Whether the Fifth Circuit erred in its reading of Gonzalez v. Crosby, allowing Rule 60(b) motions to remedy procedural defects in habeas proceedings

QUESTIONS PRESENTED Petitioner played a relatively minor role in a robbery that went horribly wrong, resulting in the deaths of two innocent people. U.S. District Judge Walter S. Smith, Jr. was assigned to Petitioner’s case when it was filed in 1999 and presided over his trial a year later on three capital charges. The proceedings were marked with irregularities from the outset, when Judge Smith, contrary to statue, refused to consult with the Federal Public Defender to ensure that qualified counsel was appointed for Petitioner. Despite this and other errors, the jury recognized Petitioner’s minor role, sparing his life on two of the three capital counts while imposing death on the third. In 2004, Petitioner sought relief from sentence, and his motion under 28 U.S.C. § 2255 was assigned to Judge Smith. For seven years Judge Smith took no substantive action on the case. After that inexplicable delay, he abruptly denied Petitioner’s motion without discovery or a hearing, in an order that misstated the record and ignored affidavits from forensic and other experts that directly undermined the factual basis for Petitioner’s single death sentence and demonstrated his lawyers’ ineffectiveness. The Court of Appeals for the Fifth Circuit then refused a Certificate of Appealability, foreclosing appellate review of both the merits of Petitioner’s claims and the district court’s denial of fact development. Petitioner later became aware of serious allegations about Judge Smith’s fitness: that he had had a severe drinking problem that disabled him as a judge, that he had shown signs of emotional instability, that he had imposed himself sexually on a court staffer, and that he had committed serious professional (or even criminal) misconduct during a judicial investigation into his behavior. The underlying facts remained only partially developed because Judge Smith resigned his position before the investigation was complete, effectively blocking any further inquiry. Invoking Fed. R. Civ. P. 60(b), Petitioner moved to reopen the judgment denying his § 2255 motion. He argued that full development of these troubling facts could establish that during the pendency of that action, Judge Smith was laboring under an impairment that would constitute a “defect in the integrity” of the proceedings, recognized in Gonzalez v. Crosby as a proper basis for a Rule 60(b) motion. 545 U.S. 524, 532 and n.5 (20085). The district court summarily dismissed Petitioner’s Rule 60(b) motion, deeming it a successive application for post-conviction relief. The Fifth Circuit denied a COA, concluding that, under Gonzalez, a Rule 60(b) motion challenging the presiding judge’s fitness during the pendency of a habeas proceeding is “meritsbased” if it argues that the judge’s unfitness is evidenced in part by his unreasonable rejection of the movant’s meritorious claims for relief. ii The following questions are presented. 1. Did the Fifth Circuit err in its reading of Gonzalez, given that five other Circuits read Gonzalez to allow Rule 60(b) motions to remedy a wide range of procedural defects in habeas proceedings, similar to the one alleged by Petitioner here? 2. If a presiding judge’s unfitness qualifies as the sort of “defect in the integrity of the federal habeas proceedings” that would support a Rule 60(b) motion under Gonzalez, may a reviewing court in determining that motion consider the reasonableness of that judge’s prior disposition of the movant’s claims for relief? 3. Did the Fifth Circuit, which to date has never identified any debatable issue in any post-conviction appeal by a death-sentenced federal prisoner, err in denying a COA concerning the district court’s application of Gonzalez to Petitioner’s Rule 60(b) motion? ili