Patrick, et al v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-10644
_______________
JESSE JOE PATRICK,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
March 13, 2002
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jesse Patrick applies for a certificate of ap-
pealability (“COA”) to challenge the denial of
habeas corpus relief. We deny the application.
I.
Patrick was convicted of capital murder and
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
(continued...)
*(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.

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sentenced to death; the conviction was af-
firmed on direct appeal, and the Supreme
Court denied a petition for writ of certiorari.
Patrick applied for and was denied habeas
relief from a state trial court in Texas; the
denial was affirmed by the Texas Court of
Criminal Appeals.
Patrick next filed for habeas relief in federal
district court, which declined to issue a writ
per an opinion and order entered August 22,
2000. On September 11, 2000, Patrick moved
under FED. R. CIV. P. 59 to alter or amend the
judgment, alleging numerous errors in the
opinion and order. Because the motion was
untimely under FED. R. CIV. P. 6(a) and 59, it
ultimately was construed as a FED. R. CIV. P.
60(b) motion for relief from judgment and was
denied on April 17, 2001.1 In the intervening
period, Patrick filed a rule 60(b) motion for
relief from judgment, requesting the court to
vacate and re-enter the order so it would be
timely. On the same day the court denied the
first rule 60(b) motion, it granted the second.
II.
The parties contest the extent to which we
have appellate jurisdictionSSnot jurisdiction to
entertain the application for COA, but jurisdic-
tion over the underlying appeal. If we de-
termine that we are without jurisdiction over
the underlying appeal, we will not grant a
COA. Murphy v. Johnson, 110 F.3d 10 (5th
Cir. 1997) (denial of COA for failing to meet
exhaustion requirement).2
The parties offer differing versions of what
was properly appealed from the district court.
Patrick seeks review of the August 22 opinion
and order, contending that review of all issues
encompassed in the order is proper, because
the grant of the second rule 60(b) motion (on
April 17) rendered his notice of appeal of May
16, 2001, timely under FED. R. APP. P. 4(a)-
(1)(A). The state, though, avers that
jurisdiction over the underlying appeal is
limited to a review of the soundness of the
rulings on the first rule 60(b) motion, because
our precedents require reversal of the grant of
the second rule 60(b) motion.
There is no doubt that Patrick’s rule 59(e)
motion was untimely. Tardy rule 59(e)
motions are properly treated as rule 60(b)
motions. Halicki v. La. Casino Cruises, Inc.,
151 F.3d 465, 470 (5th Cir. 1998). With the
motion so construed, the district court
declined to grant relief under the rule 60(b)
standard for relief from judgment.
Because our resolution of the second rule
60(b) motion may moot the controversy over
the first such motion, we address it first. As
1 Rule 59(e) requires such motions to be filed
within ten days. Rule 6(a) sets out the method for
calculating this ten-day period.
2 In its brief, the state also raises the prospect of
procedural bar to prevent our habeas review of
(continued...)
2(...continued)
Patrick’s claim. The state’s procedural bar argu-
ment is based on Patrick’s alleged failure to de-
velop the factual basis for his ineffective assistance
of counsel claim in state court. 28 U.S.C.
§ 2254(e)(2).
As the state concedes, this argument was not
raised in the district court. Although we may raise
this procedural bar sua sponte in appropriate cir-
cumstances, Smith v. Johnson, 216 F.3d 521, 524
(5th Cir. 2000), we do not find the circumstances
of this case appropriate for sua sponte
consideration. For one thing, because this is an
application for a COA, Patrick has not received
notice the procedural bar would be at issue.

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we have said, the district court granted
Patrick’s second rule 60(b) motion for relief
from judgment and entered a final judgment on
April 17. Patrick timely filed a notice of
appeal from this entry of final judgment. The
question is whether the entry of a new
judgment, effectively resetting the appellate
clock for the substantive issues decided in the
August 22 judgment, was an abuse of
discretion.
Federal Rule of Appellate Procedure 4(a)-
(5)(A)(i) sets a thirty-day limit on motions for
extension of time to file an appeal. Such ex-
tensions may be granted by the district court
on a showing of “excusable neglect.” FED. R.
APP. P. 4(a)(5)(A)(ii). The use of rule 60(b)
to extend the deadline in appellate rule 4(a) is
generally prohibited. United States v. O’Neil,
709 F.2d 361, 372 (5th Cir. 1983); Chick Kam
Choo v. Exxon Corp., 699 F.2d 693, 694 (5th
Cir. 1983).
We recognize that there are cases
permitting a rule 60(b) motion to set a new
date for calculating the time to appeal where
rule 4(a)(5) is not available. See, e.g., Fidelity
& Deposit Co. v. USAFORM Hail Pool, Inc.,
523 F.2d 744, 750-51 (5th Cir. 1975). These
cases, though, appear to rely on a failure of the
part y to receive notice of the entry of
judgment.3
Patrick would have us use rule 60(b) to
circumvent the requirement of rule 4(a)(5).
This we decline to do. Where the “excusable
neglect ” of a party results in failure timely to
file an appeal, the more specific language of
rule 4(a)(5) must govern over the more
general language of rule 60(b). Thus, is cases
such as this, the thirty-day time limit of rule
4(a)(5), not the one-year limit of rule 60(b),
prevails.4 West v. Keve, 721 F.2d 91, 95 (3d
Cir. 1983); JAMES WM. MOORE ET AL.,
MOORE’S FEDERAL PRACTICE § 304.14[5] (3d
ed. 2001).
This conclusion does not doom the entire
application for COA. Patrick’s notice of ap-
peal is still effective, but only as to the order
denying the first rule 60(b) motion and not as
to the original judgment denying habeas relief,
as to which it is untimely.
In that first motion, Patrick raised six is-
sues: (1) Did the district court use an
incorrect standard in reviewing the ineffective
assistance of counsel claim; (2) was Patrick
3 One case that arguably does not fall within
this class is Lewis v. Alexander, 987 F.2d 392 (6th
Cir. 1993). The petitioner in Lewis failed to file a
timely notice of appeal because it was docketed late
by the clerk (thus rendering the notice outside the
thirty-day window of rule 4(a)). Petitioner’s
attorney failed to notice the late docketing until
after the time for filing a rule 4(a)(5) motion had
lapsed. The court, apparently following cases
based on a failure to receive notice of the entry of
(continued...)
3(...continued)
judgment, upheld the decision of the district court
to reset the time for appeal by use of a rule 60(b)
motion. Id. at 396. We join the Eighth Circuit in
refusing to follow this decision. See Zimmer St.
Louis Co. v. Zimmer Co., 32 F.3d 357 (8th Cir.
1994).
4 There is a minor exception to this scheme, not
applicable here. Where the party seeking to appeal
out of time has been prejudiced by a failure to
receive notice of the entry of judgment (or ruling on
a motion), the district court may reopen the time
for appeal, but may only grant such a motion only
if it is made within 180 days of the entry of
judgment (or a ruling) and the conditions regarding
lack of notice are met. FED. R. APP. P. 4(a)(6).
Patrick made no such motion.

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deprived of effective assistance of counsel;
(3) did the court improperly deny Patrick
funds under 21 U.S.C. § 848(q)(9) to develop
his claims of mental illness and childhood
abuse; (4) was he denied due process by the
refusal to submit to the jury a definition of
“deliberate”; (5) is article 37.071 of the Texas
Code of Criminal Procedure unconstitutionally
vague; and (6) did the court’s refusal to define
“deliberately” contribute to the sentence of
death, in violation of the Eighth Amendment?
Patrick also raises, for the first time on appeal,
a challenge to the jury charge at the sentencing
phase of his trial.
III.
“To obtain a COA under § 2253(c), a
habeas prisoner must make a substantial show-
ing of the denial of a constitutional right.”
Slack v. McDaniel, 529 U.S. 473, 483 (2000).
This demonstration “includes showing 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. at 484 (quoting Barefoot v. Estelle, 463
U.S. 880, 894 & n.4 (1983)).
Patrick’s application also must be filtered
through the deference owed a rule 60(b) rul-
ing, which is reviewed only for abuse of dis-
cretion. Aucoin v. K-Mart Apparel Fashion
Corp., 943 F.2d 6, 8 (5th Cir. 1991). This re-
view is narrower than in a direct appeal, be-
cause it is confined to the propriety of the rule
60(b) ruling, not of the underlying action. Id.
To do otherwise would eviscerate the rules for
timely filing of appeals. Thus, to be entitled to
a COA, Patrick must demonstrate a denial of
a constitutional right that is not only
substantial enough to meet the standard of
Slack, but also substantial enough that the
denial of rule 60(b) relief from the original
judgment would be an abuse of discretion.
IV.
Patrick argues that the district court em-
ployed an improper legal standard to evaluate
his habeas petitionSSusing the “reasonable jur-
ists” standard of Drinkard v. Johnson, 97 F.3d
751 (5th Cir 1996). This standard was
explicitly disapproved by the Supreme Court in
Williams v. Taylor, 529 U.S. 362, 410 (2000)
(opinion of O’Connor, J.). Even if the court
applied the incorrect standard, such error is
harmless if the court reached the right result.
Beazley v. Johnson, 242 F.3d 248, 257 (5th
Cir.), cert. denied, 122 S. Ct. 329 (2001).
Thus, our determination of whether the district
court reached the right result on the ineffective
assistance of counsel claim will also settle this
issue.
V.
Patrick claims his counsel was
constitutionally ineffective for failing further to
investigate his psychological condition and for
failing to introduce mitigating evidence of his
abusive childhood. Ineffective assistance
claims are reviewed under Strickland v.
Washington, 466 U.S. 668 (1984), which
requires the petitioner to show both a failure
by counsel that drops below an objective
standard of reasonableness and a resulting
prejudice. Id. at 687. This prejudice must be
sufficient to undermine confidence in the
reliability of the trial. Id.
Patrick attempts to show ineffectiveness on
account of his attorney’s failure to make fur-
ther investigations into his psychological health
and abusive childhood. He claims such
investigations would have uncovered organic
brain damage or psychological problems.
There is no doubt criminal defense attorneys

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have a duty to investigate as part of their ob-
ligation to provide effective assistance. Id. at
691. This duty, however, is limited by the
same reasonableness standard applicable to
other decisions of counsel. Id.
Patrick’s argument on this point is easily
refuted. When extensive psychological testing
was conducted on him more than ten years
after the initial trial, no organic brain damage
was detected.5 The only psychological dis-
orders discerned were depression, anxiety, and
chronic post-traumatic stress. Even with the
benefit of hindsight, counsel’s decision not to
pursue additional psychological testing was en-
tirely reasonable and did not fall below the
threshold of objectively reasonable
competence. Furthermore, even if we were to
assume the decision not to pursue additional
testing was deficient performance, we are not
convinced the result of the trial would have
been different.
Patrick also points to trial counsel’s
decision not to present mitigating evidence of
his abusive childhood and possible mental
illness. Patrick draws an analogy between his
case and Williams v. Taylor, 529 U.S. 362
(2000). Like the trial counsel in Williams,
Patrick’s attorney failed to offer all possible
mitigating evidence at his disposal. Unlike the
petitioner in Williams, however, Patrick has
not uncovered significant potentially mitigating
evidence since trial that counsel should have
discovered by conducting the type of
investigation consistent with the command of
Washington. Thus, even though Patrick’s
counsel may not have provided assistance in
accord with Washington, this failure did not
prejudice Patrick.
VI.
Patrick alleges improper denial of funds to
develop his claims of abuse and mental illness.
A district court is authorized, on finding that
investigative services are “reasonably
necessary” to a habeas petitioner’s defense (to
guilt or punishment), to pay for such services.
21 U.S.C. § 848(q)(9). Patrick contends he
was erroneously denied these funds. We need
not address the merits of this claim, because a
COA is not a prerequisite to appealing the de-
nial of § 848(q) funds. Hill v. Johnson, 210
F.3d 481, 487 n.3 (5th Cir. 2000), cert.
denied, 532 U.S. 1039 (2001).
VII.
Patrick presents three issues regarding the
propriety of the trial court’s handling and use
of the term “deliberately” to describe and eval-
uate his mens rea. Specifically, Patrick alleges
that (1) the trial court’s refusal to submit a
definition of “deliberate” to the jury violated
his right to due process, (2) article 37.071 of
the Texas Code of Criminal Procedure is
unconstitutionally vague, and (3) the trial
court’s refusal to define “deliberate” resulted
in a sentence of death in violation of the
Eighth Amendment.
All of these arguments depend on our find-
ing a constitutional infirmity in the trial court’s
use of the term “deliberate” in a capital case.
Despite Patrick’s repeated characterizations of
the possible problems with the use of
“deliberate,” our caselaw squarely denies any
infirmities in its use.
The refusal to define the term was entirely
appropriate in light of our precedents noting
that “deliberate” has a common-sense meaning
and need not be further elucidated. Thompson
v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir.
1987) (holding that “deliberate” is “sufficiently 5 The physician did, however, opine that further
testing might reveal such damage.

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clear to allow the jury to decide the special
issues on punishment”).6 The Thompson court
also was faced with an Eighth Amendment
claim raised in the context of a challenge to the
use of the word “deliberate.” The court
construed this claim as a general due process
challenge to the fairness of the trial, and denied
habeas relief because “deliberate” has a
common-sense meaning. Id. at 1060. Based
on the reasoning in Thompson, we see no
constitutional problem with § 37.071.7
VIII.
Patrick challenges the jury charge used dur-
ing the sentencing portion of his trial. He
bases this challenge on Robertson v. Cockrell,
279 F.3d 1062 (5th Cir. 2002). There, we
granted habeas relief to a petitioner who had
received a jury instruction almost identical to
that in Patrick’s case. Our panel in turn relied
on Penry v. Johnson (“Penry II”), 532 U.S.
782 (2001), which clarified Penry v. Lynaugh
(“Penry I”), 492 U.S. 302 (1989).8
The only bar to Patrick’s raising this
argument now is our usual rule refusing to
consider arguments not raised in the district
court. North Alamo Water Supply Corp. v.
City of San Juan, 90 F.3d 910, 916 (5th Cir.
1996) (citing Singleton v. Wulff, 428 U.S. 106,
120 (1976)). We recognize an exception to
this rule where “the issue involved is a pure
question of law and a miscarriage of justice
would result from our failure to consider it.”
Id.
The timing of Patrick’s Robertson
argument precludes any suggestion of a
miscarriage of justice. The Supreme Court
granted certiorari in Penry II on November 27,
2000, and issued its opinion on June 4, 2001.
The grant of certiorari was during the
pendency of Patrick’s petition before the
district court; the opinion was handed down
well before Patrick filed his original brief with
this court. His failure to raise an argument
based on Penry II belies any claim he may
have to an exception to our normal appellate
waiver rule.
There is an additional reason Patrick is not
entitled to raise a Penry II argument before
this panel. A Penry claim must be based on
mitigating evidence actually presented, not evi-
dence that merely could have been presented.
Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir.
1999). Patrick has not raised sufficient
mitigating evidence to warrant relief under
Penry II and Robertson. Indeed, his main
contention in support of his ineffective
assistance of counsel claim was his counsel’s
6 See also Nethery v. Collins, 993 F.2d 1154,
1162 (5th Cir. 1993) (same); Milton v. Procunier,
744 F.2d 1091, 1095-96 (5th Cir. 1984) (same).
7 In relevant part, this section reads,
On conclusion of the presentation of the
evidence, the court shall submit the
following three issues to the jury:
(1) whether the conduct of the
defendant that caused the death of
the deceased was committed
deliberately and with the
reasonable expectation that the
death of the deceased or another
would result.
TEX. CODE CRIM. PROC. ANN. art. 37.071(b)(1)
(Vernon 1990). This section has been amended
several times since Patrick’s sentencing. See, e.g.,
1991 Tex. Sess. Law Serv. ch. 838; 1999 Tex.
Sess. Law Serv. ch. 140. 8 Penry v. Lynaugh, 492 U.S. 302 (1989).

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failure to offer mitigating evidence.
The application for a COA is DENIED.

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