Broussard v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40295
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WINDELL BROUSSARD,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
1:98-CV-2053
_________________________
April 27, 2001
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Windell Broussard was convicted of
murdering his estranged wife and her son and
was sentenced to death. He filed a federal
petition for writ of habeas corpus, whereupon
the state moved for summary judgment.
Broussard’s lawyers failed to respond to the
motion, and the court granted summary
judgment. The court denied relief from
judgment under FED. R. CIV. P. 60(b).
Broussard seeks a certificate of appealabili-
ty (“COA”) from that denial, arguing that his
attorneys’ negligence prevented him from fully
and fairly litigating his habeas claims and that
the state court erred in not giving him more
funds to litigate his claims. We deny the
request for COA.
I.
Broussard had two attorneys: Paula Effle,
* 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determined that this opinion should not be
published and is not precedent except under the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.

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an experienced capital habeas litigator, and
Joseph Hawthorne, a capital trial lawyer. Ef-
fle, the lead counsel, handled most of the work
in developing the issues and preparing the pe-
tition. For health reasons, she left her law
practice shortly after the filing of Broussard’s
habeas petition. Unfortunately, she failed to
notify Hawthorne, who assumed that Effle was
taking care of the case and took no steps to
ensure that she was still performing her duties.
Hawthorne received a copy of the motion for
summary judgment but did nothing.
Broussard contends that this negligence
should not be held against him. Rule 60(b)
provides that
[o]n motion and upon such terms as are
just, the court may relieve a party or a par-
ty’s legal representative from a final
judgment, order or proceeding for the
following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect
. . . [or] (6) any other reason justifying
relief from the operation of judgment.
FED. R. CIV. P. 60(b)(1), (6). Broussard
suggests that either the attorneys’ negligence
was excusable or the circumstances justify
relief.
A.
The procedural posture of this petition pre-
sents an analytical difficulty: Broussard has
requested a COA, yet his rule 60(b) relief is
not susceptible to that analysis. A rule 60(b)
motion alleging constitutional grounds for set-
ting aside a conviction may be treated as a suc-
cessive habeas petition under 28 U.S.C.
§ 2255. United States v. Rich, 141 F.3d 550,
553 (5th Cir. 1998). A federal court,
however, may entertain a habeas petition only
on the ground that the prisoner’s confinement
violates the laws, treaties, or Constitution of
the United States. 28 U.S.C. § 2254(a).
Broussard’s motion for relief from final
judgment under rule 60(b) makes no such
claim; he argues only that he “was denied any
opportunity for a full and fair treatment of his
claims,” but he states that “[t]his is not a con-
stitutional claim per se.” Even if Broussard
possibly could have raised a due process claim
under the Fourteenth Amendment, his disa-
vowal of the constitutional nature of his claim
precludes such a construction; he never even
uses the term “due process.” Thus, because he
alleges no constitutional violation, this claim is
no basis for habeas relief, so we deny COA on
this issue.
B.
We also may analyze Broussard’s claim for
rule 60(b) relief as an ordinary request for
relief from judgment. Rule 60(b) may apply in
habeas proceedings, Gray v. Estelle, 574 F.2d
209, 214 (5th Cir. 1978), without being
subject to the successive petition restrictions
of the AEDPA, see Randall S. Jeffrey,
Successive Habeas Corpus Petitions and Sec-
tion 2255 Motions after the Antiterrorism and
Effective Death Penalty Act of 1996:
Emerging Procedural and Substantive Issues,
84 MARQ. L. REV. 43, 66 (2000).
We review a rule 60(b) motion for abuse of
discretion. Halicki v. La. Casino Cruises,
Inc., 151 F.3d 465, 470 (5th Cir. 1998). To
prevail, Broussard must show either that the
attorney’s failure to respond to the motion for
summary judgment was excusable neglect un-
der rule 60(b)(1) or an extraordinary
circumstance justifying relief under rule
60(b)(6). See id.; Ackermann v. United States,
340 U.S. 193, 202 (1950). The provisions are
mutually exclusive: If a part y is partly to
blame for the delay, and the motion is brought,

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

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In its thorough opinion, the district court
carefully examined each of Broussard’s claims
but concluded that each was either
procedurally barred or without merit or both.3
Broussard presented not one close legal
question on which additional argument could
have affected the outcome. Cf. Gray, 574
F.2d at 214. “It is not enough that the
granting of relief might have been permissible,
or even warrantedSSdenial must have been so
unwarranted as to constitute an abuse of
discretion.” Seven Elves, 635 F.2d at 402.
Because no substantial injustice resulted, the
district court did not commit reversible error.
III.
In his rule 60(b) motion, Broussard avers
that the state should have provided his lawyer
with more money to investigate his habeas
claims. This portion of the request for COA
should be analyzed as a successive habeas
petition. See Rich, 141 F.3d at 551. Although
he does not say so explicitly, Broussard seems
to suggest that the additional funds would
have helped him to develop the factual record
through evidentiary hearings. He does not
identify specific factual questions that were in-
adequately developed by the state court, but
he argues that his claims were “denied a full
and fair hearing.”
In its opinion, the district court indicates
that the state conducted an evidentiary hearing
on the application, and Broussard has not
identified any specific way in which it was
defective. Even assuming arguendo that
Broussard has raised a constitutional claim un-
der the Due Process Clause of the Fourteenth
Amendment, he has not tied this claim to any
previous claim in his habeas petition. Thus,
we treat it as a new claim.
A new claim presented in a successive
habeas petition shall be dismissed unless it
contains
(1) newly discovered evidence that, if
proven and viewed in the light of the
evidence as a whole, would be sufficient
to establish by clear and convincing evi-
dence that, but for the constitutional er-
ror, no reasonable factfinder would have
found the movant guilty of the
underlying offense; or
(2) a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable.
28 U.S.C. § 2255. Broussard has not even
suggested that he relies on a new rule of
constitutional law, that he was previously
unaware of the alleged insufficiency of the
funds to pursue his claim, or that the additional
funds would have proven his innocence. Thus,
we cannot grant a COA on this claim.
Accordingly, the request for COA is
DENIED.
3 Accord Halicki, 151 F.3d at 471 (“Our case-
law allows for more leniency in opening up default
judgments, not those in which the court has had a
chance to evaluate the merits.”).

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