Whether a Rule 60(b) motion claiming that habeas counsel's abandonment prevented the consideration of a petitioner's claims should always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005)

QUESTION PRESENTED Congress in 18 U.S.C. §3599 gave indigent state prisoners sentenced to death a right to court-appointed counsel in federal habeas proceedings under AEDPA, 28 U.S.C. § 2254. The district court appointed § 3599 counsel to represent petitioner in this case. Appointed counsel abandoned petitioner. He met with petitioner only once, told petitioner he thought he was guilty, failed to investigate any facts or develop any legal claims, and conducted only one day of legal research. After nearly a year of extensions and virtually no work on the case, counsel filed a sham petition containing seven claims copied and pasted from the petition of another client, Obie Weathers, that contained generic, legally foreclosed challenges to the Texas death penalty scheme. Mr. Weathers’s name even appears in the petition’s prayer for relief. And in response to the State’s answer to the petition he had filed, counsel filed an untimely, twoparagraph reply conceding all seven claims were foreclosed. Petitioner promptly moved pro se for the appointment of new counsel. But it was already too late. The district court denied his pro se motion and, almost immediately thereafter, denied counsel’s habeas petition. Petitioner sought to remedy counsel’s abandonment by filing a Rule 60(b) motion to reopen the judgment. The district court, applying controlling Fifth Circuit precedent, denied petitioner’s motion and denied him a certificate of appealability. The Fifth Circuit affirmed over a concurrence by Judge Dennis, who urged the court to take this case en banc to overrule its precedent. The question presented is: Whether a Rule 60(b) motion claiming that habeas counsel’s abandonment prevented the consideration of a petitioner’s claims should always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005). i)