williams filed a petition in federal district court for a writ of
habeas corpus, asserting the same issues in his state petitions. The district
court dismissed most of the issues in Williams’s petition on procedural grounds.
These dismissed claims included Williams’s allegation of IAC at sentencing,
which the district court found unexhausted and procedurally barred.
The district court, however, found that the Texas state court’s
determination that Williams failed to plead a prima facie case of mental
retardation “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Because Williams satisfied this threshold inquiry under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), the district court allowed Williams to
argue the merits of his Atkins claim.
The seven day evidentiary hearing before a magistrate judge resulted in
significant evidence tending both to support and refute Williams’s claim of
mental retardation.1 The parties presented the magistrate judge with evidence
from three different IQ tests recording Williams’s score as either a 70 or a 71,
which suggested at least borderline mental retardation, and a slew of academic
achievement tests in which Williams scored in the non-mentally retarded range.
Williams argued that despite the discrepancies, the magistrate judge should
consider him mentally retarded, while the State argued that because of the
discrepancies, the magistrate judge should not. The State’s expert produced

1
For a more comprehensive summary of Williams’s evidentiary hearing, see Williams
v. Quarterman, 293 F. App’x 298, 303–07 (5th Cir. 2008) (unpublished) (per curiam).

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evidence adduced during one of the IQ tests suggesting that Williams failed to
put forth a good effort.2
The magistrate judge also heard testimony that while in the sixth,
seventh, and eighth grades, Williams took a national standardized test called the
Metropolitan Achievement Test and, although he scored below grade level in
some subjects, he scored above grade level in others. Also while in the seventh
grade, Williams demonstrated mastery in mathematics, reading, and writing on
the Texas Educational Assessment of Minimum Skills, a separate achievement
test. In the ninth grade, Williams passed the reading and writing sections of the
Texas Assessment of Academic Skills Test, but failed the mathematics portion.
Williams also offered testimony tending to show that he suffered from
adaptive deficits, specifically in the areas of self-care, home living, social and
personal skills, work, and leisure. Williams introduced testimony that he failed
to dress appropriately for the weather, could not keep an apartment or working
car on his own, had been fired from every job he ever held, and was beaten up
frequently as a child. Williams’s expert on this point conceded, however, that
these deficits could be attributed to behavioral abnormalities rather than
cognitive deficiencies.
Williams also documented his high school years, in which school officials
punished Williams for theft, truancy, and for setting a trash can on fire, and in
which Williams split time between regular classes and special education classes.
Williams earned generally passing, albeit low, grades in all his classes. He
eventually graduated high school on time, with a grade point average of 2.19 and
a class rank of 326 out of 480.

2
The State’s expert reported that Williams’s score on a portion of the Green’s Word
Memory Test, which assesses an individual’s level of effort on IQ tests, was lower than if he
had been randomly guessing, and opined that Williams had deliberately answered some
questions incorrectly.

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Finally, the magistrate judge heard testimony from many people who
knew Williams through various stages of his life. These witnesses included
Williams’s parents, his high school principal, several of his childhood friends,
and those who knew him during his time in the Naval Reserves. While most
described Williams as odd and several testified to his apparent inability to follow
directions or rules of games, most opined that they did not believe that Williams
was mentally retarded. Some, however, stated that they treated him differently
because they believed he was “slow.”
The magistrate judge issued a seventy-eight page report and
recommendation summarizing the testimony adduced at the evidentiary
hearing, and recommending that the district court reject Williams’s Atkins
claim. Conceding that Williams presented a “close call,” the magistrate judge
recommended that the district court grant sua sponte a COA on the issue of
Williams’s mental retardation. The district court adopted the magistrate’s
report and recommendation in its entirety, granting Williams a COA on his
Atkins claim.
ii. Williams’s Federal Rule of Civil Procedure 59(e) Motion
Prior to Williams’s appeal pursuant to the COA, Williams filed two
additional motions. Williams first filed a Rule 59(e) motion, requesting that the
district court either alter or amend its judgment. In support of his request,
Williams alleged that newly discovered evidence of his actual innocence had
come to his attention. Specifically, Williams claimed that his counsel had
received a call from a man named David Brown, whom neither Williams nor his
counsel had ever heard from before. Brown identified himself as a drug
treatment sponsor in Houston, Texas, who sponsored an individual named
Jervette Jenkins. According to Williams’s counsel, Brown reported that Jenkins
had confessed to killing Blando “under reliable circumstances.” Williams has yet
to locate Jenkins.

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The district court denied Williams’s Rule 59(e) motion. It found that even
if substantiated, the Supreme Court’s decision in Herrera v. Collins, 506 U.S.
390, 400 (1993), barred Williams’s actual innocence claim. See id. (“[C]laims of
actual innocence based on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.”)
Williams’s Rule 59(e) motion also argued that his claim to actual innocence
served as cause to overcome the procedural default on his IAC at sentencing
claim, and that he would show that the additional evidence produced at his
federal Atkins evidentiary hearing, but not at his state court sentencing
determination, demonstrated the ineffectiveness of his counsel at trial. Finally,
Williams requested a stay and abeyance to allow him to exhaust his state court
remedies. The district court denied his motion on these grounds as well, stating
that even if Williams could overcome his procedural default, he had failed to
demonstrate entitlement to relief on his IAC claim because, although “[t]he
additional evidence presented at the evidentiary hearing in th[e] habeas
proceeding was far more detailed,” it “added little substance to the evidence
presented at trial.”
iii. Williams’s Federal Rule of Civil Procedure Rule 60(b)
Motion
Later, Williams filed a Federal Rule of Civil Procedure 60(b) motion for
relief from judgment, alleging that based on the State’s violation of Federal Rule
of Civil Procedure 45(b)(1)—which requires a party to serve the opposing party
with copies of any SDT issued—the district court should vacate its denial of his
petition for a writ of habeas corpus. Williams learned of the alleged Rule
45(b)(1) violations prior to the evidentiary hearing on his Atkins claim when a
potential witness informed Williams’s counsel that she had been served with an
SDT that the State had not served Williams. Williams contacted the Assistant

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Attorney General assigned to his case, who informed Williams that she had not
issued any other SDTs.
During the evidentiary hearing, however, a witness discussed a letter she
had produced in response to another SDT that the State had not disclosed to
Williams. The district court allowed the letter into evidence over Williams’s
objection, but ordered the State to provide copies of any other SDTs that they
had issued. The State produced one additional undisclosed SDT, but could not
produce copies of several others, explaining that no one kept any copies of them.
Williams later learned of more than twenty additional SDTs the State had
issued without providing notice to Williams. The undisclosed SDTs sought
Williams’s visitor logs at Harris County Jail; Williams’s employment records;
Williams’s prison mail; and an assortment of Williams’s financial, educational,
and medical records.
Williams’s Rule 60(b) motion requested both a vacatur of the denial of his
petition for a writ of habeas corpus and an extension of time to develop evidence
regarding any additional Rule 45(b)(1) violations and their resulting prejudice
to Williams’s case. Williams also requested that the district court (1) compel the
State to provide copies of the SDTs; (2) order the State to file with the court a log
of all SDTs issued; and (3) allow Williams to supplement his Rule 60(b) motion
with respect to prejudice after the State complied. The district court denied the
motion, holding that although the State violated Rule 45(b)(1), those violations
did not justify Williams’s request for relief under Rule 60(b).
iv. Williams’s Prior Appeal Before the Fifth Circuit
Pursuant to the district court’s issuance of a COA as to Williams’s Atkins
claim, Williams filed an appeal with us. See Williams, 293 F. App’x at 298. We
conducted a thorough review of Williams’s Atkins claim, and found that

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according to the definition of mental retardation adopted by Texas state courts,3
Williams had failed to demonstrate mental retardation and thus ineligibility for
the death penalty. See id. at 314. We therefore affirmed the district court’s
denial of his petition for a writ of habeas corpus.
Williams also appealed the district court’s denial of his Rule 59(e) and
Rule 60(b) post-judgment motions. Williams, however, had not sought a COA
on these claims, and the district court had not granted a COA sua sponte as it
had done with his Atkins claim. Although we have, in the past, construed
notices of appeals as requests for COAs, we found that we had no jurisdiction to
consider that request because Williams had not requested a COA from the
district court first. Id. at 315 (citing Sonnier v. Johnson, 161 F.3d 941, 945–46
(5th Cir. 1998)). We therefore remanded for consideration of Williams’s request
for a COA on the district court’s denial of his Rule 59(e) and 60(b) motions back
to the district court.
v. Williams’s Request for a COA on his Rule 59(e) and
60(b) Motions Before the District Court
Upon remand, the district court denied Williams’s request for a COA as to
both his Rule 59(e) and 60(b) motions. As to Williams’s Rule 59(e) motion, the
district court reiterated that there existed no freestanding innocence claim that
would warrant federal habeas relief, and that Williams’s IAC claim would fail
even if his actual innocence claim excused his procedural default. The district
court also denied Williams’s request for a stay and abeyance so that Williams
could return to state court to pursue his IAC claim there, finding that Williams
failed to demonstrate a colorable IAC claim that would warrant a stay. Finally,
because Williams’s Rule 60(b) motion did not allege the violation of any

3
See Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (defining mental
retardation as “(1) ‘significantly subaverage’ general intellectual functioning; (2) accompanied
by ‘related’ limitations in adaptive functioning; (3) the onset of which occurs prior to the age
of 18”) (footnotes omitted).

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constitutional right, the district court refused to grant Williams a COA on the
denial of that motion. Williams timely appealed the denial of his requests for
COAs.
II. STANDARD OF REVIEW
Williams does not have an automatic right to appeal the district court’s
denial of his petition for a federal writ of habeas corpus. Rather, he must first
seek and obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Without
a COA, we lack jurisdiction to rule on the merits of his appeal. Id. at 335–36.
We will grant a COA if Williams makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
Williams 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, 537 U.S. at 336 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)) (internal quotation marks omitted).
Our “threshold inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims. In fact, the statute forbids it.” Id.
Accordingly, issuance of “a COA does not require a showing that the appeal will
succeed,” and therefore we “should not decline the application for a COA merely
because [we] believe[] that [Williams] will not demonstrate entitlement to relief.”
Id. at 337. Because Williams faces a sentence of death, “we must resolve any
doubts as to whether a COA should issue in his favor.” Martinez v. Dretke, 404
F.3d 878, 884 (5th Cir. 2005).
III. ANALYSIS
A. Second or Successive Petition
AEDPA’s restriction on second or successive habeas applications serves as
a “gate-keeper by preventing the repeated filing of habeas petitions that attack
the prisoner’s underlying conviction.” Leal Garcia v. Quarterman, 573 F.3d 214,

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220 (5th Cir. 2009). AEDPA instructs us to dismiss any claim presented in a
second or successive petition if a petitioner presented the claim in a previous
application. 28 U.S.C. § 2244(b)(1). If a petitioner presents a new claim in a
second or successive habeas corpus application, we must also dismiss the claim
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)(A)–(B)(ii). “Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the district court to
consider the application.” Id. § 2244(b)(3)(A). A petitioner’s failure to seek
authorization from an appellate court before filing a second or successive habeas
petition “acts as a jurisdictional bar.” United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000).
In Gonzalez v. Crosby, the Supreme Court addressed when a federal court
should construe a petitioner’s motion for relief from judgment pursuant to Rule
60(b) as a second or successive petition. 545 U.S. 524, 526 (2005). Noting that
“[a]s a textual matter, § 2244(b) applies only where the court acts pursuant to
a prisoner’s ‘application’ for a writ of habeas corpus,” the Court began its
analysis by stating that “it is clear that for purposes of § 2244(b) an ‘application’
for habeas relief is a filing that contains one or more ‘claims.’” Id. at 530
(citations omitted). The Court acknowledged that “[i]n some instances, a Rule

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60(b) motion will contain one or more ‘claims,’” and held that “[a] habeas
petitioner’s filing that seeks vindication of such a claim 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 the statute.” Id. at 530–31
(citation omitted).
After noting that “[u]sing Rule 60(b) to present new claims for relief from
a state court’s judgment of conviction—even claims couched in the language of
a true Rule 60(b) motion—circumvents AEDPA’s requirement that a new claim
be dismissed unless it relies on either a new rule of constitutional law or newly
discovered facts,” the Court provided guidance as to when a Rule 60(b) motion
advances one or more “claims.” Id. at 531–32 (internal citations omitted).
Specifically, the Court stated that “[a] motion that seeks to add a new ground for
relief” advances a claim, as does a motion that “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.” Id. The Court noted, however, that “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,” courts should not construe the motion as a second or successive
petition. See id.
Although Gonzalez considered “only the extent to which Rule 60(b) applies
to habeas proceedings under 28 U.S.C. § 2254,” id. at 530 n.3, courts have
extended Gonzalez’s rationale beyond the facts and procedural posture of that
case. Nearly every circuit has applied the Gonzalez rationale to federal
prisoners seeking habeas relief under § 2255.4 Additionally, the Fourth, Eighth,

4
See, e.g., United States v. Roberts, No. 09-60138, 2010 WL 148647, at *1 (5th Cir. Jan.
15, 2010) (per curiam); United States v. Mouzon, No. 09-7300, 2009 WL 4506389, at *1 (4th

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and Tenth Circuits have, either explicitly or implicitly, extended the Gonzalez
framework to other post-judgment motions, including motions to alter or amend
a judgment under Rule 59(e).5
The Federal Rules of Civil Procedure apply to petitions for relief for habeas
corpus “to the extent that they are not inconsistent with any statutory provisions
or the[] rules.” 28 U.S.C. § 2254 Rule 12.6 In construing Rule 60(b) in
accordance with AEDPA, the Gonzales Court sought to ensure that petitioners
would not “circumvent[] AEDPA’s requirement that a new claim be dismissed
unless it relies on either a new rule of constitutional law or newly discovered
facts.” Gonzalez, 545 U.S. at 531 (citing 28 U.S.C. § 2244(b)(2)). Keeping in
mind AEDPA’s basic premises—avoiding piecemeal litigation and encouraging

Cir. Dec. 3, 2009) (per curiam); United States v. Ramsey, No. 09-2760, 2009 WL 3358477, at
*1 (3d Cir. Oct. 20, 2009) (per curiam); United States v. Winston, No. 08-11369, 2009 WL
3080848, at *1 (11th Cir. Sept. 28, 2009) (per curiam); In re Lindsey, 582 F.3d 1173, 1174 (10th
Cir. 2009) (per curiam); Nugent v. United States, 255 F. App’x 526, 526–27 (D.C. Cir. 2007)
(per curiam) (unpublished); United States v. Carter, 500 F.3d 486, 489 (6th Cir. 2007); United
States v. Lam, 228 F. App’x 739, 739 (9th Cir. 2007) (per curiam) (unpublished); United States
v. Washington, 211 F. App’x 550, 550 (8th Cir. 2007) (per curiam) (unpublished); United States
v. Scott, 414 F.3d 815, 816 (7th Cir. 2005).

5
Ward v. Norris, 577 F.3d 925, 935 (8th Cir. 2009) (“[W]e conclude that Ward’s Rule
60(b) and Rule 59 motions were improper because they were not based on a procedural defect,
but rather attacked previous habeas counsel’s omissions and asked for a second opportunity
to have the merits determined favorably.”)(citing Gonzales, 545 U.S. at 532 n.2); United States
v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006) (subjecting Rule 59(e) motions to the same
limitations concerning second or successive motions as those arising under Rule 60(b)); United
States v. Martin, 132 F. App’x 450, 451 (4th Cir. 2005) (per curiam) (unpublished) (“We have
reviewed the record and determine [sic] that [the defendant’s] self-styled motion under Rule
59(e) is, in substance, a second motion attacking his conviction and sentence under 28 U.S.C.
§ 2255 (2000).”); see generally Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007) (describing
Pedraza as “holding post-judgment effort to raise new claim by motion under Rule 59(e) is
likewise equivalent of second or successive petition under § 2244(b));
6
See also FED . R. CIV . P. 81(a)(4) (“These rules apply to proceeding for habeas corpus
. . . to the extent that the practice in those proceedings . . . is not specified in a federal statute
. . . [or] the Rules Governing Section 2254 Cases, and . . . has previously conformed to the
practice in civil actions.”).

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petitioners to bring all their substantive claims in a single filing—we believe
that Rule 59(e) gives rise to concerns similar to those the Supreme Court
addressed in Gonzalez, and therefore apply the Gonzalez framework to both of
Williams’s motions.
In making this determination, we recognize that differences exist between
Rule 59(e) and Rule 60(b). We have held that a properly filed Rule 59(e) motion
voids a previously-filed notice of appeal under Federal Rule of Appellate
Procedure 4(a)(4)(A)(iv), while a Rule 60 motion does not. Harcon Barge Co. v.
D&G Boat Rentals, Inc., 784 F.2d 665, 666 (5th Cir. 1986) (en banc).
Additionally, we have described the scope of Rule 59(e) as “unrestricted,” while
noting that “Rule 60(b) relief may be invoked . . . only for the causes specifically
stated in the rule.” Id. at 669. And of course, a litigant must file a Rule 59(e)
motion “no later than 10 days after the entry of the judgment,” 7 while Rule 60(b)
imposes the more forgiving time limit of either “one year after the entry of the
judgment” or “within a reasonable time.”
In practice, however, “Rules 59(e) and 60(b) permit the same relief—a
change in judgment.” Harcon Barge Co., 784 F.2d at 669; see also 11 W RIGHT,
M ILLER & K ANE, F EDERAL P RACTICE & P ROCEDURE: C IVIL 2 D §2817 at 181–82
(“There is considerable overlap between Rule 59(e) and Rule 60.”); cf. Harcon
Barge Co., 784 F.2d at 669 (“‘[A]ny motion that draws into question the
correctness of a judgment is functionally a motion under Civil Rule 59(e),
whatever its label.’”) (quoting 9 M OORE’S F EDERAL P RACTICE ¶ 204.12[1] at 4–67
(1985)). When a litigant files a motion seeking a change in judgment, courts
typically determine the appropriate motion based on whether the litigant filed

7
In 2009, the Rule 59(e) was amended, and extended the ten day filing deadline to
twenty-eight days. This change does not affect the substance of our analysis.

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the motion within Rule 59(e)’s time limit.8 With this in mind, we do not believe
that a habeas petitioner should have the opportunity to circumvent AEDPA’s
jurisdictional bar on second or successive applications based on little more than
the petitioner’s ability to file his or her motion within 10 days of judgment.9 See
F ED. R. C IV. P. 59(e). We will therefore apply the Gonzalez framework to
determine whether we should construe any of Williams’s motion as a second or
successive habeas petition, and thus subject to AEDPA’s additional jurisdictional
requirements.10
B. Williams’s Rule 59(e) Motion
Williams’s advanced several arguments as to why the district court should
alter or amend its denial of his habeas petition. Williams first argued that his

8
See, e.g., United States v. Gay, 213 F. App’x 722, 723 n.2 (10th Cir. 2007) (per curiam)
(unpublished) (acknowledging that “[t]hese two rules are distinct; they serve different
purposes and produce different consequences,” but that “[w]hich rule applies to a motion
depends essentially on the time a motion is served. If a motion is served within ten days of
the rendition of [the order], the motion ordinarily will fall under Rule 59(e). If the motion is
served after that time it falls under Rule 60(b)”) (alteration in original).
9
Cf. United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (stating, in a pre-Gonzalez
case, that “[w]e agree that courts may treat motions that federal prisoners purportedly bring
under Rule 60(b), but which essentially seek to set aside their convictions on constitutional
grounds, as § 2255 motions. There is a trend among circuit courts to look beyond the formal
title affixed to a motion if the motion is the functional equivalent of a motion under § 2255”).
10
We acknowledge that the Sixth Circuit has explicitly declined to extend Gonzalez’s
framework to Rule 59(e) motions. See Howard v. United States, 533 F.3d 472, 474 (6th Cir.
2008) (“The purposes behind Rule 59(e), as well as the mechanics of its operation, counsel in
favor of the nonapplicability of second-or-successive limitations.”). Because the Gonzalez
framework only applies AEDPA’s second or successive limitations to post-judgment motions
that advance “an asserted federal basis for relief from a state court’s judgment of conviction,”
Gonzalez, 545 U.S. at 530, we are not convinced that extending the Gonzalez rationale to Rule
59(e) motions “would attribute to Congress the unlikely intent to preclude broadly the
reconsideration of just-entered judgments.” Howard, 533 F.3d at 472. We are more persuaded
by the Howard dissent, which stated that while “it is clear that not every Rule 59(e) motion
should be treated as a second habeas,” if a party makes a Rule “59(e) motion (and files within
ten days of the denial of an earlier habeas) it would be anomalous to say that the petition must
be entertained even though it is based on wholly new claims that could just as well have been
labeled a second petition.” Id. at 476 (Boggs, J., dissenting). We thus join our sister circuits
that have extended Gonzalez application to Rule 59(e) motions.

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No. 08-70046

counsel had discovered new evidence that proved Williams’s actual innocence
of Blando’s murder. Alternatively, Williams argued that the new evidence
tending to show his actual innocence demonstrated that executing him would
result in a “fundamental miscarriage of justice,” which, in turn, should excuse
the procedural default that prevented the district court from considering
Williams’s IAC at sentencing claim. Williams also argued that his state habeas
counsel’s actual conflict of interest should excuse his procedural default. Finally,
Williams requested that the district court either stay his case and hold it in
abeyance to allow him the chance to put forth these claims in Texas state court,
or grant another evidentiary hearing.
The district court denied the motion, and upon remand from our prior
panel decision, denied Williams’s request for a COA as to its denial. We must
now determine whether reasonable jurists would debate whether the district
court abused its discretion when it denied Williams’s Rule 59(e) motion. Sw.
Bell Tel. Co., v. City of El Paso, 346 F.3d 541, 549 n.26 (noting that abuse of
discretion standard applies to review of a district court’s denial of a motion to
alter or amend its judgment). We address each of Williams’s arguments in turn.
1. Williams’s Actual Innocence Claim
The district court denied Williams’s actual innocence claim because the
Supreme Court has not definitively created a ground for federal habeas relief
based on actual innocence absent an independent constitutional violation.
Williams argues that because the Supreme Court has assumed, without
deciding, that there may exist a freestanding claim of actual innocence, we
should issue a COA on his Rule 59(e) motion. See House v. Bell, 547 U.S. 518,
545–55 (2006) (describing a “freestanding innocence claim” as hypothetical, but
declining to resolve the question whether “freestanding innocence claims are
possible”). Because Williams’s actual innocence claim sought “to add a new

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No. 08-70046

ground for relief,” we must treat it as a second or successive habeas petition. See
Gonzalez, 545 U.S. at 532.
District courts do not have jurisdiction to entertain a second or successive
habeas application until the applicant “move[s] in the appropriate court of
appeals for an order authorizing the district court to consider the application.”
28 U.S.C. § 2244(b)(3)(A). Because Williams failed to do so, the district court did
not have jurisdiction to consider Williams’s claim of actual innocence. We
therefore dismiss his request for a COA on this ground.
2. Williams’s Procedurally Defaulted and Unexhausted IAC at
Sentencing Claim
In its denial of Williams’s habeas petition, the district court held that
Williams had failed to exhaust and procedurally defaulted his IAC at sentencing
claim. In his Rule 59(e) motion, Williams asserted several arguments for why
the district court should either excuse his procedural default and hear his IAC
claim, or grant a stay and abeyance to allow Williams to exhaust his claims in
Texas state court. The district court held that Williams had neither
demonstrated cause for excusing his procedural default nor had he demonstrated
grounds for granting a stay and abeyance, and refused to grant a COA on these
claims.
In Gonzalez, the Supreme Court held that when a post-judgment 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,” the
motion does not assert a “claim” that would force a court to construe it as a
second or successive habeas petition. 545 U.S. at 532. More specifically, a
petitioner does not make a habeas corpus claim “when he merely asserts that a
previous ruling which precluded a merits determination was in error—for
example, a denial for such reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id. at 532 n.4. We thus hold that we have

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No. 08-70046

jurisdiction to consider Williams’s request for a COA on the district court’s
refusal to excuse his procedural default or to grant a stay and abeyance.
i. Characterization of Williams’s IAC Claim as
Procedurally Defaulted
Before reaching Williams’s arguments for cause to overcome his procedural
default, we note that the district court did not err when it described Williams’s
unexhausted IAC at sentencing claim as procedurally defaulted. “‘Procedural
default . . . occurs when a prisoner fails to exhaust available state remedies and
the court to which the petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims procedurally
barred.’” Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Nobles
v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)) (alteration in original).
Williams has already filed two petitions in Texas state court for post-
conviction relief. Texas courts may not consider the merits of any subsequent
application for post-conviction relief unless:
(1) the current claims and issues have not been and could not have
been presented previously in a timely initial application or in a
previously considered application filed under this article or Article
11.07 because the factual or legal basis for the claim was
unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the
United States Constitution no rational juror could have found the
applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the
United States Constitution no rational juror would have answered
in the state’s favor one or more of the special issues that were
submitted to the jury in the applicant’s trial under Article 37.071,
37.0711, or 37.072.
T EX. C ODE C RIM. P ROC. A NN. art 11.071 § 5(a)(1)–(3) (Vernon 2007). “[A] factual
basis of a claim is unavailable on or before a date described by Subsection (a)(1)
if the factual basis was not ascertainable through the exercise of reasonable

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No. 08-70046

diligence on or before that date.” Id. § 5(e). The TCCA has grafted an additional
requirement on the first prong of 11.071 § 5(a): “to satisfy Art. 11.071, § 5(a), 1)
the factual or legal basis for an applicant’s current claims must have been
unavailable as to all of his previous applications; and 2) the specific facts alleged,
if established, would constitute a constitutional violation that would likely
require relief from either the conviction or sentence.” Ex parte Campbell, 226
S.W.3d 418, 421 (Tex. Crim. App. 2007) (internal footnotes omitted).
If Williams brought his actual innocence claim in a third application for
state post-conviction relief, we find that a Texas court would not likely permit
consideration of the merits. Although Brown’s call and the accompanying
Jenkins story did not surface until the federal district court denied Williams
relief on his § 2254 petition, Williams has known all along whether he shot
Blando. The prior non-existence of Brown’s statement implicating Jenkins in
the shooting did not prevent Williams from asserting his innocence earlier.
Article 11.071 § 5(a)(1) requires that “the current claims and issues have not
been and could not have been presented previously,” and Williams certainly
could have proclaimed his innocence prior to filing his first application for post-
conviction relief.11 Additionally, Williams has made no argument that the
factual basis of his actual innocence claim was “not ascertainable through the
exercise of reasonable diligence.” T EX. C ODE C RIM. P ROC. A NN. art 11.071 § 5(e).
Even if Williams had demonstrated that Brown’s late correspondence and
the accompanying Jenkins story prevented him from asserting his actual

11
Cf. Ex Parte Frazier, No. WR-49164-05, 2006 WL 2519750, at *1 (Tex. Crim. App.
Aug. 31, 2006) (concurring statement) (in the context of a subsequent application based on
witness perjury, stating “Applicant knew about and could have alleged the perjury at that
time, documented his attempts to obtain an affidavit, and invoked the compulsory processes
of the court, requesting a hearing at which to call the witness and place him under oath.
Because the current claim could have been presented in a previously considered application,
Applicant cannot now establish that the factual basis for his claim was unavailable, for
purposes of a second subsequent writ application under Article 11.071, section 5(a)”).

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No. 08-70046

innocence claim earlier, he has failed to assert a prima facie constitutional
violation that would require relief from his conviction. See Ex Parte Campbell,
226 S.W.3d at 421. Although Texas is one of the few jurisdictions to recognize
freestanding claims of actual innocence, see Graham v. Texas Bd. of Pardons and
Paroles, 913 S.W.2d 745, 749 (Tex. App—Austin, 1996, writ dism’d w.o.j.), Texas
courts have held that in order to overcome the Article 11.071 § 5(a)(1) bar, an
applicant must “allege sufficient specific facts that, if proven, establish a federal
constitutional violation sufficiently serious as to likely require relief from his
conviction or sentence.” Ex Parte Campbell, 226 S.W.3d at 422 (emphasis
added). Because the United States Supreme Court has yet to recognize a
freestanding claim of actual innocence, we find that Williams has not
demonstrated that a Texas court would hear the merits of his third application
for post-conviction relief on the grounds of unavailability of the factual basis of
his claim. See House, 547 U.S. at 554–55 (declining the opportunity to recognize
a freestanding innocence claim).
Additionally, Williams cannot demonstrate that a Texas court would reach
the merits of his actual innocence claim based on either of the other two grounds
enumerated in Article 11.071 § 5(a). As discussed at greater length below in the
context of the federal miscarriage of justice standard,12 Williams’s new evidence
does not persuade us that “but for a violation of the United States Constitution
no rational juror could have found [him] guilty beyond a reasonable doubt.” Id.
§ 5(a)(2). 13

12
See generally Haynes v. Quarterman, 526 F.3d 189, 196–97 (5th Cir. 2008) (“[T]he
Texas Court of Criminal Appeals has . . . construed section 5(a)(3) as analogous to the federal
‘actual innocence’ exception to exhaustion.”) (discussing Ex parte Blue, 230 S.W.3d 151, 160–61
(Tex. Crim. App. 2007)).
13
Williams also argues that because his prior state petitions were filed by an attorney
laboring under a conflict of interest, it is “quite likely” that a Texas court would treat
Williams’s third petition as his first. Williams cites no authority for this assertion, and we
have found no case or statute supporting it.

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ii. Actual Innocence of Blando’s Murder as Cause for
Excusing Procedural Default
Williams argues that because new evidence tending to exonerate him from
Blando’s murder has come to light, the district court should review his
procedurally defaulted IAC at sentencing claim. “Federal habeas review of
procedurally defaulted claims is barred ‘unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.’” Hughes v. Quarterman, 530 F.3d 336, 341
(5th Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The
“miscarriage of justice” exception applies where a petitioner is “actually
innocent” of either the offense giving rise to his conviction or “actually innocent”
of the death penalty. See Schlup v. Delo, 513 U.S. 298, 326–27 (1995); Sawyer
v. Whitley, 505 U.S. 333, 340 (1992). Thus, to excuse procedural default,
Williams must “show that ‘a constitutional violation has probably resulted in the
conviction of one who is actually innocent,’” Sawyer, 505 U.S. at 340 (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)), or, in other words, he must
“demonstrate that more likely than not, in light of the new evidence, no
reasonable juror would find him guilty beyond a reasonable doubt.” House, 547
U.S. at 538.
Williams states that a week after the district court entered judgment in
his habeas petition, his counsel received a phone message from David Brown, a
drug treatment sponsor in Houston, Texas, who sponsored an individual named
Jervette Jenkins. Williams’s counsel reported that, as part of Jenkins’s
rehabilitation, Jenkins told Brown that he had killed a police officer in 1999, and
that he knew someone named Jeffrey was sentenced to death for the murder.
Brown, in a handwritten affidavit, stated that he had no reason to lie, that he
thought Jenkins had told him the truth, and that he would help the police in any

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No. 08-70046

way he could. Brown does not know Williams, and to this day, no one has been
able to locate Jenkins.
Brown and Williams both concede that Jenkins’s purported confession
contains several factual inaccuracies, such as the location of the motel where
Blando was shot and the circumstances under which Blando’s murder occurred,
which tends to discredit Jenkins’s claim of guilt.14 In contrast, the State
introduced overwhelming evidence of Williams’s guilt at trial, including (1) the
testimony of two eyewitnesses who stated that they observed Williams shoot
Blando; (2) evidence that when police apprehended Williams, he still wore
Blando’s handcuffs and possessed a gun that matched the bullet extracted from
Blando’s body; (3) Williams’s two separate confessions; and (4) evidence of
Williams’s fingerprints on both the stolen Lexus and Blando’s unmarked Jeep
Cherokee. Most tellingly, at no point has Williams himself ever described a
different shooter.
The Supreme Court has sought to ensure that “the fundamental
miscarriage of justice exception would remain ‘rare’ and would only be applied
in the ‘extraordinary case.’” Schlup, 513 U.S. at 321; see also House, 547 U.S. at
538 (“[I]t bears repeating that the Schlup standard is demanding and permits
review only in the ‘extraordinary’ case.”) (quotation omitted). Williams has not
met that exacting burden. Because Williams failed to demonstrate that
reasonable jurists would debate whether executing Williams would result in a
fundamental miscarriage of justice, we deny Williams’s request for a COA on
this issue.

14
Brown’s affidavit reports that Jenkins stated that he shot Blando after trying to rob
him, when all of the evidence, including Blando’s final communications with dispatch, confirm
that the altercation took place in the context of Blando’s investigation of a stolen Lexus.

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iii. Appellate Counsel’s Conflict of Interest as Cause for
Avoiding Procedural Default
Williams also argues that we should excuse his procedural default because
his appointed state post-conviction counsel labored under an impermissible
conflict of interest. According to Williams, the attorney whom the state trial
judge appointed to prepare Williams’s state habeas application was married to
an attorney in the Harris County District Attorney’s Office. Williams cites
Texas Disciplinary Rule of Professional Conduct 1.06(b) for his argument that
“a lawyer shall not represent a person” when such a conflict exists, and argues
that this conflict should serve as cause for overcoming the procedural default
barring federal consideration of Williams’s IAC at sentencing claim.
Because “[a] state prisoner has no constitutional right to an attorney in
state post-conviction proceedings,” “[w]e have repeatedly held that ineffective
assistance of state habeas or post-conviction counsel cannot serve as cause for
a procedural default.” Matchett v. Dretke, 380 F.3d 844, 849 (5th Cir. 2004).15
Despite Williams’s allegations of an ethical violation on the part of his state
habeas counsel, Williams cannot overcome his procedural default on this ground.
Because reasonable jurists would not debate this conclusion, we deny Williams’s
request for a COA on this issue.
iv. Request for a Stay and Abeyance to Pursue an IAC
Claim in Texas State Court
Alternatively, Williams also asserts that the district court should have
granted a stay and abeyance so that he could exhaust his available remedies in
Texas state court. We review the district court’s denial of a stay and abeyance
for abuse of discretion. See Evans v. Cain, 577 F.3d 620, 623 (5th Cir. 2009).
When a petitioner brings an unexhausted claim in federal court, stay and

15
See also Callins v. Johnson, 89 F.3d 210, 212–13 (5th Cir. 1996) (“[N]o error by
habeas counsel can ever constitute cause for abusing the writ.”).

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No. 08-70046

abeyance is appropriate when the district court finds that there was good cause
for the failure to exhaust the claim; the claim is not plainly meritless; and there
is no indication that the failure was for purposes of delay. Rhines v. Weber, 544
U.S. 269, 277–78 (2005). Because a stay and abeyance has the potential to
“frustrate[] AEDPA’s objective of encouraging finality” and “AEDPA’s goal of
streamlining federal habeas proceedings,” the Supreme Court has stated that
“stay and abeyance should be available only in limited circumstances.” Id. at
277.
Williams has not demonstrated that the district court abused its
discretion. Williams offers his alleged actual innocence and the conflict under
which his state habeas counsel labored as the good cause for his failure to
exhaust his IAC claim in state court, but as discussed above, neither suffices.
Additionally, we have held that when a petitioner is “procedurally barred from
raising [his] claims in state court,” his “unexhausted claims are ‘plainly
meritless.’” Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005). Because the
district court appropriately characterized Williams’s IAC claim as procedurally
defaulted, reasonable jurists would not debate that the district court did not
abuse its discretion when it denied Williams’s request for a stay and abeyance,
and we therefore decline to issue a COA on this issue.
v. Request for Additional Discovery
Williams also moved the district court to allow him discovery and expert
services to pursue his actual innocence claim in federal court. The district court
denied this request, and Williams asserts that the district court abused its
discretion by doing so. Because Williams failed to develop the factual basis of
this claim in state court, he must now overcome AEDPA’s bar against additional
evidentiary hearings in federal court. Specifically, § 2254(2)(A)–(B) states that
a federal court cannot grant an evidentiary hearing unless a petitioner
demonstrates that:

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No. 08-70046

(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim 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.
For the reasons discussed inter alia, the district court did not abuse its
discretion by denying Williams’s request for an evidentiary hearing. Williams
does not argue for relief based on any new rule of constitutional law, and he
could have developed the factual predicate for his actual innocence claim earlier
through the exercise of due diligence. Additionally, as discussed above,
Williams’s actual innocence claim does not convince us that no reasonable
factfinder would have found Williams guilty of Blando’s murder. Reasonable
jurists would not debate this conclusion, and we thus deny Williams’s request
for a COA.
vi. Failure to Prove the Underlying IAC at Sentencing
Claim
In denying his Rule 59(e) motion, the district court found that even if
Williams overcame the procedural default on his IAC at sentencing claim, he had
not demonstrated entitlement to relief on the merits, and we note that the
district court did not err. Williams alleges a Sixth Amendment IAC claim at
sentencing, but has failed to satisfy his burden under Strickland v. Washington,
which held that in order to demonstrate IAC, “[f]irst, the defendant must show
that counsel’s performance was deficient,” 466 U.S. 668, 687 (1984), and second,
that “any deficiencies in counsel’s performance [were] prejudicial to the defense.”
Id. at 692. To prove prejudice, Williams “must show that there is a reasonable

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No. 08-70046

probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”; in other words Williams must
demonstrate “a probability sufficient to undermine confidence in the outcome.”
Id. at 694. Because Williams challenges his death sentence, we must ask
“whether there is a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it independently reweighs
the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.
Williams has not carried his burden. The district court noted that
although the additional mitigating evidence presented at his federal habeas
evidentiary hearing was much more detailed, it “added little substance to the
evidence presented at trial,” and we agree with this assessment. At sentencing,
the jury heard evidence regarding Williams’s alleged cognitive deficiencies,
including his high school IQ test which landed him in the “borderline” range and
testimony that Williams was slow, but not mentally retarded. Williams’s federal
evidentiary hearing resulted in the same, albeit more detailed, picture of
Williams as an individual who demonstrated adaptive deficiencies that one could
attribute either to cognitive or behavioral abnormalities. See Carty v. Thaler,
583 F.3d 244, 264 (5th Cir. 2009) (noting that the petitioner’s disagreement with
her trial counsel’s preparation of mitigation witnesses “boils down to a matter
of degrees—she wanted these witnesses to testify in greater detail about similar
events and traits,” and holding that the petitioner had “not shown any deficiency
related to her proffer of cumulative evidence”).
When compared with the evidence introduced by the State at Williams’s
trial—including evidence that Williams stole a car at gunpoint nine days before
the murder, accosted the female owner of the car, and participated in at least
one other shooting—we cannot say Williams’s counsel’s alleged deficiency

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undermines our confidence in Williams’s sentence. Williams has thus failed to
demonstrate his counsel’s performance at trial was constitutionally deficient.
C. Williams’s Rule 60(b) Motion for Relief from Judgment
Williams argues that the district court erred when it denied his Rule 60(b)
motion, which alleged that the State did not serve him with copies of the SDTs
the State requested, in violation of Rule 45(b)(1). Williams argued that based
on the violations, the district court should have vacated its denial of his petition
for habeas corpus, and ordered the State to (1) provide Williams with copies of
all the SDTs; (2) provide Williams with copies of the documents produced by the
SDTs; (3) file a list of all the SDTs with the court; and (4) allow Williams
additional time to supplement his motion with briefing on prejudice after the
State complied with Williams’s request. Although the district court agreed that
discovery violations had occurred, it concluded that Williams had not
demonstrated entitlement to post-judgment relief under Rule 60, and later
denied Williams’s request for a COA on its denial.
Rule 60(b) enumerates several bases for granting post-judgment relief, two
of which Williams asserts justify granting his motion. Specifically, Williams
argues that the State’s failure to serve him justifies relief under Rule 60(b)(3),
which provides relief for “fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party,” or Rule 60(b)(6), which
provides relief for “any other reason that justifies relief.”
As a threshold matter, we find that because Williams’s 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,” the
motion does not assert a “claim” that forces us to construe the motion as a second
or successive habeas petition. Gonzalez, 545 U.S. at 532. Accordingly, the
district court had jurisdiction to consider the motion.

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Rule 45(b)(1) mandates that if a subpoena “commands the production of
documents, electronically stored information, or tangible things or the inspection
of premises before trial, then before it is served, a notice must be served on each
party.” The State does not dispute that it failed to serve Williams with its SDTs
in compliance with the rule, but argues that its violation does not rise to the
level of misconduct justifying relief from judgment. The district court agreed
with this assessment, and so do we.
To justify granting relief under Rule 60(b)(3), Williams must demonstrate,
by clear and convincing evidence, “(1) that the adverse party engaged in fraud
or other misconduct, and (2) that this misconduct prevented the moving party
from fully and fairly presenting his case.” Hesling v. CSX Transp., Inc., 396 F.3d
632, 641 (5th Cir. 2005). We have held that “Rule 60(b)(3) ‘is aimed at
judgments which were unfairly obtained, not at those which are factually
incorrect.’” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.
1978)).
Rule 60(b)(6) has a similarly high burden. Although we have described
Rule 60(b)(6) as “‘a grand reservoir of equitable power to do justice in a
particular case when relief is not warranted by the preceding clauses,’” id. at 642
(quoting Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir.
1992) (internal quotation marks omitted)), we have noted that “‘[r]elief under
this section is granted only if extraordinary circumstances are present.’” Id.
(quoting Am. Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir.
1993) (internal quotation marks omitted) (alteration in original)). “‘[T]he
decision to grant or deny relief under Rule 60(b) lies within the sound discretion
of the district court and will be reversed only for abuse of that discretion.’” Id.
at 638 (quoting Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.1996) (en
banc) (citations omitted)).

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The district court did not abuse its discretion when it refused to grant
Williams’s motion based on Rule 60(b)(3). Although the State candidly admits
its failure to comply with Rule 45(b)(1), Williams has not demonstrated how the
violation prevented him from fully and fairly presenting his case at his Atkins
evidentiary hearing. He speculates that the SDTs may have turned up
additional favorable information that the State kept from him, but the State
reports that it has now sent Williams copies of the missing SDTs, most of which
requested Williams’s own personal records or correspondence.16 The State
sought information and documents that Williams had equal—if not
greater—access to than the State. Williams has not convinced us, by clear and
convincing evidence, that the discovery violations prevented him from fully and
fairly presenting his case.17
Likewise, Williams has not demonstrated any extraordinary circumstances
justifying relief under Rule 60(b)(6). Although we have no guidance as to what
may constitute an extraordinary circumstance, the Supreme Court has held that
a change in law after a court issues a final judgment does not qualify, see
Gonzalez, 545 U.S. at 536, and our district courts have held that failure to
consider certain extrinsic evidence, Am. Guar, & Liab. Inc. v. Hoefner, No. H-08-
1181, 2009 WL 1011176, at *2 (S.D. Tex. Apr. 15, 2009), the inability to timely

16
According to Williams, the SDTs requested documents such as his prison mail; his
employment records from NAPA Auto Parts, the Trump Casino, and Kroger supermarket; his
financial records; the contents of his prison cell; and his cell phone records.
17
Williams argues that we should adopt the standard used by the Sixth Circuit, in
which “‘prejudice should be presumed[ ] once the moving party has shown by clear and
convincing evidence that misbehavior falling into one or more of the three categories set out
in Rule 60(b)(3) has occurred.’” Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d 1322, 1333
(6th Cir. 2006) (quoting Jordan v. Paccar, Inc., No. 95-3478, 1996 WL 528950, at *8 (6th Cir.
Sept. 17, 1996) (per curiam) (unpublished)). Under the Sixth Circuit’s approach, “[t]he burden
then shifts to the non-moving party ‘to demonstrate by clear and convincing evidence that the
misbehavior which occurred had no prejudicial effect on the outcome of the litigation.’” Id.
(quoting Jordan, 1996 WL 528950, at *8). We decline to alter our own precedent in favor of
the Sixth Circuit’s approach.

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 Case: 08-70046 Document: 00511059846 Page: 31 Date Filed: 03/23/2010

No. 08-70046

file a habeas petition, Jones v. Quarterman, No. H-02-3963, 2008 WL 276383, at
*2 (S.D. Tex. Jan. 29, 2008), and ineffective assistance of counsel, Wells v. United
States, No. 3:07-CV-1152-G, 2007 WL 2192487, at *4 (N.D. Tex. July 27, 2007),
will not suffice either. Williams has not advanced any extraordinary
circumstance rising to the level of those previously rejected, and the district
court did not err by denying his Rule 60(b)(6) motion. Reasonable jurists would
not debate this conclusion, and we thus deny Williams’s request for a COA.
IV. CONCLUSION
After reviewing Williams’s petition and the record before us, we find that
Williams has not justified a grant of COA on any of the issues he raises. We find
that because Williams’s Rule 59(e) claim of actual innocence is properly
characterized as a second or successive petition, the district court did not have
jurisdiction to consider that claim. Because reasonable jurists would not debate
that the district court did not abuse its discretion when it denied Williams’s Rule
59(e) and Rule 60(b) motions as to the other issues he raised, we will not issue
a COA on either of his motions.
DISMISSED and DENIED.

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