Whether a Rule 60(b) motion arguing that a procedural defect affected the district court's determination of the merits of the claims in a federal habeas petition is a proper 60(b) motion or an improper successive habeas petition?

QUESTION PRESENTED In denying Mr. Wardlow’s federal habeas petition, the district court ruled that his claims were procedurally barred but also without merit. The basis for the procedural bar was removed three years later by the Texas Court of Criminal Appeals when it reversed its procedural dismissal of Wardlow’s initial state habeas application. Mr. Wardlow returned to federal district court on a Fed. R. Civ. Proc. 60(b) motion arguing that the procedural bar ruling had caused the court to give perfunctory review to the merits of his claims. The district court held that the motion was a successive petition. On appeal, the Fifth Circuit agreed with the district court, without undertaking any analysis, or remanding to he district to conduct any analysis, of whether the procedural bar ruling did impact the district court’s determination of the merits. These proceedings give rise to the following Questions: 1. Whether a Rule 60(b) motion arguing that a procedural defect affected the district court’s determination of the merits of the claims in a federal habeas petition is a proper 60(b) motion or an improper successive habeas petition? 2. Whether the conflicting answers given to this question by the United States Courts of Appeals for the Fifth and Tenth Circuits require resolution by this Court? i PROCEEDINGS DIRECTLY RELATED TO THIS CASE State of Texas v. Billy Joe Wardlow, No. CR12764, 76" District Court of Titus County, Texas (judgment February 11, 1995) (trial proceeding) Wardlow v. State, No, 72,102 (Tex.Crim.App. 1997) (unpublished) (direct appeal) Ex parte Wardlow, No. WR-58,548-01 (Tex.Crim.App.) (unpublished) (initial state habeas corpus) Wardlow v. Director, 2017 WL 3614315 (E.D.Tex. 2017) (federal habeas corpus) Wardlow v. Davis, 750 Fed. Appx. 374 (5" Cir. 2018) (certificate of appealability application) Wardlow v. Davis, __ U.S. ___, 140 S.Ct. 390 (2019) (petition for writ of certiorari) Ex parte Wardlow, 2020 WL 2059742 (Tex.Crim.App. 2020) (reconsideration of initial state habeas corpus application) Wardlow v. Texas, No. 19-8712 Petition for Writ of Certiorari, pending (U.S.) Wardlow v. Texas, No. 19-8835 Petition for Writ of Certiorari, pending (U.S.) Wardlow v Davis, No. 4:04-cv-00408, Order of Transfer (E.D.Tex. June 30, 2020) Wardlow v. Davis, No. 20-70012, Memorandum Opinion and Order (5" Cir. July 6, 2020) ii