IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70025

DUANE EDWARD BUCK,

Petitioner–Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee.

Appeal from the United States District Court

 for the Southern District of Texas

USDC No. H-04-3965

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Duane Edward Buck was convicted in a Texas state court of capital

murder and was sentenced to death. He is currently scheduled to be executed

on September 15, 2011, and seeks a stay of that execution. He challenges two

orders from the district court denying relief and seeks a certificate of

appealability (COA) from this court, raising two issues. With regard to Buck’s

contention that reasonable jurists could debate the merits of his Equal

United States Court of Appeals

Fifth Circuit

F I L E D

September 14, 2011

Lyle W. Cayce

Clerk

 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.

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Protection and Due Process claims, we treat his application for a COA as an

application for permission to file a successive habeas petition, and we DENY

that application. We DENY a COA with regard to Buck’s contention that

reasonable jurists could debate the district court’s disposition of a motion under

Rule 60 of the Federal Rules of Civil Procedure to reopen an earlier judgment

entered by the district court denying a petition for habeas corpus relief. We

DENY his request for a stay of execution. 

I

The facts regarding Buck’s conviction and sentencing are set forth in our

previous opinion in this case, and we recount them only briefly here. Buck was 1

convicted by a jury in a Texas state court for murdering Kenneth Butler and

Buck’s former girlfriend, Debra Gardner, during the same criminal transaction. 

Buck entered Gardner’s home, where his sister was visiting, inflicted serious

gunshot wounds on his sister, fatally shot Butler, and then chased Gardner into

the street as she and her children attempted to flee. He shot and killed Gardner

in view of her two children. Buck has never contended that he was not the

shooter. 

During the punishment phase of his trial, Buck called Dr. Walter Quijano,

a clinical psychologist, as an expert witness to testify on the likelihood of Buck’s

future dangerousness. On direct examination, Dr. Quijano testified that he had

considered several statisticalfactors when evaluating Buck’s potential for future

dangerousness, including but not limited to age, sex, race, social economics,

history of violence, and history of substance abuse. Regarding race, Dr. Quijano

stated: “It’s a sad commentary that minorities, Hispanics and black people, are

over represented in the criminal justice system.” 

Dr. Quijano also testified that Buck suffered from dependent personality

Buck v. Thaler, 345 F. App’x 923 (5th Cir. 2009). 1

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disorder, which is characterized by an unhealthy reluctance to let go of past

relationships, even to the point of violent or destructive behavior. According to

Dr. Quijano, however, Buck was unlikely to commit future acts of violence

because he would be unable to develop similar dependent relationships in jail. 

Basing his opinion on a combination of statistical, environmental, and clinical

factors listed in his expert report, Dr. Quijano concluded that Buck would not

likely pose any future danger to society if he were incarcerated.

On cross-examination, the prosecutor questioned Dr. Quijano regarding

the several factors that he had mentioned during direct examination. At one

point, the prosecutor — without objection from Buck’s defense counsel — asked

Dr. Quijano about his consideration of both race and sex as relevant factors in

his future-dangerousness analysis, which led to the following exchange:

Q: You have determined that the sex factor, that a male is more

violent than a female because that’s just the way it is, and

that the race factor, black,increases the future dangerousness

for various complicated reasons; is that correct?

A: Yes.

During closing arguments, Buck’s defense counsel recalled for the jury Dr.

Quijano’s earlier testimony that there was “a very low probability that [Buck]

would ever commit an act of violence.” In rebuttal, the prosecution also

referenced Dr. Quijano’s testimony, stating — again without objection from

defense counsel — that Dr. Quijano, “who had a lot of experience in the Texas

Department of Corrections, . . . told you that there was a probability that [Buck]

would commit future acts of violence.” The prosecution made no reference

whatsoever to Buck’s race (African-American) or to Dr. Quijano’s use of race as

a statistical factor for determining future dangerousness.

Based on the jury’s answers to the special issues submitted regarding

punishment, Buck was sentenced to death in 1997. His conviction and sentence

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were affirmed by the Texas Court of Criminal Appeals in 1998. Buck filed two 2

state habeas petitions, the first of which the Texas Court of Criminal Appeals

denied, and the second of which that court dismissed as an abuse of the writ. 

Buck pursued habeas relief in federal district court. That court denied relief,

and Buck sought a COA from this court. We denied that application in 2009.3

Buck initiated the present proceedings in September 2011. His most

recent filings in the district court and our court recount that in June 2000, John

Cornyn, who was then the Attorney General of the State of Texas, made a public

statement, released to the press, that in six capital cases, including Buck’s,

questioning of an expert witness, Walter Quijano, at the sentencing stage in each

of these cases had injected race into the proceedings. Buck asserts that in this

same public statement, the Attorney General announced that the State of Texas

would not contest equal protection claims in federal courts in those six cases and

would not assert any procedural bars to the assertion of such equal protection

claims in federal habeas proceedings. At that time, Buck’s request for habeas

relief in state court was pending. He did not file his first petition for habeas

corpus relief in federal district court until October 14, 2004.

With the exception of Buck’s case, the Attorney General of Texas did not

raise procedural bars in federal habeas proceedings to the assertion of claims

regarding the testimony of Quijano, and each of the other five individuals

received a new trial. When Buck challenged the evidence that was elicited from

Quijano, and the State’s use of it, in his federal habeas proceeding, the State

contended that this claim was procedurally barred. The State asserted that in

Buck’s case, unlike at least two of the other cases, Buck had called Quijano as

a defense witness. This, the State argued, distinguished Buck’s case from those

Buck v. Thaler, No. 72, 810 (Tex. Crim. App. Apr. 28, 1999). 2

Buck, 345 F. App’x 923. 3

4

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in which the State had called Quijano as a prosecution witness. The district

court denied habeas relief. We denied his application for a COA.4

Buck now contends that the State made affirmative misrepresentations 

and failed to disclose that in at least two of the six cases identified by the

Attorney General in 2000, those involving Carl Blue and John Alba, the

defendants had called Quijano as a defense witness. Buck contends that the

State has omitted any mention of the similarities between Buck’s case and these

two cases in which habeas relief was obtained, and that because of the State’s

misrepresentations and omissions, the district court and this court were misled.

In September of this year, 2011, Buck filed a motion in the district court

seeking relief from the district court’s July 24, 2006 order. After that motion

was denied, Buck filed a motion to alter or amend the district court’s September

9, 2011 order. The district court denied that motion on September 12, 2011. 

Buck now seeks relief in this court.

II

Although Buck asserted his challenges in the district court citing Federal

Rule of Civil Procedure 60, the Supreme Court in Gonzalez v. Crosby made clear

that a Rule 60(b) motion is to be treated as a successive habeas petition if it

asserts or reasserts claims that there was error in a state court conviction.5

Buck’s first issue in his application for a COA in this court is that we should

reconsider whether reasonable jurists could debate whether the State violated

the equal protection clause in inserting race into his trial during the sentencing

phase. He asserts that in the proceedings leading to our prior decision, we were

misled by the Attorney General’s briefing and omissions in that briefing

regarding the other five cases in which Quijano testified. He asks us to revisit

Id.

4

 545 U.S. 524, 530-31 (2005). 5

5

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our prior disposition of the issues he raised regarding Quijano and to rule in his

favor. 

Buck is “assert[ing] [a] federal basis for relief from a state court’s

judgment of conviction.” This constitutes a successive habeas petition even 6

though he labeled the claim in district court as a Rule 60 motion. The district

court therefore had no jurisdiction to resolve Buck’s claim because this court had

not given Buck permission to file a successive habeas petition. However, 7

treating the request for relief in this court as an application for permission to file

a successive habeas petition, we deny that request. 

A claim presented in a successive habeas that was not presented in a prior

application “shall be dismissed unless the applicant shows that the claim relies

on a new rule of constitutional law” or the that “factual predicate for the claim

could not have been discovered previously through the exercise of due

diligence . . . .” Buck’s claim is not based on a new rule of constitutional law or 8

newly discovered facts. Buck makes no effort to show that the facts upon which

he relied “could not have been discovered.” Because Buck has failed to meet the

standard required for this court to consider a successive habeas corpus

application, we have no discretion in the matter. 

The existence of the other five cases in which Quijano testified was known

to Buck at the time he first sought habeas relief in federal district court in 2004. 

Similarly, at that time, the Attorney General’s position that the procedural bar

should not apply in the other five cases was a matter of public record, and new

trials had been granted in at least four of the cases that had been identified,

along with Buck’s, in 2000. 

See id. at 530.

6

 28 U.S.C. § 2244(b)(3)(A). 7

Id. § 2244(b)(2). 8

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When the State asserted the procedural bar in Buck’s federal habeas

proceeding filed in 2004, Buck certainly knew that in his case, the State was not

following the same path that it had taken in the other cases regarding Quijano’s

testimony and the assertion of procedural bars. Indeed, one of the grounds on

which he sought relief in his 2004 filing in federal district court was that he

should receive relief just as the other defendants had. 

Even if Buck had been able to show that the factual predicate for his claim

could not have been discovered through the exercise of due diligence, he would 9

still be required to show that “the facts underlying his claim, if viewed in light

of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense.” Buck has not 10

pointed to anything that suggests he could meet this standard. He has not met

the requirements for a successive habeas petition.

Under AEDPA, the role of the federal courts in reviewing state convictions,

even for the death penalty, is very limited. This role is even more narrow when 11

the claims are raised for the first time in a successive federal habeas many years

after the facts upon which the claims are based have occurred. Buck has made 12

no effort to meet the high hurdles AEDPA requires of such actions.

To the extent that Buck’s contentions regarding the first issue identified

in his application is not a successive habeas petition, but instead could be

construed as cognizable under Rule 60, we would deny a COA for the reasons

that we consider below with respect to Buck’s second issue.

Id. § 2244(b)(2)(B)(i). 9

Id. § 2244(b)(2)(B)(ii) 10

 28 U.S.C. § 2244(a)-(b)(2).

11

Id. 12

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III

The second issue that Buck brings forth in his application to this court is

his contention that reasonable jurists could debate the merits of his equal

protection and due process claims because of the misleading record created by

the Attorney General’s alleged misrepresentations and omissions. We consider

this to be a contention that there was “some defect in the integrity of the federal

habeas proceedings.”13

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a

petitioner to obtain a COA to appeal a district court’s denial of his habeas

petition. Despite this court’s earlier holding in Dunn v. Cockrell, a COA is 14 15

generally required to appeal the denial of a Rule 60(b) motion in a habeas

proceeding. We have read Dunn’s exception narrowly, holding that a COA is not

required to appeal the denial of a Rule 60(b) motion “only when the purpose of

the motion is to reinstate appellate jurisdiction over the original denial of habeas

relief.” Buck’s Rule 60(b) motion is not for the purpose of reinstating appellate 16

jurisdiction over the original denial of habeas relief. Therefore, Buck is required

to obtain a COA before appealing the district court’s denial of his Rule 60(b)

motion. Buck is also required to obtain a COA before appealing the district

court’s denial of his Rule 60(d) motion.17

We may only grant a COA if the petitioner makes “a substantial showing

Gonzalez, 545 U.S. at 532.

13

 28 U.S.C. § 2253(c)(1).

14

 302 F.3d 491, 492 (5th Cir. 2002). 15

Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); see also Williams

16

v. Quarterman, 293 F. App’x 298, 315 (5th Cir. 2008).

Jackson v. Thaler, 348 F. App’x 29, 31-32, 34-35 (5th Cir. 2009). 17

8

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of the denial of a constitutional right.” “A petitioner satisfies this standard by 18

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” In 19

making this determination, we conduct a “threshold inquiry” that involves “an

overview of the claims in the habeas petition and a general assessment of their

merits” but it “does not require full consideration of the factual or legal bases

adduced in support of the claims.” In death-penalty cases, we resolve in favor 20

of the petitioner any doubts whether a COA should issue. In this case, 21

however, we have no doubts. Buck has not demonstrated that jurists of reason

could disagree with the district court’s resolution of the issues presented in

Buck’s latest motions.

We first consider the district court’s denial of Buck’s motion for relief from

judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. Buck

raised two grounds in that motion. The first was based on Rule 60(b)(6), which

allows a district court to “relieve a party or its legal representative from a final

judgment, order, or proceeding for . . . any other reason that justifies relief.”22

The district court denied the motion as untimely because it was not brought

within a reasonable time as required by Rule 60(c)(1), and Buck did not show 23

 28 U.S.C. § 2253(c)(2).

18

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 19

Id. at 336. 20

Id. at 460. 21

 FED. R. CIV. P. 60(b)(6). 22

 FED. R. CIV. P. 60(c)(1). 

23

9

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good cause for the delay. Denial of a Rule 60(b) motion is reviewed for an 24

abuse of discretion. A court’s determination of the timeliness of such a motion 25

is also reviewed for abuse of discretion. 

26

We hold that the district court did not abuse its discretion in determining

that Buck’s Rule 60(b) motion was not brought within a reasonable time. He did

not bring the motion for over five years after the district court’s entry of final

judgment and more than a year after the Supreme Court denied certiorari. Such

an excessive delay is not reasonable under the circumstances of this case. Buck

has not presented any facts or even arguments that would constitute good cause

for the delay. 

Buck was fully aware of the other five cases on which he now bases his

request for relief. In his briefing in our court in 2006, Buck argued at some

length that he should be accorded the same relief as the other five defendants. 

For example, he asserted:

In Texas, in at least five other cases, individuals raise

identical habeas claims as Appellant, and in no case did the federal

courts find those claims procedurally default[ed]. The only

difference is that in each of those cases, the Respondent conceded

error. This case should not be any different.

At another juncture in his briefing to this court in 2006, Buck noted, “the

Respondent, unlike the instant case, expressly waived exhaustion and

procedural default regarding issues relating to Quijano.” 

The only additional argument that Buck now makes, five years later, is

See In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (“Motions under Rule 60(b) must

24

be made ‘within a reasonable time,’ unless good cause can be shown for the delay.” (citing

Pryor v. U.S. Postal Serv., 769 F.2d 281, 287-88 (5th Cir.1985)).

Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir. 2010), cert. denied, 131 S.Ct. 2992 25

(2011).

Lindy Investments III v. Shakertown 1992 Inc., 360 F. App’x. 510, 512 (5th Cir. 2010); 26

see also Matter of Al Copeland Enterprises, Inc., 153 F.3d 268, 271–72 (5th Cir. 1998). 

10

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that in two of the five cases, those involving Blue and Alba, the defendants

rather than the State, called Quijano as a witness. These facts were

ascertainable many years ago. Publicly available court opinions that Buck has

attached to his filings in the district court and in this court reflect that both Blue

and Alba received new sentencing hearings in 2000. We note that Buck’s most

recent claim in district court was not that Buck received disparate treatment as

compared to Blue and Alba. He expressly disclaimed such an intention in his

submission to the district court, saying, “Mr. Buck does not assert the second

equal protection violation [that he was treated disparately from Blue and Alba]

as a substantive claim for habeas corpus relief. He mentions it only to

emphasize the extraordinary nature of the circumstances warranting relief from

the judgment.”

We conclude that Buck has not presented the extraordinary circumstances

needed to justify the grant of a Rule 60(b)(6) motion. The concept that asking 27

a jury to find future dangerousness based on one’s race violates the Equal

Protection clause is certainly not a new or novel one. Yet, Buck did not raise any

argument to this effect in his direct appeal to the Texas Court of Criminal

Appeals or in his first state court application for habeas relief. It was only after

the Attorney General confessed error in another case in which Quijano had

appeared as an expert witness on future dangerousness that Buck, for the first

time, raised the issue in a second application for habeas relief to the Texas Court

of Criminal Appeals in 2002. That court denied the application as an abuse of

the writ. These circumstances are to us indistinguishable from those before the

Supreme Court in Gonzalez. The defendant in that case had failed to raise a 28

See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (explaining that “our cases have 27

required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’

justifying the re-opening of a final judgment”).

 545 U.S. 524, 537-38 (2005). 28

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question regarding the statute of limitations under AEDPA. The Supreme

Court’s subsequent decision in Artuz was a change in the law for some circuits

and made clear that the district court in Gonzalez’s case had incorrectly applied

limitations. The Supreme Court held that “[t]he change in the law worked by 29

Artuz is all the less extraordinary in petitioner’s case, because of his lack of

diligence in pursuing review of the statute-of-limitations issue.” The Court 30

likened Gonzalez’s circumstance to that of a defendant who freely and

voluntarily decided not to appeal a particular issue, “although the favorable

ruling in the companion case made it appear mistaken in hindsight.”31

We have a similar situation before us. Buck was free to raise equal

protection arguments regarding the State’s use of Quijano’s testimony in his

state court appeal and initial state court habeas application, just as another

Texas defendant had raised the issue with success. Buck did not raise the issue. 

It was only after the Attorney General confessed error in another case that Buck

filed a second state court habeas petition that was denied, on independently

adequate state procedural grounds. The Attorney General’s confession of error

is not a change in the law as was Artuz. It was a change in position as to

whether well-settled law applied under particular circumstances. Buck now

attempts to enforce statements made by the Attorney General, wholly outside

of any judicial proceeding involving Buck, when after further review, the

Attorney General changed his analysis of how well-settled law applied in Buck’s

case. 

Buck also sought relief from the district court pursuant to Rule 60(d)(3),

arguing that the Attorney General committed fraud on the court. Rule 60(d)

 531 U.S. 4 (2000).

29

Gonzalez 545 U.S. at 537.

30

Id. at 538. 31

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provides that Rule 60 does not limit a court’s power to set aside a judgment for

fraud on the court. Fraud on the court allows the district court to set aside a 32

judgment without a strict time bar. Whether relief should be granted based on 33

fraud on the court under Rule 60(d) is committed to the sound discretion of the

district court, and district courts are given wide discretion in denying such

motions.34

Buck argues that the office of the Attorney General committed fraud on

the court by initially representing that it would not assert any procedural

defenses against Buck but then subsequently failing to honor this representation

when it asserted a procedural bar in the federal habeas proceedings. Buck also

contends that the State misrepresented in its briefing regarding Buck’s original

federal habeas petition that in each of the other five cases in which Quijano

testified, Quijano had been called by the prosecutor as a prosecution witness

when in fact, both Blue and Alba had called Quijano as a defense expert. 

Our court has explained that “only the most egregious misconduct, such

as bribery of a judge or members of a jury, or the fabrication of evidence by a

party in which an attorney is implicated, will constitute fraud on the court.”35

Under this definition, the district court acted within its discretion in concluding

that the Attorney General did not commit fraud on the court. The Attorney

General’s actions, even taking Buck’s view of them as true, in no way resemble

 FED. R. CIV. P. 60(d). 32

Jackson v. Thaler, 348 F. App’x 29, 34 (5th Cir. 2009). 33

Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357, 1361 (Fed. Cir. 2007); see also 34

Jackson v. Thaler, 348 F. App’x 29, 34 n.6 (5th Cir. 2009) (“Rule 60(d)(3) contains the “fraud

on the court” provision that was part of the penultimate sentence of Rule 60(b) before its 2007

revision. The change was stylistic only, see Fed.R.Civ.P. 60, Advisory Committee Notes, 2007

Amendments, and thus interpretations of the prior “fraud upon the court” language apply

equally to the new Rule 60(d)(3).”).

Rozier v. Fort Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). 

35

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bribery of a judge or jurors, the fabrication of evidence, or rise to the level of

egregiousness that constitutes fraud on the court. Additionally, as the district

court noted, Buck has not identified a legal basis for the claim that the Attorney

General’s statements created legally enforceable rights or later precluded him

from distinguishing Buck’s case from the other cases. 

Buck contends that in granting relief to Blue and Alba, the courts in those

cases had determined that there were constitutional violations in circumstances

indistinguishable from his case. Buck appears to implicitly argue that if the

district court and this court had known the similarities between Buck’s case and

these cases and had known that the other courts had found constitutional

violations, the district court and this court would have been constrained to

conclude that reasonable jurists could not only debate whether the

circumstances of “Buck’s case gave rise to a constitutional issue, several courts,

including this Court, had already found that it did.” However, this court was

involved only in Alba’s case, and we did not hold that there was constitutional

error. We vacated based on the State’s confession of error in that case. Buck

argues that we had an independent duty to ascertain whether there was a

constitutional violation notwithstanding the State’s confession of error. We

disagree. Significant questions regarding the continued existence of a live case

or controversy would be presented if this court were to ignore the parties’

withdrawal of matters in dispute. In Blue’s case, the district court concluded

that there had been a constitutional violation as a result of Quijano’s testimony

but then immediately noted the State’s confession of error, observing “nothing

more needs to be said on this point.” The district court’s reasoning in a

particular case applying the law to the facts before it is not binding on another

district court or this court. In any event, it is difficult to divorce the State’s

confession of error from the mix in Blue’s case. 

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The important point is that the failure of the State to apprise the district

court or this court that Blue and Alba had called Quijano as their own witness

in their respective trials and that the State had subsequently confessed error in

each of those cases did not amount to fraud on the court. This court examined

the record in Buck’s case, applied applicable law, and concluded that were we to

reach the merits of the issue of whether Buck’s constitutional rights were

violated by the State’s questioning of Quijano and the State’s closing argument,

we would conclude that Buck could not make a substantial showing of the

deprivation of a constitutional right. We said: 36

[W]e are satisfied that Buck’s claim would fail on the merits. It was

Buck, not the prosecution, who introduced Dr. Quijano as an expert

witness and then solicited testimony from him regarding the use of

race as one of several statistical factors for predicting future

dangerousness. Buck cannot now claim surprise at the opinions

that Dr. Quijano expressed. Indeed, in the punishment phase of the

trial, it was Buck’s defense counsel who argued for the admission of

Dr. Quijano’s expert report into evidence, despite language in the

report suggesting that Buck’s race is one factor that might argue in

favor of a finding of future dangerousness. Buck and his counsel

presumably made this strategic determination because they

believed that the potential benefit of Dr. Quijano’s ultimate

conclusion — that Buck was not likely to pose any future danger to

society if he were incarcerated — outweighed any risk of exposing

the jury to Dr. Quijano’s less favorable opinions. Despite Buck’s

having opened the door to this testimony during his direct

examination, the prosecution referenced the race factor only once

during cross-examination, and never mentioned it at all during

closing arguments. Even if we were to consider Buck’s petition on

the merits, we would conclude that it fails to demonstrate a

substantial showing of the deprivation of a constitutional right.37

Buck has offered no basis on which we can disregard our prior holding on this

Buck v. Thaler, 345 F. App’x 923, 930 (5th Cir. 2009).

36

Id.

37

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matter.

IV

Finally, Buck requests a COA for the district court’s denial of his motion

to alter judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Like

a Rule 60 motion, Buck must obtain a COA to appeal the denial of a Rule 59(e)

motion. Buck asserts the district court relied on misrepresentations made by 38

Respondent in denying his Rule 60 motion. We review the district court’s denial

of a Rule 59(e) motion for an abuse of discretion. A motion to alter or amend 39

under Rule 59(e) must clearly establish either a manifest error of law, present

newly discovered evidence, or rely on an intervening change in controlling law.40

In denying Buck’s motion, the district court rejected any claims that it relied on

Respondent’s alleged misrepresentations in reaching a decision. Instead, the

district court stated its denial was based on the record and controlling law. 

Buck’s Rule 59(e) motion fails to cite a manifest error of law, present newly

discovered evidence, nor does it rely on an intervening change in controlling law. 

Because we conclude that jurists of reason could not disagree with the district

court’s resolution of Buck’s Rule 59(e) motion, we deny his COA. 

41

* * *

We treat Buck’s request for a COA on the issue of whether his due process

and equal protection claims should be reconsidered as an application for

permission to file a successive habeas petition, and that application is DENIED. 

Williams v. Quarterman, 293 F. App’x 298, 315 (5th Cir. 2008). 

38

Schiller v. Physicians Resource Grp., Inc., 342 F.3d 563, 566 (5th Cir. 2003). 

39

Id. at 567. 40

 We are provided with no explanation for why the State declined to act consistently

41

with its Attorney General's public announcement with respect to petitioner Buck. But given

the procedural rules we must follow, even if we were inclined to do so we have no authority

to grant Buck relief.

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We DENY Buck’s application for a COA as to his contention that reasonable

jurists could debate the district court’s disposition of his motion to reconsider

judgment. We DENY the request for a stay of execution.

17

Case: 11-70025 Document: 00511602953 Page: 17 Date Filed: 09/14/2011