*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/22/96

TENTH CIRCUIT

BENJAMIN BREWER,

Petitioner - Appellant, No. 96-5100

v. (N.D. Oklahoma)

RON WARD, Warden of the Oklahoma

State Penitentiary,

Respondent - Appellee.

(D.C. No. 92-C-487-BU) 

ORDER AND JUDGMENT*

Before ANDERSON, TACHA, and KELLY, Circuit Judges.

Benjamin Brewer appeals from an order of the district court denying his Motion to

Reconsider Judgment Pursuant to Federal Rule of Civil Procedure 60(b), and denying his

application for a stay of execution. The district court’s order was entered on April 9,

1996. We received Mr. Brewer’s notice of appeal, request for a stay, and brief on Friday

afternoon, April 19. We ordered the state to file its response brief by noon today,
1This panel has closely monitored this petition since it was initially filed in the

United States District Court, and considerable effort has been expended on the issues

raised. This panel has had the benefit of all the briefs filed with the district court. 

Accordingly, the panel has determined unanimously that oral argument would not be

useful, that no further briefing is necessary in this court, and that further delay in this

appeal is not warranted. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Appellant’s

request for oral argument is therefore denied and the case is ordered submitted without

oral argument.

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Monday, April 22. Mr. Brewer is scheduled to be executed in the early morning hours of

Friday, April 26, 1996.1 

Mr. Brewer raises a single issue in this appeal: whether the district court properly

held that the Findings of Fact, Conclusions of Law and Order and Judgment entered by

district court Judge Thomas Brett on February 10, 1994, dismissing Mr. Brewer’s habeas

petition, need not be vacated for violation of 28 U.S.C. § 455(a). He also seeks a stay of

execution and transfer of his case to a different judge for the purpose of instituting new

proceedings on the issues raised in his amended habeas corpus petition. 

Several courts have determined that a Fed. R. Civ. P. 60(b)(6) motion raising new

claims may be treated as the functional equivalent of a successive habeas petition,

implicating abuse of the writ, procedural bar and exhaustion principles. Hunt v. Nuth, 57

F.3d 1327, 1339 (4th Cir. 1995), cert. denied, 116 S. Ct. 724 (1996); Guinan v. Delo, 5

F.3d 313, 316 (8th Cir. 1993); Clark v. Lewis, 1 F.3d 814, 825 (9th Cir. 1993) (but

deciding the Rule 60(b) claim also on the merits in the alternative); Williams v. Whitley,

994 F.2d 226, 230 n.1 (5th Cir.), cert. denied, 114 S. Ct. 608 (1993); Bolder v.
2Furthermore, the request for relief is clearly untimely under Rule 60(b), coming

more than two years after our decision in Harris v. Champion, 15 F.3d 1538 (10th Cir.

1994). See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 868 (1988).

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Armentrout, 983 F.2d 98, 99 (8th Cir. 1992), cert. denied, 506 U.S. 1088 (1993); Blair v.

Armentrout, 976 F.2d 1130, 1134 (8th Cir. 1992), cert. denied, 508 U.S. 916 (1993);

Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.) (applying exhaustion requirement to

Rule 60(b)(6) motion but otherwise not deciding the issue), cert. denied, 498 U.S. 811

(1990); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12 (11th Cir. 1989). Other courts

including our own, without addressing the issue, have evaluated the denial of Rule 60(b)

relief in the habeas context for an abuse of discretion. See Resnover v. Pearson, 9 F.3d

113, 1993 WL 430159 (7th Cir. 1993) (unpublished order); Robison v. Maynard, 958

F.2d 1013, 1018 (10th Cir.), cert. denied, 503 U.S. 929 (1992); May v. Collins, 961 F.2d

74 (5th Cir.), cert. denied. 504 U.S. 901 (1992). We need not decide the issue because

even under the abuse of discretion standard for the denial of Rule 60(b)(6) relief, we

conclude that the district court acted well within its discretion.2

Mr. Brewer’s argument is that the district court misapplied the harmless error

standard of Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), in

determining that the February 10 order need not be vacated. In particular, he claims that

the court erroneously focused on harm or error in the context of the merits of Mr.

Brewer’s own case, and he suggests, without citation of supporting authority, that the

court should have looked at systemic harm. While we agree that systemic harm is a
3

In our affirmance of the denial of Mr. Brewer’s first habeas petition, we described

the crime as follows:

On August 17, 1978, the semi-nude body of Karen Joyce Stapleton

was discovered in her Tulsa apartment. She had been stabbed twenty-one

times. Mr. Brewer confessed to the crime and physical evidence introduced

at trial corroborated that confession.

Brewer v. Reynolds, 51 F.3d 1519, 1520 (10th Cir. 1995), cert. denied, 116 S. Ct. 936

(1996).

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consideration, we disagree that it is the only consideration. Any error resulting from the

violation of § 455(a) must also be analyzed and determined as it relates to Mr. Brewer and

his own case. 

Mr. Brewer does not argue that he is actually innocent of the crime,3 nor does he

claim any constitutional error occurred at his trial, nor does he claim any actual bias

resulting from the involvement of Judge Thomas Brett, the judge who erroneously failed

to recuse himself from Mr. Brewer’s habeas proceeding, in which an evidentiary hearing

was held. In recently determining that a conviction occurring in a case in which § 455(a)

was violated because the trial judge erred in failing to recuse herself, the Fifth Circuit

made just such a case-specific inquiry:

After a thorough review of the trial record, we are convinced that the

conviction should stand. First, Appellant does not contend that Judge

Melinda Harmon was actually biased during the trial phase, nor does she

allege an explicit nexus between the alleged errors and the appearance of

bias. Second, Appellant never contends that she suffered any harm during

trial because of any alleged bias or prejudice. Third, we find neither an

indication of bias in the trial record nor any error requiring reversal.
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United States v. Jordan, 49 F.3d 152, 158 (5th Cir. 1995); see also Travelers Ins. Co. v.

Liljeberg Enters., Inc., 38 F.3d 1404, 1412-13 (5th Cir. 1994). 

In holding that Judge Brett’s order need not be vacated, the district court relied in

part on Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988), cert. denied, 490

U.S. 1066 (1989), which Mr. Brewer claims is wrong. In Parker, in considering the third

prong of the Liljeberg harmless error standard, “the risk of undermining the public’s

confidence in the judicial process,” Liljeberg, 486 U.S. at 864, the court observed that a

determination that § 455(a) had been violated would itself “instill greater confidence in

our judiciary,” Parker, 855 F.2d at 1527, without the necessity of also vacating the

judgment. Indeed, on this latter point the Parker court said, “[i]n fact, if we reverse and

vacate a decision that we have already determined to be proper, the public will lose faith

in our system of justice because the case will be overturned without regard to the merits

of the [underlying] claims.” Id. We have cited this analysis with approval in applying the

harmless error standard. See Harris v. Champion, 15 F.3d at 1572.

We have carefully reviewed all filings in this case and the record before us in this

appeal. In our previous opinion affirming the district court order Mr. Brewer would have

us now vacate, we explained that we had “exhaustively reviewed” the record in the case. 
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We AFFIRM the denial of Mr. Brewer’s Motion, for substantially the reasons set forth in

the district court’s order. We DENY his request for a stay of execution. The mandate

shall issue forthwith. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge