IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40690

JAVIER OCHOA CANALES

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas, Corpus Christi

On Petition for Rehearing En Banc

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:

Javier Ochoa Canales filed a Petition for Rehearing En Banc seeking

rehearing of this court’s denial of his motion for reconsideration of the order

denying his motion for a certificate of appealability (“COA”). Canales sought

authorization to appeal the district court’s denial of his Fed. R. Civ. P. 60(b)

motion seeking relief from an April 18, 2001 judgment dismissing his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. Treating the Petition for Rehearing

En Banc as a petition for panel rehearing, itis ordered thatthe petition for panel

rehearing is DENIED. No member of this panel nor judge in regular active

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2007

Charles R. Fulbruge III

Clerk
No. 06-40690

2

service on the court having requested that the court be polled on Rehearing En

Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is

also DENIED. We write to explain the denial because this court’s unpublished

decisions are in conflict with respect to whether a COA is needed to appeal the

denial of a Rule 60(b) motion in a habeas case.

I.

In 1994, Canales was convicted by a Texas jury for aggravated sexual

assault of a child and was sentenced to twenty years in prison. The Texas

Thirteenth District Court of Appeals affirmed the conviction in December 1995.

Canales did not immediately file a petition for discretionary review (“PDR”).

In May 1998, Canales filed a 207-page pro se state habeas application,

raising numerous grounds for relief, including a claim that trial counsel had

been ineffective for failing to advise him of the outcome of his direct appeal. The

state trial court ordered Canales to file a new brief limited to thirty pages and

two issues (ineffective assistance of counsel and prosecutorial misconduct for

failing to reveal exculpatory evidence). Canales, represented by appointed

counsel, filed an amended application in compliance with the trial court’s order.

In March 1999, the Texas Court of Criminal Appeals granted Canales an

out-of-time PDR because of counsel’s ineffective assistance on direct appeal. The

court therefore restored Canales’s direct appeal and held that his remaining

substantive claims were premature. In October 1999, the Texas Court of

Criminal Appeals denied Canales’s PDR. Canales did not seek certiorari in the

Supreme Court of the United States.

On October 4, 2000, Canales filed a federal habeas petition in which he

claimed that (1) the evidence was insufficient, (2) the trial court gave an illegal

jury instruction, (3)the indictment was impermissibly amended, (4) counsel was

ineffective in numerous respects, (5) various rules of evidence and habeas

statutes are unconstitutional, and (6) a conviction based on testimony from only
No. 06-40690

3

one witness violates due process. On April 18, 2001, the district court dismissed

the petition without prejudice for failure to exhaust state court remedies.

Canales did not appeal that decision.

On November 26, 2001, Canales filed a second state habeas application,

which the Texas Court of Criminal Appeals dismissed without written order on

September 11, 2002.

On October 17, 2002, Canales moved to reinstate his § 2254 petition on the

ground that he had exhausted his state remedies. On November 21, 2002, the

district court denied the motion to reinstate, reasoning that because Canales’s

petition had been denied without prejudice for failure to exhaust, Canales could

file a new petition without seeking permission from this courtto file a successive

petition.

On December 24, 2002, Canales filed a second § 2254 petition in the

district court. The district court applied equitable tolling for the time that

Canales’s first § 2254 petition was pending, but determined thatthe petition was

still time-barred and dismissed it on September 18, 2003. This court denied

Canales a COA on April 15, 2004, and the Supreme Court denied certiorari on

October 4, 2004.

Over six months later, on April 25, 2005, Canales filed in the district court

a Fed. R. Civ. P. 60(b) motion, seeking relief from the April 18, 2001 judgment

dismissing his original § 2254 petition. Canales argued that (1) his first § 2254

petition should not have been dismissed for failure to exhaust because there was

an absence of available state corrective process insofar as he could not assert his

legal claims in his second state habeas application, (2) the magistrate judge’s

original recommendation to dismiss the petition without prejudice gave the

district court jurisdiction to grant relief, and (3) the district court never lost

jurisdiction over his case because there had never been a final judgment

adjudicating the merits of his claims. The district court denied the Rule 60(b)
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motion and denied him a COA. Canales sought a COA from this court to appeal

the district court’s denial of his Rule 60(b) motion. A member of the panel

denied the COA and the panel denied Canales’s motion for reconsideration. 

II.

In his petition for rehearing, Canales argues that a COA is required to

appeal the denial of a Rule 60(b) motion only where a petitioner is seeking to file

a successive habeas petition or its functional equivalent. He contends that his

Rule 60(b) motion attacked only the dismissal of his claims as unexhausted

and/or untimely, which is distinct from an attack on the merits of his habeas

claims and, therefore, his Rule 60(b) motion is not the functional equivalent of

a successive habeas petition. He contends further that our decision requiring

him to obtain a COA to appeal the denial of his Rule 60(b) motion is in conflict

with other decisions holding that a COA is unnecessary to appeal the denial of

a Rule 60(b) motion when the underlying habeas petition was dismissed as timebarred. Owens v. Quarterman, 234 F. App’x 229 (5th Cir. July 5, 2007); Dillard

v. Quarterman, 2007 WL 1879149 (5th Cir. June 28, 2007); Wilson v. Waller,

2007 WL 1855371 (5th Cir. June 26, 2007).

In Dunn v. Cockrell, 302 F.3d 491 (5th Cir. 2002), this court held that a

COA was not needed for Dunn to appeal the denial of a Rule 60(b) motion

pertaining to the earlier denial of a habeas corpus petition. Id. at 492. In his

Rule 60(b) motion, Dunn did not challenge any aspect of the district court’s

ruling, nor did he seek to raise new habeas claims. He sought only to have his

final judgment reinstated so that he could file a timely notice of appeal. Id. at

493 (“the sole purpose of Dunn’s 60(b) motion is to achieve an extension of the

time in which to file a notice of appeal”). This court held that “[a]s this case

presents only Dunn’s appeal from the denial of his 60(b) motion, and not an

appeal from the merits of his habeas petition, no [COA] is required at this time.”

Id. at 492. The court noted, however, that “this case does not present a situation
No. 06-40690

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in which the petitioner is using Rule 60(b) to amend or alter the judgment of a

first habeas proceeding, in which case the Rule 60(b) motion should be treated

as a successive habeas petition.” Id. at 492 n.1.

At the time Dunn was decided, this court construed all Rule 60(b) motions

in habeas cases as attempts to file successive habeas applications. See, e.g.,

United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (“We agree that courts

may treat motions thatfederal prisoners purportedly bring under Rule 60(b), but

which essentially seek to set aside their convictions on constitutional grounds,

as § 2255 motions.”); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999) (“Our

own court and other circuit courts have decided that Rule 60(b) motions should

be construed as successive habeas petitions governed by the AEDPA’s

provisions.”); Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir. 2002) (“a motion

under Rule 60(b) is the equivalent of a second or successive habeas petition”).

In 2005, the Supreme Court held that district courts have jurisdiction to

consider Rule 60(b) motions in habeas proceedings so long as the motion

“attacks, not the substance of the federal court’s resolution of a claim on the

merits, but some defect in the integrity of the federal habeas proceedings.”

Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). In other words, a Rule 60(b)

motion that attacks only a defect in the integrity of the federal habeas

proceedings should not be treated as a successive habeas application. The

Supreme Court noted that many courts of appeals “have construed 28 U.S.C. §

2253 to impose an additional limitation on appellate review by requiring a

habeas petitioner to obtain a COA as a prerequisite to appealing the denial of a

Rule 60(b) motion.” Id. at 535 & n.7.

Canales argues that “Crosby dictates that where, as here, a Rule 60(b)

motion is intended simply to allow the federal petition to be heard on the merits,

the movant is allowed an appeal as of right to any denial of that motion.”

Petition for Rehearing En Banc at 8. Crosby, however, does not support that
No. 06-40690

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proposition. Instead, it holds only that a Rule 60(b) motion is not to be treated

as a successive habeas petition if the motion attacks a defect in the integrity of

the federal habeas proceedings and does not raise a new ground for relief or

attack the district court’s resolution of a claim on the merits. Crosby, 545 U.S.

at 524, 530-32. The Court did not hold that a petitioner is entitled to appellate

review of the denial of such a motion without having to obtain a COA first. To

the contrary, the Court noted with approval that some courts require a COA in

such a situation. Id. at 535 & n.7.

As we have noted, our unpublished opinions are in conflict with respect to

whether Dunn should be interpreted narrowly, to limit its application to its

facts, or broadly, to mean that a COA is never required to appeal the denial of

a Rule 60(b) motion in a habeas case. The broad interpretation is reflected in

Owens, Wilson, and Dillard, cited by Canales, which deemed a COA unnecessary

to appeal the denial of a Rule 60(b) motion when the underlying habeas petition

was dismissed as time-barred. Those opinions are unpublished and thus are not

precedential under 5th Cir. R. 47.5. Other unpublished orders, however, have

interpreted Dunn narrowly, and required a COA to appeal the denial of Rule

60(b) motions in habeas cases. E.g., Cooper v. Quarterman, No. 06-10268 (Feb.

15, 2007) (one-judge order), reconsideration denied (5th Cir. May 17, 2007),

petition for cert. filed (No. 07-6471) (Aug. 1, 2007); Adeleke v. Quarterman, No.

05-11109 (5th Cir. Nov. 1, 2006) (one-judge order); Dunn v. Dretke, No. 05-10877

(5th Cir. May 5, 2006) (one-judge order), reconsideration denied (5th Cir. July 26,

2006), cert. denied, 127 S.Ct. 950 (2007).

We believe thatthe narrow interpretation of Dunn is the correct approach,

for several reasons. First, the petitioner in Dunn did not challenge the district

court’s denial of habeas relief. Instead, the sole purpose of Dunn’s Rule 60(b)

motion was to achieve an extension of time in which to file a notice of appeal.

Second, 28 U.S.C. § 2253 provides that a COA is required to appeal “the final
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order in a habeas corpus proceeding.” 28 U.S.C. § 2253. Because the denial of

a Rule 60(b) motion is a final, appealable order, it fits within the definition of a

final order in a habeas corpus proceeding. Finally, the court in Dunn noted that

the petitioner in that case was not “using Rule 60(b) to amend or alter the

judgment of a first habeas proceeding.” 302 F.3d at 492 n.1. Unlike the

petitioner in Dunn, Canales is attempting to use Rule 60(b) to alter the April 18,

2001 judgment in his first habeas proceeding, in which the district court

dismissed his petition without prejudice for failure to exhaust state remedies.

We therefore hold that Dunn’s conclusion that a COA is not required to appeal

the denial of a Rule 60(b) motion applies only when the purpose of the motion is

to reinstate appellate jurisdiction over the original denial of habeas relief.

III.

For the foregoing reasons, Canales’s Petition for Rehearing En Banc is

DENIED.