Case: 22-70009 Document: 00516655477 Page: 1 Date Filed: 02/24/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-70009
FILED
February 24, 2023
Lyle W. Cayce
Richard Vasquez, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Application for Certificate of Appealability from the
United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-59
Before Haynes, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
Richard Vasquez moves for a certificate of appealability (“COA”) to
seek review of the district court’s denial of his Rule 60(b) motion for relief
from judgment in his federal habeas case. The district court denied
Vasquez’s motion, ruling that it was actually an unauthorized successive
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-70009
habeas petition. We conclude that reasonable jurists would not debate this
determination, and we therefore DENY Vasquez’s application for a COA. 1
I.
In 1999, a Texas jury convicted Vasquez of capital murder for killing
his girlfriend’s four-year-old daughter, Miranda. During trial, the state
prosecutors introduced testimony that Miranda: (1) was severely sexually
assaulted before she died; (2) suffered blows to the head that were equivalent
in force to being in a 65-mile-per-hour car accident; and (3) had cocaine levels
in her blood that were double the lethal amount for an adult. Vasquez
appealed his conviction and death sentence to the Texas Court of Criminal
Appeals (“TCCA”), which affirmed. The TCCA also denied his petition
for state habeas relief.
In 2006, Vasquez petitioned for federal habeas relief under 28 U.S.C.
§ 2254. In 2008, the district court denied the requested relief but granted a
COA on Vasquez’s claim that he received ineffective assistance of counsel at
trial and on appeal. We affirmed, and the Supreme Court denied certiorari
review. See Vasquez v. Thaler, 389 F. App’x 419, 432 (5th Cir. 2010) (per
curiam), cert. denied, 563 U.S. 991 (2011). His petition did not directly
challenge the aforementioned trial evidence; nor did the State specifically
rely on that evidence in its response to Vasquez’s petition.
In 2015, Vasquez filed a successive state habeas application
challenging the evidence related to Miranda’s brain injury and the reports of
cocaine in her system. He argued that recent developments in forensic
1
Vasquez subsequently filed a motion for authorization to file a successive petition
pursuant to 28 U.S.C. § 2244(b)(3)(A). In re Vasquez, No. 23-40079 (5th Cir. 2023). That
motion remains pending, and this opinion addresses only the request for a COA in this case
regarding the district court’s denial of Vasquez’s Rule 60(b) motion.
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No. 22-70009
science had cast doubt on the validity of that evidence. The TCCA disagreed
that relief was warranted and denied Vasquez’s application. Ex parte
Vasquez, No. WR-59,201-03, 2021 WL 3746008, at *1 (Tex. Crim. App. Aug.
25, 2021).
In 2022—a decade after the conclusion of his federal habeas case—
Vasquez returned to federal court and filed a motion for relief under Rule
60(b) of the Federal Rules of Civil Procedure. He urged the district court to
reconsider his habeas petition, asserting that the initial judgment was
procured through fraud. The district court disagreed. By order entered on
July 11, 2022, the district court denied Vasquez’s motion, concluding that it
lacked jurisdiction because the motion was, in substance, an unauthorized
successive habeas petition. The court ruled, in the alternative, that Vasquez
failed to show extraordinary circumstances warranting Rule 60(b) relief.
After the district court denied Vasquez a COA, Vasquez moved for a COA
from this court. 2
II.
A COA is generally required to appeal a district court’s denial of a
Rule 60(b) motion for relief from a federal habeas judgment. See Hernandez
v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (per curiam). To obtain a COA,
a movant must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–84
(2000). A movant can satisfy this standard by “demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
2
Around the same time as this appeal, Vasquez appealed the district court’s July
8, 2022, dismissal of his claim under 42 U.S.C. § 1983 alleging that he had been denied due
process. Vasquez v. Collier, No. 22-70008 (5th Cir. 2022). Vasquez moved to voluntarily
dismiss that appeal before any decision by this court; the dismissal has been granted.
3
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claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003); see Slack, 529 U.S. at 484.
In this context, Vasquez must establish that reasonable jurists could
debate whether the district court correctly construed his Rule 60(b) motion
as a successive habeas petition. The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) imposes strict limitations on successive habeas
petitions. As a result of the difficulty in being able to file those petitions, state
prisoners occasionally “use Rule 60(b) motions to evade AEDPA’s
limitations on successive habeas petitions.” Jackson v. Lumpkin, 25 F.4th
339, 340 (5th Cir. 2022). So, Rule 60(b) motions that actually present habeas
“claims” must be “treated as successive habeas petitions subject to the
strictures of” 28 U.S.C. § 2244(b). Id. Otherwise, “use of Rule 60(b) would
impermissibly circumvent the requirement that a successive habeas petition
be precertified by the court of appeals as falling within an exception to the
successive-petition bar.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
Based on these concerns, the Supreme Court has guided that a federal
district court only has jurisdiction to consider a Rule 60(b) motion in habeas
proceedings if the motion attacks “some defect in the integrity of the federal
habeas proceedings,” and “not the substance of the federal court’s
resolution of a claim on the merits.” Id. One example of such a defect is
“[f]raud on the federal habeas court.” Id. at 532 n.5. On the other hand, if a
Rule 60(b) motion advances a new claim or attempts to attack the federal
court’s previous resolution of a claim on the merits, then the motion will be
treated as a successive habeas petition. Id. at 532–33.
III.
Vasquez urges that his Rule 60(b) motion was not a disguised
successive habeas petition because it attacked a defect in the federal
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proceedings. He relies on a “fraud on the court” theory. To support this
theory, Vasquez contends that the state trial prosecutors relied on “false
evidence”—i.e., the purportedly scientifically invalid evidence of Miranda’s
brain injuries and high levels of cocaine in her system—to procure his
conviction. Per Vasquez, that evidence has since been invalidated by recent
developments in forensic science. So, Vasquez argues that the State
committed fraud on the court when it relied on that evidence here in
responding to his federal habeas petition. He urges that the fraud impaired
the district court’s ability to fairly adjudicate his ineffective assistance of
counsel claim. Thus, he reasons that this “fraud” moves his challenge into
the proper scope of a Rule 60(b) motion. The district court rejected
Vasquez’s theory, and we conclude that jurists of reason would not disagree
on or debate this contention.
To start, fraud on the federal court is a very difficult standard to meet.
Generally, a petitioner must “show an unconscionable plan or scheme which
is designed to improperly influence the court in its discretion.” Fierro v.
Johnson, 197 F.3d 147, 154 (5th Cir. 1999) (quotation omitted). We’ve
instructed then, that fraud on the court is limited to claims of “only the most
egregious misconduct.” Id. (quotation omitted). Examples include “bribery
of a judge or members of a jury, or the fabrication of evidence by a party in
which an attorney is implicated.” Id. (quotation omitted). Conversely, less
egregious misconduct, such as nondisclosure, generally will not suffice. See
id.; see also First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir.
1996). Importantly, though, we are only concerned with conduct of the
parties in the federal proceedings. Fierro, 197 F.3d at 153–54.
Here, Vasquez’s fraud theory centers entirely on purportedly false
evidence used by the prosecution at the state trial. His contentions here are
that the State’s continued reliance on that evidence constituted fraud on the
federal court. But we have long held that “alleged fraud by the state trial
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prosecutor” is insufficient to “establish fraud on the federal court.” See Lave
v. Davis, 655 F. App’x 255, 259 (5th Cir. 2016) (per curiam) (emphasis
added); see also Fierro, 197 F.3d at 153–54 (“[I]t is important to keep in mind
that in reviewing the district court’s denial of the motion to vacate, we deal
only with allegations of fraud on the federal courts, not any fraud that may
have been perpetrated upon the state courts.”). As a result, jurists of reason
thus could not debate that the federal proceedings did not involve fraud.
In sum, we conclude that reasonable jurists would not debate that
Vasquez failed to establish fraud on the federal court. Consequently,
reasonable jurists would not debate the propriety of the district court’s ruling
that Vasquez’s Rule 60(b) motion was an unauthorized successive habeas
petition.
Accordingly, IT IS ORDERED that the motion for a COA is
DENIED.
6