Reger v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10561

RUSSELL JAY REGER,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-395

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
∗

Russell Jay Reger, Texas prisoner # 747783, is serving a life sentence
following his 1996 conviction of first degree murder. He now moves for a
certificate of appealability (COA) to appeal the dismissal in part and denial in
part of his Federal Rule of Civil Procedure 60(b) motion challenging the district
court’s resolution of his 28 U.S.C. § 2254 application. He also moves for the
certification of questions to the Texas Court of Criminal Appeals. He raises
the following arguments: (1) his Rule 60(b) motion was neither a successive

∗
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 9, 2020

Lyle W. Cayce
Clerk

No. 19-10561
2
habeas application nor an untimely pleading; (2) the visiting trial judge’s
qualifications rendered his state judgment of conviction void; and (3) the
district court erroneously denied his motions for a stay and abeyance, the
appointment of counsel, and an evidentiary hearing.
In his postjudgment motion, Reger sought to use Rule 60(b) to alter the
original § 2254 judgment; therefore, a COA is required to appeal the denial of
Rule 60(b) relief. 28 U.S.C. § 2253(c)(1)(A); see Ochoa Canales v. Quarterman,
507 F.3d 884, 888 (5th Cir. 2007). To obtain a COA under § 2253(c), Reger
“must make a substantial showing of the denial of a constitutional right,”
which includes a showing “that reasonable jurists could debate whether . . . the
[application] should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks and
citation omitted).
Reger’s Rule 60(b) motion attacked not the integrity of the federal habeas
proceedings but the substance of the district court’s habeas resolution by
presenting new claims for collateral relief and by presenting new evidence in
support of claims already adjudicated. See Gonzalez v. Crosby, 545 U.S. 524,
531 (2005). The motion was therefore the functional equivalent of a second or
successive § 2254 application. Id. at 531-32. Consequently, the district court
did not have jurisdiction to consider it without prior authorization from this
court. See 28 U.S.C. § 2244(b)(3)(A); United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000); In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). Accordingly,
Reger has failed to make a “substantial showing of the denial of a
constitutional right,” Slack, 529 U.S. at 483-84, and his motions for a COA and
for certification of questions to the Texas Court of Criminal Appeals are
DENIED. We construe Reger’s motion for a COA with respect to the district

No. 19-10561
3
court’s denial of an evidentiary hearing as a direct appeal of that issue, see
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and AFFIRM.