United States Court of Appeals

for the Fifth Circuit

No. 16-70023

Joseph Gamboa, 

Petitioner—Appellant, 

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Respondent—Appellee. 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:15-CV-113 

Before Jones, Smith, and Dennis, Circuit Judges. 

Per Curiam:*

Petitioner Joseph Gamboa, a capital inmate in Texas, appeals the 

district court’s denial of his “Motion to Dismiss Counsel” during his 28 

U.S.C. § 2254 federal habeas corpus proceedings. Because we cannot grant 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2023

Lyle W. Cayce

Clerk

Case: 16-70023 Document: 00516679247 Page: 1 Date Filed: 03/16/2023
No. 16-70023

2

any effectual relief, Gamboa’s appeal is moot, and we must dismiss it for lack 

of jurisdiction. 

I.

The background to this case has been amply discussed elsewhere. See 

Gamboa v. Davis, 782 F. App’x 297, 298–99 (5th Cir. 2019). We briefly 

recount the facts as relevant here. In 2007, a Texas jury convicted Joseph 

Gamboa of capital murder and sentenced him to death for killing Ramiro 

Ayala and Douglas Morgan during a 2005 robbery at a bar in San Antonio, 

Texas. Id. at 289. Gamboa’s conviction and sentence were affirmed on direct 

appeal, see Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009), and his 

state habeas application was denied in February 2015, see Gamboa, 782 F. 

App’x at 298.

In 2015, following his unsuccessful state habeas proceedings, Gamboa 

moved in federal district court for appointment of counsel to assist with his

28 U.S.C. § 2254 federal habeas petition. The district court appointed 

attorney John Ritenour, Jr. to represent Gamboa. Ritenour filed Gamboa’s

§ 2254 petition in February 2016, alleging various challenges to the 

constitutionality of Texas’s death penalty scheme. Ritenour later met with 

Gamboa, who allegedly expressed his displeasure with what Gamboa 

perceived as Ritenour’s failure to investigate other issues related to the guilt 

and penalty phases of his capital trial. In April 2016, the State filed an answer, 

contending that all of Gamboa’s claims were foreclosed by settled precedent 

and that some were also procedurally defaulted. The next month, Ritenour 

filed an untimely two-paragraph reply brief, conceding that each claim in 

Gamboa’s federal habeas petition was foreclosed. Id. at 298–299. On June 

8, 2016, Ritenour wrote to Gamboa, enclosing the reply brief and explaining 

his rationale for conceding that all claims were foreclosed. 

Case: 16-70023 Document: 00516679247 Page: 2 Date Filed: 03/16/2023
No. 16-70023

3

Three weeks later, on June 29, 2016, Gamboa filed a pro se “Motion 

to Dismiss Counsel” wherein he requested that the district court remove 

Ritenour as his appointed counsel and appoint new counsel to represent him. 

The motion stated that “appointed counsel has failed to file the appropriate 

and REQUESTED ERRORS necessary to the adequate defense to the 

federal habeas writ pending against defendant herein.” The pro se motion 

further stated that Gamboa had “lost faith in counsel and no longer trust [sic] 

counsel’s advice” and that, “as a result of the attitude and performance of” 

appointed counsel, “there now exist [sic] an irreparable, antagonistic 

relationship between Defendant and appointed counsel.” The motion, 

however, lacked a certificate of conference and, although it included a 

certificate of service, that certificate was incorrectly addressed. 

On July 8, 2016, the district court struck Gamboa’s motion for failing 

to comply with the Local Court Rules for the United States District Court for 

the Western District of Texas and, in the alternative, denied the motion on 

its merits. First, the court stated that the applicable standard for evaluating 

Gamboa’s motion to substitute counsel was whether there was “good cause 

. . . for the withdrawal of counsel.” The court then emphasized that the 

motion was filed four months after Ritenour filed the § 2254 petition, more 

than a month after Ritenour filed the “last operative pleading” in the case, 

and well after the Antiterrorism and Effective Death Penalty Act’s statute of 

limitations had expired on Gamboa’s petition. The court also observed that 

Gamboa had not alleged any specific facts demonstrating an actual or 

potential conflict of interest between himself and Ritenour nor had Gamboa 

identified with specificity any irreconcilable conflict between himself and 

Ritenour. 

Responding to Gamboa’s allegation that his counsel failed to assert 

claims that Gamboa wanted to include in his petition, the court noted that

Gamboa had not “identif[ied] any non-frivolous claims for relief” that he 

Case: 16-70023 Document: 00516679247 Page: 3 Date Filed: 03/16/2023
No. 16-70023

4 

would have included in his § 2254 petition but that Ritenour failed to 

incorporate, and, moreover, counsel is under no duty to raise every nonfrivolous claim that could be pressed. Last, the district court stated that the 

motion was deficient under the Local Rules because it lacked both a 

certificate of service and a certificate of conference.

On August 4, 2016, the district court denied Gamboa’s § 2254 motion

and denied a Certificate of Appealability (“COA”), determining that all of 

his claims were procedurally defaulted and/or foreclosed by precedent. 

Ritenour then moved to withdraw as counsel. The district court denied his 

motion without prejudice. Subsequently, Gamboa filed a pro se notice of 

appeal. The notice identified two orders that Gamboa sought to appeal—the 

district court’s order denying his motion to dismiss counsel and the order 

denying his § 2254 petition.

In proceedings before this court, Ritenour again moved to withdraw, 

and we granted his motion. Gamboa obtained new counsel and successfully 

obtained a stay of proceedings in this court so that he could file a motion for 

relief from judgment under Federal Rule of Civil Procedure 60(b) in the 

district court. He argued that Ritenour abandoned him, “depriving him of 

the quality legal representation guaranteed in his federal habeas proceedings 

under [18 U.S.C.] § 3599, and that the proceedings should therefore be 

reopened to cure that defect.” Id. The district court denied Gamboa’s Rule 

60(b) motion as an unauthorized successive petition and, alternatively, 

denied the motion on the merits for failure to show extraordinary 

circumstances justifying Rule 60(b) relief. The district court also denied 

Gamboa a COA. Gamboa then sought a COA from this court to challenge 

the district court’s ruling on his Rule 60(b) motion. Acknowledging that 

Gamboa’s claims of attorney abandonment were “troubling,” we denied a 

COA in light of binding circuit precedent. Id. at 301 (citing In re Edwards, 

865 F.3d 197, 204–05 (5th Cir. 2017)). 

Case: 16-70023 Document: 00516679247 Page: 4 Date Filed: 03/16/2023
No. 16-70023

5 

Following our denial of a COA, the parties briefed the issue of whether 

the district court committed reversible error in denying Gamboa’s motion to 

dismiss counsel and appoint substitute counsel. 

II.

On appeal, Gamboa argues that the district court applied the incorrect 

standard in considering his motion to appoint substitute counsel. He points 

out that the Supreme Court had mandated that district courts assess “the 

interests of justice” in considering indigent capital defendants’ requests to 

replace appointed counsel under 18 U.S.C. § 3599(e), see Martel v. Clair, 565 

U.S. 648, 652 (2012), but that the district court instead stated that the 

applicable standard was whether there was “good cause . . . for the 

withdrawal of counsel.” Gamboa asks us to reverse the district court’s denial 

of his motion and to remand this matter to the district court with instructions 

“that the case proceed with substitute counsel, as of the date of the filing” of 

his motion. 

Before we may entertain the merits of Gamboa’s appellate arguments, 

we must first consider our jurisdiction. Although Gamboa has not sought nor 

received a COA to appeal the denial of his motion to substitute counsel under 

18 U.S.C. § 3599(e), a COA is not required to appeal this issue. Title 28 

U.S.C. § 2253(c)(1)(A), the provision governing the issuance of a COA for 

state prisoners, provides that, unless a COA issues, “an appeal may not be 

taken” from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” The 

Supreme Court has observed that this provision specifically “governs final 

orders that dispose of the merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of the petitioner’s detention.” Harbison v.

Bell, 556 U.S. 180, 183 (2009). By contrast, “[a]n order that merely denies a 

motion to enlarge the authority of appointed counsel (or that denies a motion 

Case: 16-70023 Document: 00516679247 Page: 5 Date Filed: 03/16/2023
No. 16-70023

6 

for appointment of counsel) is not such an order and is therefore not subject to 

the COA requirement.” Id.(emphasis added). This includes motions to substitute appointed counsel filed under 18 U.S.C. § 3599(e). See Lambrix v.

Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1258 (11th Cir. 2014) (explaining

that “petitioner d[id] not need a COA to appeal a district court’s denial of” 

of his “Motion for Appointment of Substitute Collateral Counsel” under 18 

U.S.C. § 3599(e) because “[a]n order denying a motion for court-appointed, 

federal habeas counsel under [that provision] is ‘clearly an appealable order 

under 28 U.S.C. § 1291’” (cleaned up) (quoting Harbison, 556 U.S. at 183)). 

Though appeals from the denial of appointment of counsel do not require a COA, we must address the additional jurisdictional issue of whether 

the present appeal is moot.1 “A case becomes moot . . . ‘only when it is impossible for a court to grant any effectual relief whatever to the prevailing

party.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016) (quoting 

Knox v. Serv. Emps. Intern. Union Local 1000, 567 U.S. 298, 307 (2012)). 

Gamboa seeks to have the district court’s order denying his motion for appointment of substitute counsel reversed. But Gamboa has not been represented by Ritenour—the attorney Gamboa sought to replace—since we 

granted Ritenour’s motion to withdraw early in the proceedings in this court. 

Moreover, Gamboa has had the services of substitute counsel for almost the 

entirety of his proceedings in this court. So, any request to merely substitute 

counsel at this juncture in the habeas litigation would be moot. 

What Gamboa actually seeks is not simply to change counsel now; instead, he asks us to rule that the district court should have granted his motion 

1

 “None of the parties raised” any “jurisdictional issue[s] on appeal. Of course, 

we ‘must examine the basis of [our] jurisdiction, on [our] own motion, if necessary.’” Hill

v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000) (quoting Mosley v. Cozby, 813 F.2d 

659, 660 (5th Cir. 1987)). 

Case: 16-70023 Document: 00516679247 Page: 6 Date Filed: 03/16/2023
No. 16-70023

7 

to appointsubstitute counsel during his § 2254 proceedings before that court, 

which would allow him to rewind his federal habeas proceedings to the time 

he filed that motion. Implicit in this request is that we vacate or otherwise

effectively invalidate orders that were entered after Gamboa filed his motion 

to substitute counsel, including, most importantly, the district court’s denial 

of his § 2254 petition. Granting the relief he requests would, at a minimum, 

imply the invalidity of the order denying his petition, as it was issued following the denial of the motion to substitute counsel. But, as explained below, 

we are powerless to vacate or invalidate the district court’s judgment denying 

Gamboa’s federal habeas petition without first issuing a COA. 

In order for us to overturn the district court’s order “dispos[ing] of 

the merits of [his] habeas proceeding,” Harbison, 556 U.S. at 183, Gamboa

would need to appeal that order. But before he could prosecute such an appeal, he would first need to receive a COA from this court, which would then 

authorize his appeal. See 28 U.S.C. § 2253(c); see also United States v. Davis, 

971 F.3d 524, 535 (5th Cir. 2020) (explaining that, in the context of a § 2255 

motion, “a COA is a jurisdictional prerequisite to any appeal” and that this 

court therefore has “no judicial power to do anything without it”). And “[a]

COA may issue ‘only if the applicant has made a substantial showing of the 

denial of a constitutional right.’ Until the prisoner secures a COA, the Court 

of Appeals may not rule on the merits of his case.” Buck v. Davis, 137 S. Ct. 

759, 773 (2017) (internal citation omitted) (quoting 28 U.S.C. § 2253(c)(2)). 

The district court denied Gamboa a COA on the denial of his § 2254 

petition. Foreseeing that a COA would be required to grant his request that 

we vacate this denial in order to deliver relief on his motion to substitute 

counsel, Gamboa asks in the alternative that we construe his September 12, 

2016 Notice of Appeal as a request for a COA. Federal Rule of Appellate 

Procedure 22(b)(2) permits this. However, we decline to grant a COA because no reasonable jurist would find the district court’s decision here

Case: 16-70023 Document: 00516679247 Page: 7 Date Filed: 03/16/2023
No. 16-70023

8 

debatable. Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003). As Gamboa 

concedes, the claims that attorney Ritenour raised in Gamboa’s petition were 

generic, broadside constitutional challenges entirely foreclosed by precedent. 

He is correct that “none of the claims contained in appointed counsel’s petition would qualify for a COA.” 

Instead, Gamboa argues that the district court’s erroneous denial of 

his motion to substitute counsel had the consequence of depriving Gamboa 

of a meaningful opportunity to be heard on his petition in violation of due 

process. While it is true that there is a due process right to counsel of one’s 

choice, United States v. Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006), and 

this is at least partly rooted in the fundamental right to be heard, Gandy v. 

Alabama, 569 F.2d 1318, 1320 (5th Cir. 1978) (citing Powell v. Alabama, 287 

U.S. 45, 68–69 (1932)), this constitutional right typically does not extend to 

situations in which counsel is court-appointed, Gonzalez-Lopez, 548 U.S. at 

151; cf. Carlson v. Jess, 526 F.3d 1018, 1025 (7th Cir. 2008) (“[M]otions for 

substitution of retained counsel and for a continuance can implicate both the 

Sixth Amendment right to counsel of choice and the Fourteenth Amendment 

right to due process of law.”) (emphasis added); see also Christeson v. Roper, 

574 U.S. 373, 377 (2015) (“Congress has not, however, conferred capital habeas petitioners with the right to counsel of their choice.”). Here, Gamboa’s 

motion requested that the district court appoint new counsel, putting the motion beyond the apparent bounds of this particular aspect of due process as 

recognized thus far in caselaw. Section 2253(c) requires a “substantial showing of the denial of a constitutional right.” When there is doubt as to the 

existence of the constitutional right asserted, we cannot say a substantial 

showing of its denial has been made. Thacker v. Dretke, 396 F.3d 607, 617–18

(5th Cir. 2005). Accordingly, we find Gamboa has not carried his burden to 

warrant issuing a COA for his appeal of the denial of his motion to substitute 

counsel.

Case: 16-70023 Document: 00516679247 Page: 8 Date Filed: 03/16/2023
No. 16-70023

9

III.

For these reasons, Gamboa’s appeal of the denial of his motion to substitute counsel is DISMISSED as moot.

Case: 16-70023 Document: 00516679247 Page: 9 Date Filed: 03/16/2023