IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________ 

No. 14-50245

___________________ 

In re: RAY JASPER,

 Movant

--------------------------------------------------

Consolidated with 14-70012

RAY JASPER,

 Petitioner - Appellant

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

 Respondent - Appellee

Appeals from the United States District Court

for the Western District of Texas

USDC No. 5:08-CV-735

Before DENNIS, CLEMENT, and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:*

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2014

Lyle W. Cayce

Clerk

 

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Petitioner Ray Jasper is scheduled to be executed in Texas after 6 PM 

on Wednesday, March 19. Jasper filed a Rule 60(b)(6) motion in district court

and a request for a stay of execution. The district court determined that 

Jasper’s Rule 60(b)(6) motion constituted a second-or-successive habeas 

petition, and transferred Jasper’s Rule 60(b)(6) motion to this court under 28 

U.S.C. § 1631 to determine whether it satisfies the requirement for a 

successive petition under 28 U.S.C. § 2244(b). The district court denied 

Jasper’s request for a certificate of appealability. Meanwhile, Jasper has 

separately appealed the district court’s determination, filed a request for a 

certificate of appealability, and filed a request for an emergency stay of 

execution pending appeal.

For the reasons that follow, and due to the emergency nature of this 

appeal, we (1) treat the notice of appeal as a motion for authorization, and

DENY authorization to file a second-or-successive habeas petition, (2) 

GRANT the request for a COA insofar as is necessary and AFFIRM the 

district court’s determination that Jasper did not file his 60(b)(6) motion 

within a reasonable time, and (3) DENY a stay of execution.

FACTS AND PROCEEDINGS

Petitioner Ray Jasper was convicted of robbery-related capital murder 

and sentenced to death in Bexar County, Texas, in January 2000. During 

jury selection for Jasper’s criminal trial, the prosecutor exercised a 

preemptory strike against Vernon Galloway, a black venireman. Jasper’s 

trial counsel raised a Batson claim in response to the strike, which the trial 

court rejected. See Batson v. Kentucky, 476 U.S. 79 (1986).

The Texas Court of Criminal Appeals affirmed Jasper’s conviction and 

sentence on direct appeal in 2001. Jasper v. State, 61 S.W.3d 413 (Tex. Crim. 

App. 2001); see also id. at 422 (rejecting Batson challenge). Jasper did not file 

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a cert petition relating to the denial of his direct appeal. Jasper then filed a 

state habeas petition. The Court of Criminal Appeals denied relief on 

Jasper’s habeas petition in 2008. Ex parte Jasper, No. WR-68,832-01, 2008 

WL 3855114 (Tex. Crim. App. Aug. 20, 2008). 

Jasper next filed a federal habeas petition in the Western District of 

Texas in July 2009. The Western District denied habeas relief, but granted a 

COA on Jasper’s Batson claim. See Jasper v. Thaler, 765 F. Supp. 2d 783 

(W.D. Tex. 2011). The district court’s order resolved Jasper’s Batson claim on 

the merits, and determined that the Court of Criminal Appeal’s resolution of 

the issue was neither contrary to, nor involved an unreasonable application of 

clearly established federal law, as determined by the Supreme Court. Id. at 

821-23. The court’s order, however, did emphasize that his review of the 

record was limited by the fact that none of the jury questionnaires, save for 

the one for Mr. Galloway, were in the record. Id. at 816 n.62. A filing from 

Jasper’s lawyers during the federal district court habeas proceedings suggest 

that Jasper’s federal habeas counsel (who has since been replaced) attempted 

to introduce the questionnaires into the record but could not find them:

Petitioner’s current writ counsel would like to inform the Court 

that he attempted earlier in the process to supplement the record 

with the questionnaires in question. Counsel obtained an order 

from the state trial court to unseal the questionnaires and make 

them available to Mr. Jasper’s current counsel. However, after 

counsel submitted this order to the Bexar County District Clerk’s 

Office, and the clerk in charge of such records made a search for 

them, counsel was informed that the questionnaires were not 

included in the trial record, nor saved anywhere else in the 

system, and apparently do not exist anymore.

Jasper’s counsel, however, maintained that the record without 

the questionnaires provided sufficient information on which to review 

Jasper’s Batson claim: 

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Counsel would like to point out that the relevant juror 

questionnaire answers of the various prospective jurors at issue 

in this claim can be ascertained from the way they were 

questioned during voir dire, as the parties have done in their 

pleading and this Court has done in its opinion. 

Counsel believes the Batson issue should be decided on the 

basis of what is in the record rather than what is not, and 

believes the record is sufficient to support his claim. 

On appeal, this court rejected Jasper’s Batson claim on the merits. See 

Jasper v. Thaler, 466 F. App’x 429, 437-38 (5th Cir. 2012). This court also 

explained that the lack of jury questionnaires made review of the state court 

decision difficult, and meant that Jasper had an uphill battle in proving a 

Batson violation:

Jasper’s claim that Galloway was removed for racial reasons in 

violation of the Fourteenth Amendment is unpersuasive. 

Although he established a prima facie case, the failure to 

preserve the questionnaires in the record makes the comparative 

analysis he seeks difficult to conduct. Jasper has the burden of 

proving that the discrimination was purposeful. The record does 

not indicate why the questionnaires were not included in the trial 

court record, but that does not negate the fact that the burden is 

on the plaintiff to demonstrate that the prior findings were 

erroneous. There is nothing which would indicate that Jasper 

has met this burden, especially in light of AEDPA’s demanding 

standards. 

Id. at 437 (internal citations omitted). The Supreme Court denied Jasper’s 

subsequent cert petition. 133 S. Ct. 788 (2012). The trial court then set 

Jasper’s execution date for March 19, 2014.

In February 2014, Jasper’s present habeas counsel launched another 

search for the questionnaires. During the first week of February, Jasper’s 

counsel called the Bexar County District Attorney, who located copies of the 

juror questionnaires in his files on February 6. Unfortunately, for a variety 

of reasons, it took the district attorney until February 21 to actually send the 

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forms to Jasper’s counsel. Armed with the questionnaires, Jasper filed a 

subsequent habeas petition re-raising the Batson challenge in the Texas 

Court of Criminal Appeals. Jasper argued that the subsequent habeas 

petition was justified by the change in Batson law created by Miller-El v. 

Dretke, 545 U.S. 231 (2005), which was handed down subsequent to Jasper’s 

state habeas petition’s filing, and required comparative analysis between 

jurors that was only possible with the questionnaires. On March 10, in a 

brief opinion, the Texas Court of Criminal Appeals dismissed Jasper’s second 

habeas petition as an abuse of the writ. The Court of Criminal Appeals also 

denied Jasper’s request for a stay.

Jasper then filed a Rule 60(b)(6) motion in district court. Jasper’s 60(b) 

motion alleged that the previous federal proceedings were defective because 

(1) they were conducted without the aid of the now-found jury questionnaires, 

and (2) the district court did not follow the dictates of 28 U.S.C. § 2254(f), and 

order the state to produce the questionnaires and/or lower the presumption of 

correctness applied to the state court’s factual findings. Jasper also filed a 

request for a stay.

The district court determined that (1) Jasper’s 60(b)(6) motion was not 

filed within a reasonable time as required for Federal Rule of Civil Procedure 

60(c)(1), (2) Jasper could not demonstrate exceptional circumstances 

sufficient to justify a 60(b)(6) motion, and (3) Jasper’s 60(b)(6) motion 

constituted a second-or-successive habeas petition under the test set out by 

the Supreme Court in Gonzalez v. Crosby, 545 U.S. 524 (2005). Because the 

district court determined that Jasper’s 60(b) motion constituted a second-orsuccessive habeas petition, it transferred Jasper’s 60(b) motion to this court 

for a determination of whether Jasper can meet the requirements for a 

second-or-successive petition under 28 U.S.C. § 2244(b). The district court, 

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having determined that Jasper is unlikely to succeed on the merits of his 

motion, also denied Jasper’s request for a stay of execution.

STANDARD OF REVIEW

We review a district court’s determination as to whether a Rule 60(b) 

constitutes a second-or-successive habeas petition de novo. See Ward v. 

Norris, 577 F.3d 925, 932 (8th Cir. 2009).

In reviewing the district court’s determinations to grant or deny relief 

under 60(b), we will reverse only for an abuse of discretion. Tamayo v. 

Stephens, 740 F.3d 986, 990 (5th Cir. 2014). “A district court abuses its 

discretion if it bases its decision on an erroneous view of the law or on a 

clearly erroneous assessment of the evidence.” Hesling v. CSX Trans., Inc., 

396 F.3d 632, 638 (5th Cir. 2005). 

Finally, we review the district court’s decision to deny a stay for an 

abuse of discretion. Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). In 

determining whether to issue a stay of execution pending appeal, we consider 

(1) whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits, (2) whether the applicant will be irreparably injured 

absent a stay, (3) whether issuance of the stay will substantially injure the 

other parties interested in the proceeding, and (4) where the public interest 

lies. Id. The party requesting a stay has the burden of showing that the 

circumstances justify an exercise of judicial discretion. Id. 

DISCUSSION

Jasper’s Rule 60(b)(6) motion alleges two separate defects in his prior 

federal habeas proceeding. First, Jasper argues that the original habeas 

proceedings were defective because the record did not include jury 

questionnaires that were recently uncovered that substantiate his claimed 

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Batson violation. Second, Jasper argues that the original habeas proceedings 

were defective because the district court failed to apply 28 U.S.C. § 2254(f) to 

order the state to produce the missing records and/or lessen the presumption 

of correctness given to the state court findings of fact. We will treat each 

proposed defect as a separate proposed justification for the 60(b) motion.

I. Whether Jasper’s Petition is a Second-or-Successive Habeas 

Petition 

We must first address whether Jasper’s alleged defects in the prior 

habeas proceedings constitute “claims,” and therefore second-or-successive 

habeas petitions.

A) Analysis

In order to prevent conflicts between the strict limitations in AEDPA 

on second-or-successive habeas petitions and the more lenient restrictions in 

Rule 60(b) on motions for relief from final judgments, federal courts examine 

Rule 60(b) motions to determine whether they are, in fact, second-orsuccessive habeas petitions in disguise. See, e.g., Gonzalez, 545 U.S. at 531-

32. Under Gonzalez, a federal court examining a Rule 60(b) motion should 

determine whether it presents either (1) a new habeas claim—defined as “an 

asserted federal basis for relief from a state court’s judgment of conviction,” 

id. at 530, or (2) “attacks the federal court’s previous resolution of a claim on 

the merits, since alleging that the court erred in denying habeas relief on the 

merits is effectively indistinguishable from alleging that the movant is, under 

the substantive provisions of the statutes, entitled to habeas relief,” id. at 

532 (footnote omitted). If either is true, then the Rule 60(b) motion should be 

treated as a second-or-successive habeas petition, and subjected to AEDPA’s 

limitation on such petitions. See 28 U.S.C. § 2242(b). 

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By contrast, “[t]o open the Rule 60(b) door . . . there must be a showing 

of a non-merits-based defect in the district court’s earlier decision on the 

federal habeas petition.” Balentine v. Thaler, 626 F.3d 842, 847 (5th Cir. 

2010). Accordingly, if the Rule 60(b) 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,” then the motion does not need to 

be treated as a second-or-successive petition. Gonzalez, 545 U.S. at 532. 

Gonzalez further clarifies that an on the merits resolution is where a federal 

court makes “a determination that there exist or do not exist grounds 

entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and 

(d),” and does not encompass the situation where a petitioner alleges “that a 

previous ruling which precluded a merits determination was in error—for 

example, a denial for such reasons as failure to exhaust, procedural default, 

or statute-of-limitations bar.” Gonzalez, 545 U.S. at 532 n.4.

We believe that insofar as Jasper’s Rule 60(b) motion argues that the 

previous decision should be vacated so that Jasper can re-argue his habeas

challenge with the missing questionnaires, his Rule 60(b) motion constitutes 

a second-or-successive petition. 

First, both the Supreme Court and the federal courts of appeal have 

repeatedly noted that 60(b) motions raising additional facts for consideration 

constitute claims, and therefore should be evaluated as second-or-successive 

habeas petitions. See, e.g., id. at 531-32. As the First Circuit has noted, a 

motion that “asks the district court for an opportunity to offer facts that (in 

the petitioner’s view) will prove that his conviction was constitutionally 

infirm,” raises “a paradigmatic habeas claim.” Rodwell v. Pepe, 324 F.3d 66, 

71-72 (1st Cir. 2003).

Second, “an attack based on the movant’s own conduct, or his habeas 

counsel’s omissions, ordinarily does not go to the integrity of the proceedings, 

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but in effect asks for a second chance to have the merits determined 

favorably.” Gonzalez, 545 U.S. at 532 n.5 (internal citations omitted). For 

example, a habeas petitioner cannot use a 60(b) motion to obtain relief when 

habeas counsel mishandles designating a record on appeal. See, e.g., Gray v. 

Mullin, 171 F. App’x 741, 744 (10th Cir. 2006). Though, to be sure, there is 

plenty of blame to go around regarding how the jury questionnaires did not 

end up in the record—they should not have been lost—records of the voir dire 

indicate that the defense counsel, whose actions, absent abandonment, are 

ascribed to Jasper, see, e.g., Maples v. Thomas, 132 S. Ct. 912, 922 (2012), 

had a copy of the jury questionnaires and failed to designate them as part of 

the record on direct appeal, see Jasper, 765 F. Supp. 2d at 803. We perceive 

no error in the district court’s repeated determinations that Jasper’s counsel, 

and therefore, Jasper, are primarily responsible for the questionnaires not 

being in the record.1 Jasper cannot rely on their absence to argue that the 

habeas proceedings were defective.

B) Implications

We now address whether Jasper meets the requirements for a secondor-successive habeas petition. We conclude he does not. Jasper “brings the 

same . . . claim[] in his successive habeas petition as he did in his initial 

federal habeas petition,” and accordingly Jasper’s “petition is barred under 28 

U.S.C. § 2244(b)(1).” Adams v. Thaler, 679 F.3d 312, 323 (5th Cir. 2012). We 

therefore deny Jasper permission to file a second-or-successive habeas 

petition on the basis of the found questionnaires.

1 Though Jasper’s brief now attempts to shift blame onto the court for not halting 

habeas proceedings when “the resolution of the issue presented by Mr. Jasper could not be 

undertaken with the necessary degree of confidence without the juror questionnaires,” his 

belated raising of the issue is not well taken given that Jasper’s own counsel at the time 

was urging the courts to decide the issue. See supra.

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II. Federal Rule of Civil Procedure 60(c)(1) Bars Relief

Even assuming Jasper’s Rule 60(b) motion alleging a 28 U.S.C. § 

2254(f) error is a “true” Rule 60(b) motion, the district court committed no 

error in determining that Jasper did not file his Rule 60(b)(6) motion on a 

timely basis.

Rule 60 requires that any “motion under Rule 60(b) must be made 

within a reasonable time,” Fed. R. Civ. P. 60(c)(1), “unless good cause can be 

shown for the delay.” In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). What 

constitutes “good cause” for a reasonable delay “must necessarily be 

evaluated on a case-by-case basis.” Id. “The timeliness of the motion is 

measured as of the point in time when the moving party has grounds to make 

such a motion, regardless of the time that has elapsed since the entry of 

judgment.” First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 

120 (5th Cir. 1992). Once a party has grounds to make a Rule 60(b) motion, 

however, they must bring the motion reasonably promptly, though “the 

determination of reasonableness is less than a scientific exercise.” Id. at 121.

Here, any error, if any, related to 28 U.S.C. § 2254(f) in the habeas 

proceedings occurred—and was obvious—in 2011 and 2012 when the district 

court and this court denied Jasper’s habeas petition. Jasper should have 

appealed the error at that point on direct appeal, and we believe that the 

district court’s determination that Jasper’s motion was untimely did not 

constitute an error—let alone an abuse of discretion. See Tamayo, 740 F.3d at 

991; see also id. (Higginbotham, J., concurring) (“I would affirm the district 

court’s rejection of the Rule 60 submission as untimely.”). “[E]ven if the trial 

court had applied an incorrect legal standard . . . the proper way to challenge 

its ruling in the court of appeals is by appeal of its ruling, not by appeal of a 

denial of a Rule 60(b) motion.” Gary W. v. Louisiana, 622 F.2d 804, 805 (5th 

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Cir. 1980). “Rule 60(b) simply may not be used as an end run to effect an 

appeal outside the specified time limits, otherwise those limits become 

essentially meaningless.” Pryor v. U.S. Postal Serv., 769 F.2d 281, 288 (5th 

Cir. 1985).2

III. Whether Jasper’s Execution Should Be Stayed

Because we conclude that Jasper’s Rule 60(b) motion is either a secondor-successive habeas petition, or untimely under Federal Rule of Civil 

Procedure 60(c)(1), we believe he cannot succeed on his claims for relief. 

Accordingly, we agree with the district court that Jasper has not 

demonstrated his entitlement to a stay. See, e.g., Nken v. Holder, 556 U.S. 

418, 434 (2009) (“It is not enough that the chance of success on the merits be 

better than negligible.” (internal quotation marks omitted)); Diaz, 731 F.3d 

370, 379 (5th Cir. 2013). We therefore DENY his request for a stay.

CONCLUSION

We DENY Jasper permission to file a second-or-successive habeas 

petition on the basis of the missing questionnaires, AFFIRM the district 

court’s determination that the Rule 60(b) motion was not timely under 

Federal Rule of Civil Procedure 60(c)(1), and DENY his request for a stay.

2 We also note, without deciding, that Jasper cannot likely demonstrate the required 

exceptional circumstances for the same reason. See, e.g., Ackermann v. United States, 340 

U.S. 193, 197-98 (1950).

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JAMES L. DENNIS, Circuit Judge, concurring in the judgment:

I concur in the majority’s judgment that petitioner-appellant Ray 

Jasper, who is scheduled to be executed by the State of Texas later today, 

March 19, 2014, is not entitled under the law to relief from this court. I do 

not, however, join the majority in all of its reasons.

In July 2009, Jasper filed a federal habeas corpus petition in the 

district court attacking his Texas conviction and death sentence. Among 

other claims, he contended that, during the jury selection process that 

preceded his trial, the state’s prosecutors discriminatorily exercised 

peremptory strikes to eliminate the only prospective jurors in the pool who, 

like Jasper, were black. In particular, Jasper’s claim focused on the 

prosecutor’s peremptory strike of Vernon Galloway, a black man who, when 

questioned during voir dire, expressed some hesitancy about imposing the 

death penalty but ultimately concluded that he could impose death if the 

evidence showed it to be appropriate. The prosecutor’s strike of Galloway, 

Jasper claimed, was based on his race and was therefore unconstitutional 

under Batson v. Kentucky, 476 U.S. 79 (1986).

When Jasper first brought his Batson claim to the district court, he did 

so on a limited record. In the state court, prospective jurors in the pool were 

required to fill out questionnaires reflecting their views on the death penalty, 

the courts, the criminal justice system, and a number of other issues. Then, 

during voir dire, the judge and the attorneys questioned the prospective 

jurors on their questionnaire answers. Jasper’s counsel, however, did not 

preserve the questionnaires, and thus, they were not made part of the district 

court’s habeas corpus record. Accordingly, the ability of the district court to 

review the jury selection process for race discrimination was constrained. See

Jasper v. Thaler, 765 F. Supp. 2d 783, 816 n.62 (W.D. Tex. 2011). The 

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district court denied the Batson claim. Id. at 878. On appeal, we affirmed. 

Jasper v. Thaler, 466 F. App’x 429, 442 (5th Cir. 2012) (per curiam). We, like 

the district court, noted that our review was constrained by the lack of 

questionnaires. See id. at 437.

After Jasper’s Batson claim failed, the state set the March 19 execution 

date. Jasper obtained a new attorney to represent him. And, with the 

execution date around the corner, Jasper’s new attorney received the jury 

questionnaires that his earlier counsel had failed to preserve. Jasper now 

contends that the questionnaires reveal that his Batson claim is meritorious, 

and thus, should be reexamined in light of the questionnaires. On March 11, 

about a week before the scheduled execution, he filed a motion in the district 

court under Federal Rule of Civil Procedure 60(b)(6), asking the court to 

vacate its prior judgment denying his Batson claim so that he could have the 

opportunity to amend the claim and have it decided anew, in light of the 

questionnaires.1 He argued that the absence of the questionnaires in the 

habeas corpus record when the district court decided the Batson claim was a 

“defect in the integrity of the federal habeas proceedings.” See Gonzalez v. 

Crosby, 545 U.S. 524, 532 (2005). On March 18, one day before the scheduled 

execution, the district court, working with admirable expeditiousness, denied 

the Rule 60(b)(6) motion, citing a number of procedural flaws in Jasper’s 

petition and concluding that Jasper’s Batson claim was not as strong as 

Jasper contended. Jasper appealed, bringing the case, once again, before us.

1 Under Rule 60(b)(6), a federal court, “[o]n motion and just terms,” “may relieve a 

party or its legal representative from a final judgment, order, or proceeding” for several 

enumerated reasons, including mistake, newly discovered evidence, fraud, and others. 

Under subsection (b)(6), the court may do the same for “any other reason that justifies 

relief.”

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Having studied the jury questionnaires and the voir dire transcript, I 

do not believe that the Batson claim, as raised in the context of federal 

habeas corpus, has sufficient merit to succeed. Jasper contends that, 

Galloway and a number of the non-black jurors all indicated on their 

questionnaires that they had some doubts about the death penalty or 

hesitancy towards imposing it. Thus, Jasper concludes, the fact that it was 

only Galloway, and not the non-black jurors, who the prosecutor struck 

indicates that the prosecutor did not truly eliminate Galloway from the jury 

for his views on the death penalty, as the prosecutor claimed, but rather for 

his race. The claim has intuitive logic. However, as Jasper concedes, 

Galloway answered nine of the questionnaire’s questions in a manner that 

the prosecutor found troubling for the state’s case for death, and none of the 

non-black jurors answered so many. The non-black jurors who, during voir 

dire, expressed similar or greater levels of discomfort with imposing death as 

Galloway all answered appreciably fewer “anti-death-penalty” questions on 

their questionnaires as did Galloway. When the prosecutor explained his 

reasons for striking Galloway, the prosecutor pointed to those nine answers. 

Under the high standard of review on habeas corpus, I cannot conclude 

that the Texas state courts were unreasonable in failing to find that the 

prosecutor’s explanation was pretext for race discrimination. See 28 U.S.C. 

§ 2254(d)(1) (federal habeas corpus court will overturn state court’s resolution 

of a claim only if it was “contrary to, or involved an unreasonable application 

of, clearly established Federal law”). Because I do not think the Batson claim 

has ultimate merit on habeas corpus, I do not think there are “extraordinary 

circumstances” here warranting relief for Jasper under Rule 60(b)(6). See

Gonzalez, 545 U.S. at 535 (Rule 60(b) motions may be granted only in 

“extraordinary circumstances”). 

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I would deny Jasper’s motions for lack of “extraordinary circumstances” 

and I would not reach, as the majority has reached, the other procedural 

issues presented. Because of the extremely expedited manner in which this 

appeal has been decided, this court has not had adequate time to grapple 

with these complex questions of law.2

Having said that, I respectfully concur in the judgment.

2 I find one part of the majority’s reasoning particularly problematic. The majority 

cites Rodwell v. Pepe, 324 F.3d 66 (1st Cir. 2003) (also cited in Gonzalez, 545 U.S. at 531)

and says, “60(b) motions raising additional facts for consideration . . . should be evaluated 

as second-or-successive habeas petitions.” Ante, at 8. Unfortunately, the majority’s broad 

reference to “additional facts” fails to address any potential distinction between additional

evidence, such as, say, when the Rule 60(b) movant presents the court with a newlyprocured affidavit from an expert witness, and court documents, such as, say, when the 

Rule 60(b) movant presents a portion of the trial transcript that was previously lost due to 

technical error and has now been recovered. It seems doubtful that we would treat the 

latter case no differently than the former and, in both cases, fault the movant for bringing 

us “additional facts” and conclude that his Rule 60(b) motion is truly a successive habeas 

petition in disguise. Here, the “additional facts” are jury questionnaires, which, arguably, 

should fall into the latter category rather than the former. When an appropriate case 

presents itself, the court should give this issue more consideration than this extremely 

expedited appeal allowed.

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