Case: 17-70017 Document: 00514091315 Page: 1 Date Filed: 07/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-70017 United States Court of Appeals
Fifth Circuit
FILED
TAI CHIN PREYOR, July 27, 2017
Lyle W. Cayce
Petitioner - Appellant Clerk
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CV-857
Before JOLLY, PRADO, and ELROD, Circuit Judges. *
PER CURIAM:**
Tai Chin Preyor was convicted of capital murder and sentenced to death
in 2005. He challenged his conviction and sentence on direct appeal, in state
post-conviction proceedings, and a federal habeas proceeding. No challenges
were successful. On July 17, 2017, ten days before his scheduled execution, he
filed a motion under Federal Rule of Civil Procedure 60, seeking to reopen his
* Judge Prado concurs in the judgment only.
** 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-70017 Document: 00514091315 Page: 2 Date Filed: 07/27/2017
No. 17-70017
federal habeas proceedings under Rule 60(d)(3) (fraud on the court) and/or Rule
60(b)(6) (extraordinary circumstances). He claimed that his former habeas
counsel of record, Brandy Estelle, who had been retained to represent him by
his mother, committed a fraud upon the court by acting largely as a puppet for
Philip Jefferson, a now deceased California attorney who had been disbarred
in 1990, and by concealing Jefferson’s habeas involvement from the court.
Preyor sought to have the district court restore him to the position he was in
before Jefferson and Estelle filed the federal habeas petition on his behalf, so
that he can now assert a new claim that his trial counsel rendered ineffective
assistance by failing to investigate, discover, and present mitigating evidence
of physical and sexual abuse and substance addiction.
On July 24, the district court held that Preyor’s Rule 60 motion
constituted a successive petition for habeas relief under 28 U.S.C. § 2244(b).
Because Preyor had not obtained authorization from this Court to file a
successive habeas petition, the district court held that it lacked jurisdiction to
consider the motion. Alternatively, the district court held that Preyor had not
shown a fraud on the Court that would justify relief under Rule 60(d)(3), nor
had he demonstrated the timeliness and extraordinary circumstances
necessary for relief under Rule 60(b)(6). The district court also denied a
certificate of appealability (COA). Preyor appealed on July 24 and, on July 25,
with a little more than 48 hours before his scheduled execution on July 27, he
filed a motion for a COA. 1
We conclude that jurists of reason would not debate whether the district
court correctly concluded that Preyor’s Rule 60(b) motion is a successive habeas
claim. Nor would reasonable jurists debate the district court’s alternative
1 Preyor has not sought authorization from this Court to file a successive habeas
petition; he has only appealed the district court’s denial of his Rule 60 motion.
2
Case: 17-70017 Document: 00514091315 Page: 3 Date Filed: 07/27/2017
No. 17-70017
holding that Preyor is not entitled to relief under Rule 60(d)(3) and Rule
60(b)(6). We therefore DENY a COA. We also DENY Preyor’s motion for a
stay of execution.
I.
The facts are set forth in our previous opinion and need not be repeated
in detail here. Preyor v. Stephens, 537 F. App’x 412 (5th Cir. 2013). Briefly,
Preyor was convicted and sentenced to death in Texas in March 2005, for the
2004 capital murder of Jami Tackett during the course of committing or
attempting to commit burglary. He stabbed her numerous times, severing
her trachea, jugular vein, and carotid artery. He was arrested on the grounds
of her apartment complex, covered in blood. The jury rejected his claim of self-
defense, convicted him and sentenced him to death.
The procedural history of this case requires thorough consideration,
however, and is set out in detail below.
The Texas Court of Criminal appeals affirmed Preyor’s conviction and
death sentence on direct appeal. Preyor v. State, No. AP-75119, 2008 WL
217974 (Tex. Crim. App. Jan. 23, 2008) (unpublished).
Terry McDonald was appointed to represent Preyor in state post-
conviction proceedings. McDonald filed a state habeas application on behalf of
Preyor in November 2007, raising, among other claims, several claims of
ineffective assistance of trial counsel (IATC), none of which pertained to the
presentation of mitigating evidence at the punishment phase of the trial. The
trial court scheduled an evidentiary hearing.
In the fall of 2007, prior to the evidentiary hearing, and notwithstanding
the fact that Preyor was represented by McDonald, Preyor’s mother hired new
counsel to represent him. According to the affidavit of Preyor’s mother,
submitted in support of his Rule 60 motion in the district court, she hired
Philip Jefferson to represent Preyor. Jefferson allegedly told her that he had
3
Case: 17-70017 Document: 00514091315 Page: 4 Date Filed: 07/27/2017
No. 17-70017
worked in Los Angeles with Johnnie Cochran. He told her that Brandy Estelle,
an attorney from Beverly Hills, California, would sign and file the documents
in the case because he was retired. 2 Estelle, on behalf of Preyor, filed a state
habeas application in the trial court on December 1, 2008, raising five IATC
claims, none of which pertained to the presentation of mitigating evidence at
the sentencing phase of trial.
Both McDonald and Estelle 3 were present at the state habeas
evidentiary hearing on February 9, 2009. In response to questions from
McDonald, Preyor testified under oath at the hearing that his family had
retained Estelle to represent him and that he wished to proceed with the
habeas application filed by Estelle, rather than the one filed by McDonald.
On October 28, 2009, the Texas Court of Criminal Appeals (TCCA)
denied the habeas application filed by McDonald. Ex parte Taichin Preyor, No.
WR 72,660-01, 2009 WL 3474097 (Tex. Crim. App. Oct. 28, 2009). It construed
the filing by Estelle as a subsequent application and dismissed it, pursuant to
Texas Code of Criminal Procedure Article 11.071, Section 5(a), as an abuse of
the writ. Ex parte Taichin Preyor, No. WR 72,660-02, 2009 WL 3474097 (Tex.
Crim. App. Oct. 28, 2009).
Estelle filed another state habeas application on behalf of Preyor in
December 2009, asserting a conflict of interest claim based on trial counsel’s
interactions with the victim’s stepfather during a recess at trial. The
application also raised a claim regarding McDonald’s assistance: it asserted
that before withdrawing or abandoning his client, McDonald made no effort to
either replace his application with the one filed by Estelle, or to supplement
his application with the claims asserted in the application filed by Estelle. On
2In March 2015, Preyor’s mother found out that Jefferson had been disbarred in 1990.
3According to the affidavits filed in support of the Rule 60 motion, Jefferson was also
present at the state habeas evidentiary hearing in 2009.
4
Case: 17-70017 Document: 00514091315 Page: 5 Date Filed: 07/27/2017
No. 17-70017
November 9, 2011, the TCCA dismissed this application as an abuse of the
writ. Ex parte Taichin Preyor, No. WR 72,660-03, 2011 WL 5438390 (Tex.
Crim. App. Nov. 9, 2011).
Estelle filed a federal habeas petition on behalf of Preyor on October 21,
2010. Preyor claimed that trial counsel rendered ineffective assistance by (1)
failing to allow him to testify at trial; (2) failing to investigate and adequately
prepare for a defense at trial; (3) failing to object to the prosecutor’s lecturing
to prospective jurors and use of brainwashing tactics and indoctrination during
voir dire; (4) failing to conduct voir dire regarding racial bias or prejudice; and
(5) making false, inconsistent and confusing representations to the jury in
opening statement and closing argument. He alleged that appellate counsel
was ineffective in failing to present IATC claims on direct appeal. He alleged
that his first state habeas counsel, McDonald, rendered ineffective assistance
by (1) arguing trial strategy in the state writ; (2) failing to produce any
evidence at the evidentiary hearing; (3) abandoning his client by failing to
prepare proposed findings of fact and conclusions of law; and (4) failing to make
a motion for appointment of federal habeas counsel. Estelle filed an amended
petition on behalf of Preyor on December 11, 2010, alleging that trial counsel
had a conflict of interest based on his interaction with the victim’s stepfather
during a trial recess. The petition did not contain any IATC claims pertaining
to the presentation of mitigating evidence at the punishment phase of the trial.
On June 27, 2011, the district court granted Preyor’s motion to proceed
in forma pauperis. On August 23, 2011, Estelle moved in the district court for
appointment under the Criminal Justice Act (CJA). On October 20, 2011, the
district court denied without prejudice the motion for appointment of counsel,
stating that Estelle had not presented facts demonstrating that she was
qualified for appointment under the CJA.
5
Case: 17-70017 Document: 00514091315 Page: 6 Date Filed: 07/27/2017
No. 17-70017
The district court denied the federal habeas petition on June 15, 2012.
It held that most of Preyor’s complaints of IATC were procedurally defaulted
because they were dismissed as abusive by the state court. Alternatively, the
district court addressed the claims on the merits, de novo, and held that they
were without merit.
Estelle, on behalf of Preyor, filed a motion for reconsideration, citing
Martinez v. Ryan, 132 S. Ct. 1309 (2012) (holding that ineffective assistance of
state habeas counsel may constitute cause to overcome the procedural default
of substantial IATC claims). Although Martinez was decided on March 20,
2012, nearly three months before the district court’s decision denying relief,
Estelle, on behalf of Preyor, waited until his motion for reconsideration to
argue, for the first time, that ineffective assistance of initial state habeas
counsel (McDonald) excused his procedural default of the IATC claims. The
district court denied the motion, holding that none of Preyor’s complaints about
the performance of his trial counsel were substantial because he failed to
demonstrate either deficient performance or prejudice.
On October 30, 2012, Estelle, on behalf of Preyor, filed a request for a
COA and supporting brief in this Court. After the State responded, she filed a
reply brief on behalf of Preyor on February 22, 2013. That same day, Estelle
moved in this Court for appointment under the CJA. She explained that she
had been retained by Preyor’s mother and had been representing him in state
and federal court for over three years, but that continuing legal fees were
posing a financial hardship for the mother. She alleged that she was “well
qualified” to represent Preyor and “has over ten years of litigation experience,
including federal cases.” On February 27, 2013, this Court granted the motion
to appoint Estelle as counsel for Preyor under the CJA.
On July 25, 2013, this Court denied Preyor’s request for a COA. Preyor
v. Stephens, 537 F. App’x 412 (5th Cir. 2013). After the Supreme Court denied
6
Case: 17-70017 Document: 00514091315 Page: 7 Date Filed: 07/27/2017
No. 17-70017
certiorari, 135 S. Ct. 34 (2014), Estelle moved to withdraw as counsel for
Preyor, and this Court granted the motion on February 23, 2015.
The district court appointed present lead counsel, Hilary Sheard, to
represent Preyor on March 13, 2015. Ms. Sheard conducted a substantial
amount of work for Preyor over a year. In March 2016, the State set Preyor’s
execution date for July 20, 2016. However, after Preyor’s counsel, Sheard, filed
a motion for release of billing records of his former counsel (Estelle), his
execution date was withdrawn on April 1, 2016.
In April 2016, Sheard submitted a proposed budget to the district court
in which she indicated a desire to continue exploring (1) trial counsel’s
ineffectiveness for failing to present mitigating evidence and (2) procedural
defects in the federal habeas proceedings caused by former counsel Estelle.
After the magistrate judge’s recommendation regarding Sheard’s budget in
June 2016, the district court acted on the recommendation on March 30, 2017.
On March 21, 2017, Preyor’s execution was rescheduled for July 27, 2017—
over one year after his initial execution date. The Chief Judge of this Court
gave final approval of Sheard’s budget on May 12, 2017. Four days later, the
district court appointed Catherine Stetson and Mark Olive to serve as Sheard’s
co-counsel for Preyor.
Other than the delay in the execution date and the budget request, there
were no filings and no court activity for over two years—between March 2015,
when Ms. Sheard took over, and June 27, 2017. On June 27, 2017, one month
before his scheduled execution date, Preyor filed a motion for stay of execution
in federal district court. Preyor v. Massey, No. 5:10-CV-857 (W.D. Tex.). The
district court denied the motion on July 7, 2017, finding that it lacked
jurisdiction to stay the execution. Alternatively, the district court held that a
stay should not be granted because Preyor failed to show a likelihood of success
on the merits, because a stay would impose a substantial injury on the victim’s
7
Case: 17-70017 Document: 00514091315 Page: 8 Date Filed: 07/27/2017
No. 17-70017
family members, and because the balance of equities was not in Preyor’s favor,
as the stay was requested to allow further development of claims that had been
investigated for over two years by Ms. Sheard, a well-qualified and experienced
attorney who had obtained a generous budget from the court.
On July 14, 2017, Preyor filed another motion for stay of execution in the
district court. Three days later—ten days before his scheduled execution—he
filed the Rule 60 motion that is the subject of this appeal.
In addition, on July 18 Preyor filed a subsequent state habeas
application, raising, for the first time, a claim that trial counsel rendered
ineffective assistance by failing to investigate and present mitigating evidence
of physical and sexual abuse and substance addiction (“Wiggins 4 claim”). The
Texas Court of Criminal Appeals held that Preyor failed to satisfy the
requirements of Article 11.071 § 5 and dismissed the writ without reviewing
the merits of his claims. Ex parte Taichin Preyor, No. WR-72,660-04 (Tex.
Crim. App. July 24, 2017). It also denied his motion for a stay of execution. Id.
On July 24, the district court denied Preyor’s Rule 60 motion and denied
a stay of execution. The district court held that it lacked jurisdiction to grant
a stay because there was no pending or potential habeas petition before it. In
the alternative, the district court concluded that a stay of execution was not
warranted for at least three reasons. First, Preyor failed to show a likelihood
of success on the merits of his Rule 60 claim. Second, the court found that the
issuance of a stay would impose a substantial injury to the victim’s family
members, who had already had to endure a lengthy appellate process and
delays in the scheduling of the execution, and who have a substantial interest
4Wiggins v. Smith, 539 U.S. 510 (2003) (holding that a failure to investigate a capital
defendant’s social history and consequent failure to present mitigating evidence regarding
the defendant’s history of sexual abuse and other traumatic childhood events, violated the
defendant’s Sixth Amendment right to effective assistance of counsel).
8
Case: 17-70017 Document: 00514091315 Page: 9 Date Filed: 07/27/2017
No. 17-70017
in obtaining some closure to this case. Third, the district court found that
granting a stay was not in the public interest, because “it would inhibit the
State’s ability to carry out an otherwise valid sentence and impair the finality
of state criminal judgments.”
Having fully laid out the procedural history relevant to the issues before
us, we now turn to consider Preyor’s request for a COA to appeal the district
court’s denial of his Rule 60 motion.
II.
Preyor requests a COA for the following issues:
(1) whether Preyor’s Rule 60 Motion constitutes a successive habeas
petition;
(2) whether (a) a disbarred attorney’s unauthorized practice of law on
behalf of Preyor, concealed from the courts by his lawyer of record, and/or (b)
the same lawyer of record’s seeking duplicative compensation from this Court,
amount to fraud on the court under Rule 60(d)(3), thus warranting relief from
the previous judgment and appeal denying Preyor’s federal habeas petition;
(3) whether Preyor’s former habeas counsel enacted a fraudulent
scheme, including fraudulent inducement of the representation, which
constitutes an extraordinary circumstance warranting equitable relief
pursuant to Rule 60(b)(6); and
(4) whether Preyor's claim for relief under Rule 60(b)(6) was timely filed.
Preyor contends that he has made a substantial showing of the denial of
a constitutional right and is therefore entitled to a COA, because his
underlying Wiggins IATC claim is substantial and the district court’s denial of
Rule 60 relief erroneously deprived him of the opportunity to present that
claim.
This Court has held that a COA is required to appeal the denial of a Rule
60 motion seeking relief from a federal habeas judgment, except “when the
9
Case: 17-70017 Document: 00514091315 Page: 10 Date Filed: 07/27/2017
No. 17-70017
purpose of the motion is to reinstate appellate jurisdiction over the original
denial of habeas relief.” Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th
Cir. 2007). Because Preyor is seeking to set aside the district court’s 2012
judgment denying federal habeas relief, a COA is required before he can
appeal.
A COA may be granted “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A COA
is a “jurisdictional prerequisite” and, therefore, “until a COA has been issued
federal courts of appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “Under
the controlling standard, a petitioner must show 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.” Id. (internal quotation marks and
alterations omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see
also Buck v. Davis, 137 S. Ct. 759, 773 (2017). “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in support of
the claims,” but instead requires “an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336.
In death penalty cases, we resolve any doubts in favor of granting a COA. See
Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
A. Treatment of Rule 60 Motion as Successive Habeas
We consider first whether reasonable jurists could debate the district
court’s determination that Preyor’s Rule 60 motion should be construed as an
unauthorized successive federal habeas petition. The district court had
jurisdiction to consider Preyor’s Rule 60 motion if it attacked, “not the
substance of the federal court’s resolution of the claim on the merits, but some
defect in the integrity of the federal habeas proceedings.” Gonzalez v. Crosby,
10
Case: 17-70017 Document: 00514091315 Page: 11 Date Filed: 07/27/2017
No. 17-70017
545 U.S. 524, 532 (2005). The Court stated that the term “claim” as used in 28
U.S.C. § 2244(b) (the statute imposing requirements on second or successive
habeas petitions) means “an asserted federal basis for relief from a state court’s
judgment of conviction.” Id. at 530. The Court stated:
When no “claim” is presented, there is no basis for
contending that the Rule 60(b) motion should be treated like a
habeas corpus application. If neither the motion itself nor the
federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant’s state
conviction, allowing the motion to proceed as denominated creates
no inconsistency with the habeas statute or rules.
Id. at 533.
The Supreme Court further explained that its use of the term “on the
merits” referred
to a determination that there exist or do not exist grounds entitling
a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and
(d). When a movant asserts one of those grounds (or asserts that
a previous ruling regarding one of those grounds was in error) he
is making a habeas corpus claim. He is not doing so 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.
The Court stated that “[f]raud on the federal habeas court is one example
of such a defect [in the integrity of the federal habeas proceedings].” Id. at 532
n.5. The Court went on to note, however, “that an attack based on the movant’s
own conduct, or his habeas counsel’s omissions, ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second chance to have the
merits determined favorably.” Id. (citation omitted).
If a Rule 60 motion is treated as a successive habeas petition, the
petitioner must obtain from this Court an order authorizing the district court
to consider the application. 28 U.S.C. § 2244(b)(3)(A). A claim presented in a
11
Case: 17-70017 Document: 00514091315 Page: 12 Date Filed: 07/27/2017
No. 17-70017
second or successive habeas petition under 28 U.S.C. § 2254 must be dismissed
unless:
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2244(b)(2).
In the district court, Preyor argued that his request for relief under Rule
60 was not a successive habeas petition because it was solely an attack on a
defect in his prior habeas proceedings—Jefferson and Estelle’s alleged fraud
on the court and their fraudulent inducement of his consent to their
representation of him in state and federal court. The district court rejected
that argument, observing that Preyor spent 23 out of 57 total pages briefing
Wiggins IATC claims that Estelle should have raised in the original federal
habeas proceedings. The court also noted that Preyor announced in the motion
his intention to raise these Wiggins claims once he is “restored” to the position
he was in before Estelle filed his federal habeas petition. In short, he sought
to reopen the habeas proceedings to introduce a new claim and new evidence.
The court concluded that because Preyor was using his fraud allegation as a
means to reopen the proceedings for the ultimate purpose of raising and
litigating his new IATC Wiggins claims, his Rule 60(b) motion was “the very
definition of a successive petition.”
In his COA application, Preyor argues that his Rule 60 motion challenges
procedural defects in the integrity of his federal habeas proceeding and should
12
Case: 17-70017 Document: 00514091315 Page: 13 Date Filed: 07/27/2017
No. 17-70017
not be treated as a successive habeas petition. According to Preyor, his
allegation that his federal habeas counsel, Estelle, committed a fraud on the
court by failing to reveal that she was acting as a puppet for a disbarred lawyer,
and his allegation that his attorneys fraudulently induced his consent to their
representation of him—which amounts to an extraordinary circumstance
warranting relief under Rule 60(b)(6)—are procedural defects that have no
relation to the validity of his underlying state court conviction or this Court’s
resolution of his previous federal habeas petition. He therefore contends that
his Rule 60 motion does not effectively assert a “claim” for federal habeas relief,
and it need not comply with the restrictions on successive habeas petitions.
Preyor further argues that the fact that his motion identified a
compelling Wiggins claim of IATC does not make the motion a successive
petition, because it did so only to demonstrate why the court’s equitable
intervention is appropriate. According to Preyor, the standard is simply
whether the grounds for relief in the Rule 60 motion themselves are “claims”
asserting a “federal basis for relief from a state court’s judgment of conviction,”
such that granting Rule 60 relief would “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 530-31
(citing 28 U.S.C. § 2244(b)).
The district court’s determination that Preyor’s Rule 60 motion is a
successive habeas petition is not debatable. The district court denied his first
federal habeas petition on the merits. Preyor’s Rule 60 motion does not confine
itself to a nonmerits aspect of the first federal habeas proceeding that
precluded a merits determination. Instead, his motion seeks to set aside the
district court’s denial of relief on the merits and to reopen his initial federal
habeas proceeding in order to assert a new claim and to introduce new evidence
in a proceeding begun some seven years earlier. His present attack is based
13
Case: 17-70017 Document: 00514091315 Page: 14 Date Filed: 07/27/2017
No. 17-70017
on his habeas counsel’s failure to raise a Wiggins claim and, in effect, asks for
a second chance to have the merits determined favorably.
In sum, reasonable jurists would not find debatable the district court’s
determination that Preyor’s Rule 60 motion should be treated as a successive
habeas petition because: (1) the federal judgment from which it seeks relief
substantively addresses federal grounds for setting aside his state conviction,
Gonzalez, 545 U.S. at 533; (2) the motion does not merely assert that a previous
ruling which precluded a merits determination was in error, id. at 532 n.4; (3)
his attack is based on former habeas counsel’s omission in failing to present a
Wiggins IATC claim; and (4) his motion expressly acknowledges that he is
seeking to have the previous judgment on the merits of his IATC claims set
aside and to reopen his initial federal habeas proceeding in order to present
the new IATC claim that his former federal habeas counsel omitted. Preyor
has not identified how the alleged fraud impacted the court’s adjudication of
his federal habeas petition, except to complain about Jefferson and Estelle’s
general performance. Federal habeas counsel’s allegedly marginal
performance does not reflect a defect in the integrity of the federal court as it
performs its habeas duties and is not a proper ground for reopening his federal
habeas proceeding. See 28 U.S.C. § 2254(i) (“The ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under
section 2254.”). In sum, we think it not debatable that this Rule 60 motion is
only an attempt to open a door to allow the litigation of a successive claim.
B. Fraud on the Court – Rule 60(d)(3)
Although we have found that the district court’s determination that the
Rule 60 motion is a successive habeas petition is not debatable, we also briefly
consider the district court’s alternative determinations that Preyor has not
satisfied the requirements for relief under Rule 60.
14
Case: 17-70017 Document: 00514091315 Page: 15 Date Filed: 07/27/2017
No. 17-70017
Preyor’s fraud on the court claim is based on two allegations: (1)
Jefferson’s unauthorized practice of law concealed from the courts by his
lawyer of record, Estelle; and (2) Estelle’s request for duplicative payment from
this Court under the CJA.
Rule 60(d)(3) authorizes a court to “set aside a judgment for fraud on the
court” at any time. Rule 60(d)(3) addresses only fraud on the federal habeas
court, not fraud on the state courts, the parties, or their relatives. See Fierro
v. Johnson, 197 F.3d 147, 153-54 (5th Cir. 1999). The standard for “fraud on
the court” is demanding. Jackson v. Thaler, 348 F. App’x 29, 34 (5th Cir. 2009).
“[O]nly the most egregious misconduct, such as bribery of a judge
or members of a jury, or the fabrication of evidence by a party in
which an attorney is implicated, will constitute fraud on the court.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)
(citations omitted). Fraud under Rule 60(d)(3) “embrace[s] . . . the
species of fraud which does or attempts to[] defile the court itself.”
Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.
1989) (quotation omitted).
Id. Fraud on the court also includes “a fraud perpetrated by officers of the
court so that the judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for adjudication.” Wilson
v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) (quotations
omitted). It “requires a showing of an unconscionable plan or scheme which is
designed to improperly influence the court in its decision.” Id. (quotation
omitted). Courts should grant relief for fraud on the court to protect “the
integrity of the courts,” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), and
to “fulfill a universally recognized need for correcting injustices which, in
certain instances, are deemed sufficiently gross to demand a departure from
rigid adherence” to the finality of a judgment. Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 244 (1944).
15
Case: 17-70017 Document: 00514091315 Page: 16 Date Filed: 07/27/2017
No. 17-70017
1. (Conduct of Jefferson & Estelle)
With respect to the allegations that the conduct of Jefferson and Estelle
constituted fraud on the court, the district court held:
Petitioner makes no allegations that fit within the “narrow
concept” of fraud on the court. There has been no showing of any
attempt to defile the court, much less egregious misconduct that
rises to the level of bribery or fabrication of evidence. Instead, the
gist of petitioner’s fraud allegation is that his retained habeas
counsel (Brandy Estelle)—who competently represented petitioner
throughout his federal habeas proceedings—intentionally
misrepresented to the Court that she was petitioner’s sole and lead
attorney when in fact it was her disbarred co-counsel (Philip
Jefferson) who did the majority of the work. Even assuming for
the moment the truth of petitioner’s allegation, it does not
establish that counsel hatched “an unconscionable plan or scheme
. . . designed to improperly influence the court in its decision.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)
(citation omitted). Nor did counsel’s alleged omission preclude the
court from performing “in the usual manner,” as the procedural
history from this Court and the superior courts of appeal will
attest. Wilson, 873 F.2d at 872.
Preyor argues that Estelle and Jefferson perpetrated a fraudulent
scheme to subvert the integrity of the judicial process and undermine the
public’s confidence in the integrity of that process: Jefferson, a disbarred
lawyer, solicited the engagement from Preyor’s mother, developed the case
strategy, crafted the pleadings, and otherwise conducted the federal habeas
proceedings, while Estelle intentionally misrepresented to this Court that she
was the sole attorney for Preyor. Unbeknownst to the district court, therefore,
the advocacy for Preyor was not the work of a licensed attorney, but the result
of Jefferson’s unlicensed and illegal practice of law. Preyor also argues that
Estelle and Jefferson’s fraudulent scheme prevented the district court from
effectively performing in the usual manner its impartial task of adjudging
cases because, in our adversarial system, courts depend on licensed, qualified
attorney representation from each side to sharpen the issues and inform their
16
Case: 17-70017 Document: 00514091315 Page: 17 Date Filed: 07/27/2017
No. 17-70017
decisions. Preyor maintains that, if Estelle had disclosed Jefferson’s
involvement, the district court almost certainly would have used its inherent
authority to prevent Estelle from appearing pro hac vice on Preyor’s behalf.
Reasonable jurists could not debate the district court’s decision that
Preyor has not shown that Jefferson and Estelle hatched an unconscionable
plan for the purpose of improperly influencing the district court in its decision.
Likewise, jurists of reason could not debate the district court’s determination
that their conduct, although reprehensible if true, did not preclude the district
court from performing in the usual manner its impartial task of adjudging the
issues that were presented to it for adjudication. The only fraud on the court
alleged is that neither Preyor nor the court was aware that Jefferson was
disbarred. To the point, the alleged fraud on the court is not that someone
other than Estelle was orchestrating the case; it is not even that the case was
poorly orchestrated. Instead, the alleged fraud on the court is the specific
concealment of Jefferson’s disbarment from the court. It is difficult to see how
this form of concealment affected the judgment of the district court.
Accordingly, Preyor is not entitled to a COA to appeal the district court’s
decision denying relief under under Rule 60(d)(3).
2. Estelle’s Request for Compensation from this Court under the CJA
As we explained in our detailed description of the procedural history of
this case, Estelle was not appointed under the CJA until after she had
completed most of the work in this Court. The only substantive work that she
performed as CJA counsel was the filing of a petition for rehearing in this
Court and the filing of a petition for certiorari and a petition for rehearing in
the Supreme Court of the United States. Her submission of CJA vouchers for
compensation for those tasks did not constitute fraud on the district court. It
most certainly did not affect the judgment that Preyor urges us to set aside.
17
Case: 17-70017 Document: 00514091315 Page: 18 Date Filed: 07/27/2017
No. 17-70017
No reasonable jurist would debate the district court’s decision that such
conduct is is not grounds for relief under Rule 60(b)(3). 5
C. Rule 60(b)(6)
Federal Rule of Civil Procedure 60(b)(6) permits a court to relieve a party
from a final judgment for “any . . . reason that justifies relief.” A Rule 60(b)
motion must be made within a reasonable time unless good cause can be shown
for the delay. Fed. R. Civ. P. 60(c)(1). To obtain relief under Rule 60(b)(6), the
movant must show “extraordinary circumstances” justifying the reopening of
a final judgment. The district court held that Preyor failed to meet his burden
under Rule 60(b) to show that the motion was made within a reasonable time
and that extraordinary circumstances exist that justify the reopening of its
2012 final judgment denying federal habeas relief.
1. Extraordinary Circumstances
The district court held that Preyor had not demonstrated the existence
of “extraordinary circumstances” to justify relief under Rule 60(b)(6). To
establish extraordinary circumstances, Preyor relied on the affidavits of
Preyor’s mother, Preyor’s uncle, Jefferson’s friend and ex-wife, and Jefferson’s
nephew, to argue that Estelle and Jefferson fraudulently obtained Preyor’s
consent to represent him, which ultimately resulted in a disbarred attorney
orchestrating his entire defense as lead counsel. The district court pointed out
that little in the record supports Preyor’s allegation that his consent—as
opposed to the consent of his mother—was fraudulently obtained. The court
further observed that, other than the affidavits of Preyor’s mother and uncle,
there is little, if any, evidence that Jefferson was in fact orchestrating the
entire defense as lead counsel.
5 This Court intends to investigate the claim that Estelle was paid under the CJA for
work for which she had already been paid by Preyor’s mother and will take appropriate action
if it deems it to be necessary.
18
Case: 17-70017 Document: 00514091315 Page: 19 Date Filed: 07/27/2017
No. 17-70017
Preyor argues that Jefferson and Estelle fraudulently induced his
consent to their representation and robbed him of his statutory right to one full
and fair opportunity to bring relevant claims for relief in a valid federal habeas
proceeding, and this constitutes an “extraordinary circumstance” remediable
under Rule 60(b)(6). He contends further that the result of their fraud is that
he was essentially abandoned by them. Relying on Maples v. Thomas, 565 U.S.
266 (2012), and Holland v. Florida, 560 U.S. 631 (2010), he argues that he
cannot be charged with their acts or omissions. He also contends that the
district court disregarded a “mountain of evidence” of Jefferson’s involvement.
We conclude that reasonable jurists could not debate the district court’s
decision that Preyor failed to demonstrate the existence of extraordinary
circumstances to justify the reopening of the judgment denying his federal
habeas claims. As the district court noted, there is little, if any, evidence that
Preyor himself was even aware of Jefferson’s alleged involvement in the case.
Furthermore, Preyor did not request that the district court appoint new
counsel after the district court denied Estelle’s motion for appointment under
the CJA on the ground that she had failed to demonstrate that she was
qualified. Finally, Preyor’s reliance on Maples and Holland is misplaced. In
Edwards v. Davis, this court held that Maples does not establish that
abandonment by counsel in habeas proceedings is a defect in the integrity of
those proceedings in the Rule 60(b) context. 676 F. App’x 298, 305 (5th Cir.
2017). 6
2. Rule 60(b)(6) - Timeliness
The district court held as a further ground for rejecting Preyor’s motion
that it was untimely. The court pointed out that Preyor’s mother became
6 Contrary to Preyor’s assertion, Edwards is not an unpublished decision and is
binding; although it was initially filed as an unpublished opinion, it was published five days
later.
19
Case: 17-70017 Document: 00514091315 Page: 20 Date Filed: 07/27/2017
No. 17-70017
aware of Jefferson’s disbarment in early 2015, as the result of an internet
search. Accordingly, the court concluded that any defect in the integrity of the
proceedings caused by Jefferson’s involvement could have been discovered just
as easily by Sheard almost immediately upon her appointment as counsel for
Preyor in March 2015. Even assuming that Preyor could not have discovered
the basis for a Rule 60 motion until Sheard had conducted an investigation,
the district court held that the motion would still be untimely because in April
2016, when Sheard presented a proposed budget, she indicated she had
researched a potential Rule 60 motion concerning habeas counsels’ alleged
misconduct. The court concluded that, considering the substantial amount of
time, money, and professional assistance devoted to assisting Preyor, Preyor
was dilatory in waiting until less than two weeks before his scheduled
execution to file a motion under Rule 60.
Preyor argues that the fact that his mother learned of Jefferson’s
disbarment in 2015 did not provide the factual basis necessary to support a
claim for relief under Rule 60. He contends that his counsel was required to
investigate the full circumstances of Jefferson’s involvement in the case.
Although counsel promptly began the investigation upon learning of
Jefferson’s disbarment and potential work on the case, Preyor asserts that her
investigation was put on hold for over a year while the court considered her
request for a budget; and once the budget was finally approved on May 12,
2017, counsel advanced the investigation for which funding had been granted.
He therefore asserts that the motion was filed well within the reasonable time
contemplated by Rule 60(c).
Reasonable jurists could not debate the district court’s conclusion that
Preyor did not request Rule 60(b)(6) relief within a reasonable time after
learning of the alleged defect in the integrity of the proceedings resulting from
Jefferson’s involvement in representing Preyor. Preyor’s counsel learned of
20
Case: 17-70017 Document: 00514091315 Page: 21 Date Filed: 07/27/2017
No. 17-70017
Jefferson’s disbarment in 2015. Sheard’s budget request in the district court
in 2016 indicates that she intended to pursue a Rule 60 claim based on the
conduct of prior federal habeas counsel. Because Preyor’s claims are supported
almost entirely by affidavits from family members, which are not cost
prohibitive to obtain, see Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.
2000), his contention that the court’s delay in approval of Sheard’s budget
prohibited him from obtaining evidentiary support for the claim is not
persuasive.
D. Stay of Execution
In determining whether to grant a stay of execution, we consider
(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) . . . the public interest.
Diaz v. Stephens, 731 F.3d 370, 379 (5th Cir. 2013). “[A] stay of execution is
an equitable remedy. It is not available as a matter of right, and equity must
be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” Hill v. McDonough, 547
U.S. 573, 584 (2006). We “may consider the last-minute nature of an
application to stay execution in deciding whether to grant equitable relief.”
Nelson v. Campbell, 541 U.S. 637, 649 (2004).
Preyor’s motion for a stay of execution depends on the availability of Rule
60 relief. See Diaz, 731 F.3d at 379. Because we have held that reasonable
jurists would not debate the district court’s decision that Rule 60 relief is not
available to Preyor, he has not made a strong showing that he is likely to
succeed on the merits of his Rule 60 claim. Id. Further, Preyor’s request for
Rule 60 relief is not timely. It seeks to reopen a judgment entered in June
2012. His present counsel was appointed in March 2015. He did not file his
21
Case: 17-70017 Document: 00514091315 Page: 22 Date Filed: 07/27/2017
No. 17-70017
Rule 60 motion until July 17, 2017, ten days before his scheduled execution.
Simply put, as the district court properly found, Preyor has known of the facts
underlying his Rule 60 motion for two years and has had appointed counsel for
the same time. Still, he waited until two weeks before his execution to bring
the motion. In the light of the State’s significant interest in enforcing its
criminal judgment, there is a strong equitable presumption against granting a
stay where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay. See Edwards v.
Davis, 676 F. App’x at 308; In re Paredes, 587 F. App’x 805, 826 (5th Cir. 2014).
Accordingly, we DENY Preyor’s request for a stay of execution.
III.
To sum up: Preyor has not made a substantial showing of the denial of
a constitutional right. Reasonable jurists could not debate the district court’s
decision that his last-minute Rule 60 motion is actually a successive habeas
petition. Nor could reasonable jurists debate the district court’s alternative
conclusion that Preyor failed to establish that he is entitled to relief under Rule
60(d)(3) and/or Rule 60(b)(6). We therefore DENY his application for a COA
and DENY a stay of execution. 7
7 The motion to place documents under seal is DENIED as moot.
22