[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11661

____________________

JAMIE MILLS, 

Petitioner-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF 

CORRECTIONS, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 6:17-cv-00789-LSC

____________________

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2 Order of the Court 24-11661

Before WILLIAM PRYOR, Chief Judge, and LUCK and ABUDU, Circuit 

Judges.

WILLIAM PRYOR, Chief Judge:

Jamie Mills, an Alabama inmate scheduled to be executed on 

May 30, 2024, for committing two murders in 2004, seeks a certificate of appealability for the denial of his motion for relief from the 

judgment denying his petition for a writ of habeas corpus in 2020. 

See FED. R. CIV. P. 60. Because no reasonable jurist could conclude 

that the district court abused its discretion, we deny Mills’s application and deny as moot his motion to stay his execution.

I. BACKGROUND

In 2007, an Alabama jury convicted Jamie Mills of the capital 

murders of Floyd and Vera Hill. The trial court accepted the jury’s 

recommendation and sentenced him to death. See Mills v. State, 62 

So. 3d 553, 556 (Ala. Crim. App. 2008). After Mills and his commonlaw wife, JoAnn, plotted to rob the Hills, Mills “brutally executed” 

the Hills “with a machete, tire tool[,] and ball-peen hammer.” Id. at 

557 (citation and internal quotation marks omitted). JoAnn testified against her husband at his trial and later pleaded guilty to murder and was sentenced to life with the possibility of parole.

Mills moved for a new trial on the ground that JoAnn had perjured herself by denying that she testified against him to procure 

leniency for herself. The trial court denied the motion. The Alabama Court of Criminal Appeals affirmed, see id. at 574, and the 

Supreme Court of Alabama denied Mills’s petition for a writ of 

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certiorari on that issue. Mills also later unsuccessfully sought postconviction relief under Alabama Rule of Criminal Procedure 32.

Mills petitioned the district court for a writ of habeas corpus in 

2017. The district court denied relief on November 30, 2020. We

denied his motion for a certificate of appealability, and the Supreme Court denied his petition for a writ of certiorari on April 18, 

2022.

On January 29, 2024, the State of Alabama moved to set an execution date. In March 2024, Mills filed a successive motion under 

Rule 32 in state court. With that motion, he offered, for the first 

time, an affidavit by JoAnn Mills’s attorney, Tony Glenn. Glenn alleged that he had “had several discussions” in 2007 with the district 

attorney, Jack Bostick, “about a plea offer based on [JoAnn’s] tragic 

mitigation history and her potential testimony at Jamie Mills’[s] upcoming trial.” Glenn alleged that Bostick and the victims’ family 

“agreed” that JoAnn would receive a plea deal for “life with parole,” 

instead of capital murder, if she “testified truthfully” at Mills’s trial.

Glenn alleged that these discussions involving Bostick and the victims’ family were recorded on his fee declaration, which Mills attached. And Glenn alleged that the first time he spoke with “any 

attorneys from the Equal Justice Initiative”—which has represented Mills since 2009—about the matter was February 23, 2024, 

nearly two years after the Supreme Court denied certiorari.

On April 5, 2024—three-and-a-half years after the district court 

denied his habeas petition—Mills moved for relief under Federal 

Rule of Civil Procedure 60. He argued that “[n]ewly discovered 

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evidence”—the Glenn affidavit and attached declaration—established that Bostick had “engaged in egregious misconduct” by “affirmatively and falsely stat[ing]” to the trial court that “there was 

no deal” with JoAnn to testify against her husband. Mills sought 

relief under Rule 60(b)(2), Rule 60(b)(3) and (d), and Rule 60(b)(6).

The district court denied relief on each ground. First, under 

Rule 60(b)(2), which allows relief for “newly discovered evidence” 

that “could not have been discovered” with “reasonable diligence” 

in time to move for a new trial, the district court denied the motion 

as untimely. It explained that the motion had to be filed “no more 

than a year after the entry of the judgment or order” from which 

the party seeks relief. See FED. R.CIV. P. 60(c)(1). It alternatively denied relief because Mills failed to exercise reasonable diligence. 

Mills had known since 2007 that Glenn represented JoAnn and had

been arguing since then that she perjured herself. Yet Mills did not 

approach Glenn until 2024 to discuss whether JoAnn struck a secret 

plea deal. Mills “offer[ed] no reason why he could not have spoken 

with Glenn or obtained [his] . . . fee declaration” before then. Second, the district court denied relief under Rule 60(b)(3) and (d). It 

ruled that relief under Rule 60(b)(3)—for the opposing party’s 

“fraud,” “misrepresentation,” or “misconduct”—was untimely. See

id. It also ruled that Mills failed to prove that the State obtained 

Mills’s sentence through fraud on the court. It identified “misstate[ments]” in Glenn’s fee declaration, stated that Bostick had alleged in his affidavit that the State did not offer JoAnn a plea deal 

before she testified, and explained that, if Glenn’s affidavit “[were] 

to be believed,” Glenn would have sat silently in court in 2007 as he 

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knowingly watched both JoAnn and Bostick repeatedly perjure 

themselves. Third, the district court denied relief under 

Rule 60(b)(6), which allows relief for “any other reason that justifies relief.” It ruled that the motion was not “made within a reasonable time.” Id. R. 60(c)(1). And it denied Mills a certificate of appealability and his motion for a stay of execution.

II. STANDARD OF REVIEW

A party who seeks to appeal the denial of a motion for relief 

from a judgment denying habeas relief must obtain a certificate of 

appealability. See Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 

1263 (11th Cir. 2004), aff ’d on other grounds sub nom. Gonzalez v. 

Crosby, 545 U.S. 524 (2005). We may issue a certificate “only if the 

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must establish 

that jurists of reason could disagree with the resolution of his constitutional claims or that jurists could conclude that “the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Rule 60 

“vests wide discretion in [district] courts,” we ask whether a reasonable jurist could conclude that the district court abused its discretion. See Buck v. Davis, 137 S. Ct. 759, 777 (2017). A district court 

abuses its discretion when it applies an incorrect legal standard, follows improper procedures, makes clearly erroneous factual findings, or applies the law unreasonably. Loc. 703, I.B. of T. Grocery & 

Food Emps. Welfare Fund v. Regions Fin. Corp., 762 F.3d 1248, 1253 

(11th Cir. 2014).

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III. DISCUSSION

Mills seeks a certificate of appealability on three grounds. He 

argues that a reasonable jurist could conclude that the district court 

abused its discretion in denying relief under Rule 60(b)(2), 

Rule 60(b)(3) and (d)(3), and Rule 60(b)(6). We reject each argument.

A. No Reasonable Jurist Could Conclude That the District Court Abused 

its Discretion in Denying Relief Under Rule 60(b)(2).

Mills argues that reasonable jurists could debate whether the 

district court abused its discretion in denying his motion for relief 

under Rule 60(b)(2) as untimely. He argues that the time limit in 

clause (c)(1) does not apply to his motion because Rule 60 “does 

not limit” a court’s power to “set aside a judgment for fraud on the 

court.” See FED. R. CIV. P. 60(d)(3). He argues that Bostick committed fraud on the court.

No reasonable jurist could conclude that the district court 

abused its discretion in rejecting this argument. We interpret the 

Federal Rules based on their “plain text.” See City of Jacksonville v. 

Jacksonville Hosp. Holdings, L.P., 82 F.4th 1031, 1034 (11th Cir. 2023); 

see also Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d 1283, 1288 

(11th Cir. 2016). Rule 60(c)(1) states that a “motion under 

Rule 60(b)” “for reasons (1), (2), and (3)” must be made “no more 

than a year after the entry of the judgment or order” from which 

the movant seeks relief. FED. R. CIV. P. 60(c)(1). Mills sought relief 

from the November 30, 2020, judgment and filed his motion on 

April 5, 2024. Three-and-a-half years is “more than a year.” See id.

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B. No Reasonable Jurist Could Conclude That the District Court Abused 

its Discretion in Denying Relief Under Rule 60(b)(3) and (d)(3).

No reasonable jurist could conclude that the district court 

abused its discretion in denying Mills’s motion under Rule 60(b)(3) 

as untimely and under subsection (d)(3) on the merits. The time

limit in Rule 60(c)(1) expressly applies to relief under clause (b)(3) 

based on allegations of the opposing party’s fraud, misrepresentation, or misconduct. See id. Our precedent forecloses Mills’s argument to the contrary: when “more than one year passe[s] between 

the entry of the original judgment and the filing of [a motion under Rule 60(b)(3)], the plaintiff cannot seek relief under Rule 

60(b)(3).” Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1550–51 (11th 

Cir. 1985).

To be sure, there is “no time limit on setting aside a judgment” 

under Rule 60(d)(3). See 11 Charles Alan Wright, Arthur R. Miller 

& Mary Kay Kane, Federal Practice & Procedure § 2870 (3d ed. Apr.

2023). But a movant who seeks relief under clause (d)(3) must establish “fraud on the court,” FED. R. CIV. P. 60(d)(3), by clear and 

convincing evidence, see Booker v. Dugger, 825 F.2d 281, 283 & n.4 

(11th Cir. 1987). That standard is “demanding.” Miller-El v. Dretke, 

545 U.S. 231, 240 (2005). The movant must establish that the alleged 

fraud is “highly probable.” See Bishop v. Warden, GDCP, 726 F.3d 

1243, 1258 (11th Cir. 2013). Fraud on the court involves a “direct 

assault on the integrity of the judicial process.” 11 Wright, Miller 

& Kay, Federal Practice & Procedure § 2870. It “embrace[s] only that 

species of fraud” that officers of the court “perpetrate[]” against 

“the judicial machinery” and that “defile[s] the court itself.” Gore, 

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761 F.2d at 1551 (citation and internal quotation marks omitted). It

involves “an unconscionable plan or scheme.” See Davenport Recycling Assocs. v. Comm’r, 220 F.3d 1255, 1262 (11th Cir. 2000) (citation 

and internal quotation marks omitted) (describing fraud on the 

court in the context of challenges to a decision of the Tax Court). 

No reasonable jurist could conclude that the district court 

abused its discretion in ruling that Mills failed to establish that it is 

highly probable that the State hatched an unconscionable scheme. 

Mills does not dispute that “the dating of some of the relevant 

events is misstated” in Glenn’s fee declaration. For example, the

declaration states that Glenn attended trial on September 11 and 

12, 2007, to watch JoAnn testify. It is undisputed that JoAnn testified 

instead on August 22, 2007. Mills dismisses these inconsistencies as 

“scrivener’s errors” or an “inadvertent[]” “transposition of numbers,” but the district court did not abuse its discretion in declining 

to credit a fee declaration with blatant errors about the very events 

at the heart of this controversy. And no reasonable jurist could conclude that the district court abused its discretion in assessing the 

plausibility of Glenn’s affidavit. The district court concluded that, if 

the affidavit “[were] to be believed,” Glenn witnessed both Bostick 

and JoAnn repeatedly perjure themselves on August 22, 2007, yet 

said nothing and then, as the Commissioner says, “held his tongue 

for nearly seventeen years.” No reasonable jurist could conclude 

that the district court abused its discretion in ruling that Mills had 

not met the “demanding” standard of Rule 60(d)(3), see Dretke, 545 

U.S. at 240, for proving that the State “defile[d] the court itself,”

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Gore, 761 F.2d at 1551 (citation and internal quotation marks omitted).

C. No Reasonable Jurist Could Conclude That the District Court Abused 

its Discretion in Denying Relief Under Rule 60(b)(6).

Last, Mills argues that a reasonable jurist could conclude that 

the district court abused its discretion in denying the motion for 

relief under Rule 60(b)(6). He seeks relief on grounds identical to 

those on which he premised his requests for relief under 

Rule 60(b)(2) and (b)(3). But Rule 60(b)(6) states that a court may 

grant relief only “for . . . any other reason” than those listed in 

clauses (b)(1) through (b)(5). FED. R. CIV. P. 60(b)(6) (emphasis 

added); see Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 

863 (1988) (stating that Rule 60(b)(6) “grants federal courts broad 

authority to relieve a party from a final judgment . . . provided that 

the motion is . . . not premised on one of the grounds for relief 

enumerated in clauses (b)(1) through (b)(5)”). As a leading treatise 

on federal civil practice puts it, “much authority” establishes that 

“clause (6) and the first five clauses [of Rule 60(b)] are mutually exclusive” and that “relief cannot be had under clause (6) if it would 

have been available under the earlier clauses.” 11 Wright, Miller & 

Kane, Federal Practice & Procedure § 2864 (3d ed. Apr. 2023). 

No reasonable jurist could conclude that the district court 

abused its discretion in denying relief under Rule 60(b)(6). Were we 

to read the Rule as Mills urges, the one-year limit in subsection (c)(1) would be superf luous. And his reading would make 

clauses (b)(1) through (b)(5) altogether “pointless.” See Antonin 

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Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts § 26, at 176 (2012) (surplusage canon); see also United States v. 

Jicarilla Apache Nation, 564 U.S. 162, 185 (2011) (“[W]e are hesitant 

to adopt an interpretation . . . [that] renders superf luous another 

portion of th[e] same law.” (citation and internal quotation marks 

omitted)). Although we agree with the district court that no reasonable jurist would think that Mills’s motion for Rule 60(b)(6) relief was timely, we rule that no reasonable jurist would question 

the denial on the merits as supported by the record. Cf. Haynes v. 

McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (we may 

affirm on any ground that the record supports when reviewing for 

abuse of discretion).

IV. CONCLUSION

We DENY Mills’s application for a certificate of appealability 

and DENY AS MOOT his motion to stay his execution.

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24-11661 Abudu, J., Concurring 1

ABUDU, Circuit Judge, Concurring:

The death penalty is the harshest punishment one can 

receive in this country. The Supreme Court has recognized that 

“the death penalty is qualitatively and morally different from any 

other penalty.” Sawyer v. Whitley, 505 U.S. 333, 361 (1992) (Stevens, 

J. concurring); see also Gre v. Georgia, 428 U.S. 153, 187 (1976) 

(“There is no question that death as a punishment is unique in its 

severity and irrevocability. When a defendant’s life is at stake, the 

Court has been particularly sensitive to insure [sic] that every safeguard is observed.” (citations omitted)); Woodson v. North Carolina, 

428 U.S. 280, 305 (1976) (noting “the need for reliability in the determination that death is the appropriate punishment in a specific 

case”). As a result, “it is of vital importance to the defendant and 

to the community that any decision to impose the death sentence 

be, and appear to be, the consequence of scrupulously fair procedures.” Sawyer, 505 U.S. at 361 (internal quotation marks and 

brackets omitted). 

I concur in the denial of Mills’ motion for a certificate 

of appealability (“COA”). I write separately to express concern 

about the rigid interpretation and application of Rule 60(b)(6), particularly the “extraordinary circumstances” provision in a death 

penalty case when the petitioner is asserting actual innocence. 

I. THE COA STANDARD

We may only grant a petitioner a COA if he “has 

made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). Importantly, “[a]t the COA stage, the only 

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question is whether the applicant has shown 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.’” Buck v. 

Davis, 580 U.S. 100, 115 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 

322, 337 (2003)). This question must be decided without a full consideration of the factual or legal basis underlying the petitioner’s 

claims. Id. To conduct such merits analysis at the COA stage “is in 

essence deciding an appeal without jurisdiction.” Miller-El, 537 U.S. 

at 337.

Accordingly, at the COA stage, a petitioner does not 

have to show that his appeal will be successful once it is heard on 

the merits. Id. We cannot “decline the application for a COA 

merely because [we] believe[] the applicant will not demonstrate 

an entitlement to relief.” Id. Instead, we must issue a COA where 

reasonable jurists could debate the issue presented, and “a claim 

can be debatable even though every jurist of reason might agree, 

after the COA has been granted and the case has received full consideration, that [the] petitioner will not prevail.” Id. at 338. At 

minimum, the petitioner seeking a COA must prove “something 

more than the absence of frivolity” or “good faith” on his part. Id.

(internal quotation marks omitted).

II. RULE 60(b)(6) MOTIONS

We review for an abuse of discretion the district court’s denial of a Rule 60(b)(6) motion. Buck, 580 U.S. at 122-23. Rule 60 

provides a list of specific grounds on which a movant may seek 

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24-11661 Abudu, J., Concurring 3

relief from a death sentence, including for “any other reason that 

justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6). Relief under Rule 

60(b)(6) is available only in “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The case law supports a rejection of Mills’ request for relief under Rule 60(b)(6) as duplicative 

of the arguments he raised under Rule 60(b)(2), (b)(3), and (d)(3), 

see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 

(1988). However, the Supreme Court also has recognized that Rule 

60(b)(6) “does not particularize the factors that justify relief.” 

Liljeberg, 486 U.S. at 863-64. Moreover, the Court has emphasized 

that Rule 60(b)(6) relief is warranted “to vacate judgments whenever

such action is appropriate to accomplish justice.” Id. at 864 (emphasis added) (instructing courts to “consider the risk of injustice” 

and “the risk of undermining the public’s confidence in the judicial 

process”); see also Cano v. Baker, 435 F.3d 1337, 1341-42 (11th Cir. 

2006) (analyzing a party’s Rule 60(b)(6) motion in conjunction with 

related Rule 60(b)(5) arguments).

III. RELEVANT TENANTS OF FUNDAMENTAL 

FAIRNESS AT TRIAL

Prosecutors play a special role “in the search for truth 

in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281 (1999). As a 

result, the court, defendants, and juries expect prosecutors to refrain from using improper methods to secure a conviction. Banks 

v. Dretke, 540 U.S. 668, 696 (2004).

The Supreme Court has issued many rulings outlining a prosecutor’s duties to the court, litigants, and juries. Most 

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relevant here, prosecutors cannot suppress “evidence favorable to 

an accused . . . where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The essential 

elements of a Brady claim include: (1) the evidence at issue must be 

favorable to the petitioner because it was either exculpatory or impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently; and (3) the petitioner suffered prejudice. 

Banks, 540 U.S. at 691 (citing Strickler, 527 U.S. at 281-82). Thus, 

“prosecutor[s] may [not] hide,” nor must a petitioner “seek” out, 

the existence of Brady materials. Id. at 696 (internal quotation 

marks omitted).

Additionally, prosecutors have an obligation to correct false testimony once it is stated in court. Napue v. Illinois, 360 

U.S. 264, 269 (1959). In fact, “[t]he principle that a State may not 

knowingly use false evidence, including false testimony, to obtain a 

tainted conviction, implicit in any concept of ordered liberty, does 

not cease to apply merely because the false testimony goes only to the credibility of the witness.” Id. (emphasis added). As the Supreme Court 

recognized, “[t]he jury’s estimate of the truthfulness and reliability 

of a given witness may well be determinative of guilt or innocence, 

and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Id.

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24-11661 Abudu, J., Concurring 5 

IV. MILLS HAS MET THE THRESHOLD 

REQUIREMENT TO OBTAIN A COA

In applying the above legal framework, Mills has met 

the threshold requirement to obtain a COA on the issues of: 

(1) whether the district court abused its discretion in denying his 

Rule 60(b)(6) motion as untimely; and (2) whether reasonable jurists could debate the district court’s determination that Mills did 

not establish “extraordinary circumstances” entitling him to relief. 

Buck, 580 U.S. at 116 (“That a prisoner has failed to make the ultimate showing that his claim is meritorious does not logically mean 

he failed to make a preliminary showing that his claim was debatable.”).

At the very moment JoAnn (Mills’ ex-wife and the star witness of the State’s case against him) testified at his trial, Mills has 

asserted that JoAnn was offered a favorable plea deal in exchange 

for her testimony against him. In fact, Mills has raised this issue no 

less than 15 times before varying trial, state, and post-conviction 

courts—each time to no avail. In these instances, the courts denied 

his claim in reliance on the State’s affirmation, made in open court, 

that it did not offer JoAnn a “promise . . . maybe . . . nudge . . . [or] 

wink” that she would receive a favorable plea should she testify 

against Mills. The district court, when it denied Mills’ initial 28 

U.S.C. § 2254 petition, also relied on the State’s averments. This 

Court then denied Mills a COA to appeal the § 2254 petition’s denial, meaning this Court has yet to hear Mills’ case on the merits.

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Now, Mills has obtained an affidavit from JoAnn’s trial 

attorney, Tony Glenn, and additional information that JoAnn met 

with state officials before she testified in court against Mills and that 

a plea deal was discussed. Specifically, Glenn affirmed that he engaged in pre-trial discussions with the district attorney and the victims’ daughter regarding JoAnn avoiding the death penalty if she 

“testified truthfully” at Mills’ trial. According to Glenn, before 

Mills’ trial, the victims’ daughter agreed not to oppose the State 

offering JoAnn a plea deal, and the district attorney agreed to not 

pursue the death penalty against JoAnn—so long as she “testified 

truthfully” at Mills’ trial.

In response, the State submitted two affidavits—one 

from the district attorney who prosecuted the case and another 

from the former investigator on the case. The district attorney admitted that JoAnn and her attorney visited his investigator before 

Mills’ trial but denied that the investigator offered her a plea deal 

or had the authorization to do so. The district attorney also affirmed that he did not offer JoAnn a plea deal because the victims’ 

family wanted to pursue the death penalty, and it was not until after 

JoAnn testified that the family became comfortable with the state 

offering JoAnn life imprisonment. The former investigator explained that he encouraged JoAnn to testify and that he did not offer her a plea deal either. 

As the record shows, JoAnn did in fact testify at Mills’ 

trial, placing all the blame on Mills for the victims’ deaths, while 

her attorney sat in the courtroom observing the testimony. At trial, 

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she stated she was not offered any promises or deals in exchange 

for her testimony. The State asserted the same when asked by 

Mills’ counsel. Nevertheless, ten days after Mills was found guilty, 

the state dismissed the capital murder charges against JoAnn.

Mills’ theory of defense primarily rested on the following facts. First, that although JoAnn pointed the finger at Mills 

during trial, she initially gave two statements to police implicating 

Benji Howe—a local drug dealer—as the perpetrator of these horrendous crimes. Additionally, record evidence showed that Mills’ 

DNA was not found on the murder weapons, Howe had equal access and opportunity to place the victims’ belongings in the trunk 

of Mills’ car, and Howe was found with the victims’ prescription

pills in his possession along with a large amount of money. Moreover, Howe’s alibi for the date of the incident proved shaky at best, 

with conflicting witness statements given regarding Howe’s whereabouts on the day of the murders. 

In denying Mills’ claim, the district court found it impossible to believe that the district attorney and JoAnn would have 

perjured themselves when questioned about whether a plea deal 

existed to decrease JoAnn’s sentence in exchange for her testimony 

identifying Mills as the killer, and that JoAnn’s defense attorney 

would not have objected or otherwise informed the court of the 

malfeasance. Yet, Mills produced Glenn’s affidavit attesting under 

oath that such a plea deal in advance of her testimony indeed did 

exist, and he provided the general date and participants of the alleged plea deal meetings. 

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The questions that the varying accounts between the 

district attorney, JoAnn, and Glenn’s version of events present, including why JoAnn’s attorney would sign an affidavit against his client’s interests that could jeopardize his own legal career, are issues 

the Court need not address at this COA stage. Those factual issues 

should be resolved by the district court after an evidentiary hearing. 

Instead, at this phase in Mills’ death penalty case, we look to the 

record evidence only to determine whether a reasonable jurist 

could debate whether the district court abused its discretion in 

denying Mills’ Rule 60(b)(6) motion on the grounds that “extraordinary circumstances” did not warrant relief. Mills has sufficiently 

alleged the denial of a constitutional right—the right to have impeachment evidence disclosed to him and the right to ensure his 

trial is not infected with perjured testimony. Brady, 373 U.S. at 87; 

Napue, 360 U.S. at 269. Mills also has demonstrated that, without 

relief, there exists a “risk of injustice” and “risk of undermining the 

public’s confidence in the judicial process.” Buck, 580 U.S. at 123. 

This is especially true given that Mills has maintained his innocence. 

Unfortunately, even when a petitioner’s life hangs in 

the balance, our case law does not extend sufficient procedural and 

substantive due process protections. 

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