Whether a Rule 60(b) motion alleging abandonment by counsel can attack a defect in the integrity of habeas proceedings and excuse compliance with AEDPA's statute of limitations when counsel fails to meaningfully represent a capital defendant's interests

and prepare the petition for filing. Additionally, the undersigned counsel have a number of other pending matters that will interfere with counsel’s ability to file the petition on or before Monday, July 24, 2023. 4. This case concerns an important issue: Whether a Rule 60(b) motion alleging abandonment by counsel can, at least in some instances, attack a defect in the integrity of the habeas proceedings. 5. Mr. Gamboa was convicted and sentenced to death for the murder of two individuals during a robbery at Taco Land, a bar in San Antonio, Texas. Following the exhaustion of his state post-conviction process, Mr. Gamboa sought to petition for federal habeas corpus. The federal habeas statute provides that capital defendants are entitled to court-appointed counsel. So in 2015, Mr. Gamboa filed a motion seeking appointment of counsel under 18 U.S.C. § 3599 to prepare a federal habeas petition. The district court appointed counsel to represent Mr. Gamboa and set a deadline to file a habeas petition. Over the next several months, the court-appointed attorney moved three times for an extension of time to file Mr. Gamboa’s habeas petition, seeking the full one-year limitations period under AEDPA, 28 U.S.C. § 2244(d)(1). 6. When he finally filed a petition, the court-appointed attorney copied claims from another client’s petition wholesale and pasted them without change into Mr. Gamboa’s petition. So complete was counsel’s failure to tailor the argument to Mr. Gamboa’s case that the habeas petition even asked for relief for that other client. After discovering what his counsel had done, Mr. Gamboa wrote a pro se letter to the court moving for different counsel. The district court denied the change-of-counsel motion for failing to comply with the local rules and, one month later, dismissed the habeas petition. 7. Mr. Gamboa then moved under Rule 60(b), arguing that the abandonment by his counsel was an extraordinary circumstance that should have allowed him to reopen the judgment and file a real habeas petition. The district court denied the motion, holding that Mr. Gamboa’s 60(b) motion was in reality an unauthorized successive habeas petition, and denied Mr. Gamboa a certificate of appealability. Gamboa v. Davis, 782 F. App’x 297, 299 (5th Cir. 2019). 8. Mr. Gamboa, represented by new counsel, moved for a certificate of appealability in the Fifth Circuit. Jd. A panel of the Fifth Circuit denied the motion, holding that controlling Fifth Circuit precedent foreclosed Mr. Gamboa’s claim because, in the Fifth Circuit, “the alleged abandonment of ... habeas counsel” is always a successive habeas claim and not a valid basis for a Rule 60(b) motion. Jd. at 300-01 (quoting In re Edwards, 865 F.3d 197, 204 (5th Cir. 2017)). 9. Judge Dennis specially concurred to express his view that controlling circuit precedent should have been reconsidered and overruled in this case because a Rule 60(b) motion alleging abandonment by counsel can, in circumstances like these, where the abandonment prevents the district court from ever considering the petitioner’s claims on the merits, be used to attack a defect in the integrity of the habeas proceedings. Id. at 30104 (Dennis, J., specially concurring). “[B]ut for” controlling circuit precedent, Judge Dennis wrote, “Gamboa’s Rule 60(b) motion would not be an unauthorized successive habeas petition.” Zd. at 304. 10. As you wrote in your concurrence in Holland v. Florida, “attorney misconduct that is not constructively attributable to the petitioner” is a valid ground for excusing otherwise-binding provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d), like the statute of limitations. 560 U.S. 631, 659 (2010) (Alito, J., concurring in part and concurring in the judgment). As you explained: “Common sense dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of