1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4381

No. 07-2015

___________

Bruce Earl Ward, *

*

Appellant, *

* Appeals from the United States 

v. * District Court for the

* Eastern District of Arkansas.

Larry Norris, Director, Arkansas *

Department of Correction, *

*

Appellee. *

___________

Submitted: September 24, 2008

Filed: August 24, 2009

___________

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Bruce Earl Ward was convicted of capital murder and sentenced to death. After

exhausting his state court remedies, Ward petitioned for a writ of habeas corpus under

28 U.S.C. § 2254, arguing, among other things, that he was denied his Sixth

Amendment right to effective assistance of counsel at the guilt phase of his trial. The

district court1

 denied his petition and granted a certificate of appealability to this court
-2-

to determine whether counsel was ineffective for failing to seek the recusal of the state

court trial judge. While that appeal was pending, Ward’s counsel moved for relief

from the district court’s judgment on the basis that Ward lacked capacity to proceed

on his petition for writ of habeas corpus. The district court determined that the motion

was a second or successive habeas petition under 28 U.S.C. § 2244 and concluded that

it lacked jurisdiction to consider the motion. Ward’s later motion to alter or amend

judgment was also denied. The district court then certified the following issue for

review: whether the district court erred in ruling that Ward’s motion for relief from

judgment and motion to alter or amend the judgment were second or successive

petitions pursuant to 28 U.S.C. § 2244. The appeals have been consolidated, and we

affirm.

I.

On August 11, 1989, Ward murdered Rebecca Doss at the Jackpot Gas Station

in Little Rock, Arkansas. Before trial, Ward was evaluated at the state hospital and

diagnosed with antisocial personality disorder. The supervising forensic psychologist

concluded that Ward was aware of the charges against him and that he was capable

of cooperating effectively with an attorney in preparation of his defense. Ward’s

social history was not fully developed because Ward asked the state hospital to not

contact his family. On January 18, 1990, the trial court held a competency hearing,

at which the state doctors who had evaluated Ward testified. Both doctors opined that

Ward was competent and able to stand trial. The trial court agreed and denied Ward’s

counsel’s request for funding to pay for an independent evaluation. 

Throughout the trial, the judge denied defense counsel’s requests to make

sidebar objections, but allowed the prosecution to do so. A jury convicted Ward of

capital murder and found that he should be sentenced to death by lethal injection.

Ward was sentenced to death on October 18, 1990, and he appealed his conviction and

his sentence. A divided Arkansas Supreme Court narrowly affirmed his conviction,
2

This is not the first time Ward refused to cooperate in a mental health

evaluation. The court ordered an evaluation on March 6, 1996, and it appears that

Ward met with the state doctors in September 1996. According to the October 6,

1997, hearing transcript, Ward refused to submit to that exam.

-3-

but reversed the death sentence and remanded the case for a second sentencing trial.

Ward v. Arkansas, 827 S.W.2d 110 (Ark. 1992); Ward v. Arkansas, 831 S.W.2d 100

(Ark. 1992) (dissent). Following that trial, Ward was again sentenced to death.

Because the court reporter failed to accurately record the proceedings and failed to

record a number of bench conferences, however, the record on appeal could not be

settled. Ward v. Arkansas, 906 S.W.2d 685 (Ark. 1995) (per curiam). Accordingly,

the case was remanded for a third sentencing trial. 

Before the final sentencing trial, defense counsel moved to stay the proceedings

and requested an inpatient mental health evaluation because Ward’s mental condition

“ha[d] deteriorated to the point that he can not or will not cooperate with present

counsel.” The motion listed several demands that Ward had made on the court,

including a “full blanket presidential pardon” and an absolute expungement, a new

Social Security number that could not be traced to his original number, a vehicle of

his choosing, a valid driver’s license, and $1 million for every year he had been

incarcerated. The court granted the motion for a mental health evaluation, even

though Ward claimed sanity throughout the pretrial hearing and stated that “I will not

say a word, I will not comply.” During the hearing, Ward repeatedly stated that he did

not want a life sentence. Rather, if the charges against him were not dropped, he

wanted to be executed.

On October 17, 1997, Ward was sent to the Arkansas State Hospital to be

evaluated by a forensic evaluation team. According to the letter from the supervising

forensic psychologist and the medical director, Ward told the team that he was

competent, that he would not submit to the evaluation, and that he tried to remove his

attorney’s request for an evaluation.2

 Ward’s evaluation was terminated, and the letter
3

Axis I disorders are clinical disorders including schizophrenia and other

psychotic disorders. 

-4-

concluded that although Ward refused to cooperate with his evaluation, there was no

indication that the uncooperativeness was due to any Axis I mental disorder.3

 This

observation was based on the team’s brief interaction with Ward. No documents were

mentioned in the letter, and the evaluation team did not render an opinion based on the

record. Defense counsel submitted the letter to the court immediately before trial and

did not raise any further motions or objections regarding Ward’s competency to stand

trial. Following the third trial, a jury recommended the death sentence. Ward was

sentenced to death on October 28, 1997, and the Arkansas Supreme Court affirmed.

Ward v. Arkansas, 1 S.W.3d 1 (Ark. 1999).

Ward sought post-conviction relief under Rule 37.1 of the Arkansas Rules of

Criminal Procedure, alleging a number of errors, including ineffective assistance of

counsel for failing to seek the recusal of the judge who presided over the guilt phase

of Ward’s trial. Ward argued that the judge demonstrated partiality to the prosecution

and was biased because he did not allow defense counsel to approach the bench to

make objections, but did allow the state’s attorney to approach. Specifically, Ward

alleged:

Trial counsel was ineffective by not seeking recusal of the trial judge or

a mistrial when the trial judge demonstrated partiality to the prosecution.

During the course of the trial the trial judge permitted the prosecution to

have side bar conferences but refused to allow the defense to have side

bar conferences thereby intentionally or unintentionally communicating

judicial bias in the presence of the jury.

Ward’s post-conviction hearing was held on June 30, 2000. Against his

counsel’s advice, Ward waived his right to be present at the hearing. The only witness

called was Tom Devine, Ward’s counsel for the guilt phase of the trial. With respect

to failing to seek the recusal of the trial judge, Devine testified that the trial judge was
4

Ward also alleged two other points of error. Because these arguments were not

certified for appeal, we need not discuss them.

-5-

not defense oriented and did not appreciate the importance of preserving the record

for appeal. Devine did not, however, seek recusal or a mistrial on the basis of the trial

judge’s bias. Ward’s counsel’s questions and Devine’s testimony focused on an

incident in which Devine’s attempt to approach the bench to object to the introduction

of certain evidence was denied. Devine testified that throughout the trial he was not

permitted to approach the bench, whereas the prosecutor was allowed to approach.

According to Devine, the trial judge reasoned that the state could not create a mistrial

by approaching, but that the defense could, an analysis that Devine disagreed with.

Devine further testified that he briefed this issue on direct appeal, noting that three

members of the Arkansas Supreme Court had dissented from the affirmance of the

conviction. 

The post-conviction court denied Ward’s petition. On appeal to the state

supreme court, Ward renewed his argument that his trial counsel was ineffective for

failing to seek the recusal of the trial judge. The court held that the issue was not

properly before it, noting that Ward did not argue that the failure to seek recusal

prejudiced him, but instead asked the court to reconsider the issue in light of the

dissenting opinion in Ward’s direct appeal. Ward v. Arkansas, 84 S.W.3d 863, 866

(Ark. 2002). Because Ward did not present a convincing argument and did not cite

any convincing legal authority, the court declined to reconsider the argument. Id. The

Arkansas Supreme Court concluded that even if the issue were properly before it, the

argument would still fail in light of its determination on direct appeal that no prejudice

resulted from the trial court’s actions. Id. 

On May 27, 2003, Ward filed his petition for writ of habeas corpus in the

United States District Court for the Eastern District of Arkansas, alleging that trial

counsel was ineffective for failing to seek the trial judge’s recusal.4

 Ward’s petition
5

Shortly after filing the habeas petition, Ward’s counsel moved to withdraw and

a different attorney was appointed to handle Ward’s case. On July 19, 2004, that

attorney withdrew from the case and Ward’s previous counsel was substituted and

appointed as Ward’s habeas counsel. 

-6-

was filed by his state habeas counsel, acting pro bono after he discovered that Ward

did not have federal habeas counsel and that the one-year statute of limitations was

about to expire. The petition was described as a “placeholder” in motions made to the

district court and to this court, but no amended petition was ever filed.5

On September 14, 2004, Ward’s counsel moved for funds for investigation and

mitigation assistance, stating that he had serious questions regarding Ward’s mental

health and that “[i]t may well be that Ward is actively psychotic.” The motion was

granted, and counsel hired an investigator/mitigation specialist. Ward, however,

refused to cooperate with the investigation. In a letter to counsel, Ward stated that

“there will be no life sentence, no plea bargains—I have proof they framed me and the

charges will be dropped.” Ward went on to write:

I’ve never killed anyone in my life and after a quarter of a century of

having bogus murder charges encroached upon me, I’m not going to

tolerate it anymore. That’s why I’m rejecting [the investigator], and why

I won’t let you have any control whatsoever in my case. It was my

understanding that we were going to have a number of discussions first

so that we wouldn’t have any visionary conflicts. I’m not sitting-backstupid anymore. My life, my way. You will take part in the preparatory

phase but another lawyer will file stuff. 

Just take my calls for now and remember what you’ve promised so far.

I’ve been planning this for 16 years. 

Ward’s counsel warned Ward that if he did not cooperate, counsel could withdraw and

hand Ward’s case over to the Federal Public Defender. In a letter, Ward’s counsel
-7-

explained that if the public defender’s office took over the case, mitigation work

would then be done:

They will form the opinion that (1) you likely suffer from some sort of

mental defect; that (2) because of this “defect,” you cannot make a

knowing, voluntary, or intelligent decision about whether mitigation

should be investigated and presented; and that (3) because of all this,

they have an obligation to “step in.” 

It appears that Ward also refused to sign release forms required to continue the

investigation. The record does not contain any further information regarding the

investigation, and no mitigation evidence was presented to the district court. Counsel

did not seek a stay, and there was no docketed activity in Ward’s case from the time

the district court granted the motion for investigative funds on September 28, 2004,

until the order denying Ward’s petition for writ of habeas corpus on November 7,

2005.

In its order denying habeas relief, the district court held that Ward failed to

meet his burden under 28 U.S.C. § 2254 because he relied heavily on the dissenting

opinion on direct appeal and failed to “develop any meaningful argument” or “provide

any substantive claim to support his assertion that prejudice occurred.” As he did in

his state court petition, Ward argued that he was entitled to a new trial because the

trial judge was biased, as evidenced by the judge’s refusal to allow defense counsel

to make sidebar objections. The district court dismissed the claim, concluding that

although the record contained examples of the trial judge’s sarcasm and dislike for

counsel, the judge’s actions did not give rise to an unfair trial. Moreover, as the

district court noted, Ward’s trial counsel made the tactical decision not to seek the trial

judge’s recusal. 

Ward applied for a certificate of appealability, which the district court granted

with respect to Ward’s claim of ineffective assistance of counsel. After timely filing
6

Throughout the remainder of the opinion, we will refer to Ward’s federal

habeas counsel as previous counsel. When necessary, we will refer to Ward’s counsel

of record on or after January 30, 2006, as present counsel.

7

Ward filed the motion under seal, but he later moved to unseal the motion and

related filings. The district court granted that motion.

8

Ward’s present counsel hired a forensic psychiatrist to review materials

relating to Ward, including present counsel’s summaries of meetings and

conversations with Ward, portions of the trial transcript, affidavits from Ward’s trial

counsel, an affidavit from a prison volunteer who has befriended Ward. The

psychiatrist opined that Ward suffers from either paranoid schizophrenia or delusional

-8-

Ward’s notice of appeal with this court, Ward’s post-conviction counsel moved to

withdraw. On January 30, 2006, we granted the motions to withdraw, appointed

present counsel, and issued a briefing schedule.6

 On Ward’s motion, we later stayed

the briefing schedule and held the appeal in abeyance pending the district court’s

ruling on Ward’s motion for relief from judgment under Federal Rule of Civil

Procedure 60(b) and motion to alter or amend judgment under Federal Rule of Civil

Procedure 59.

On August 15, 2006, Ward’s newly appointed counsel moved for relief from

judgment under Rule 60(b), arguing that Ward was incompetent to proceed before the

district court on his petition for writ of habeas corpus.7

 In the brief, Ward’s counsel

represented that Ward “vehemently oppose[d] and ha[d] actively undermined any

inquiry into his mental health and competence,” but that counsel believed Ward to be

incompetent and thus acted in Ward’s best legal interest by filing the motion. Ward’s

counsel argued that relief from judgment was appropriate because Ward’s

incompetence rendered him unable to effectively communicate with his previous

habeas counsel and thus unable to alert the district court of his inability to proceed.

Moreover, despite previous counsel’s diligence, Ward’s incompetence was newly

discovered evidence because the incompetence existed before the entry of judgment,

but a medical diagnosis of it did not.8

 The brief also argued that the judgment was no
disorder.

-9-

longer equitable and that the exceptional circumstances of this case called for relief

from judgment under Rule 60(b). The motion asked the court to vacate its order

denying relief and to stay the proceedings until Ward’s competence could be restored.

The state argued that the motion was a second or successive habeas petition

under 28 U.S.C. § 2244, and, as such, the district court lacked jurisdiction to consider

it. The district court agreed and denied the motion. The district court concluded that

because the motion was premised on Ward’s competency at all stages of litigation, the

claims could have been brought at some point prior to a Rule 60(b) motion. The

district court determined that, even if properly before it, Ward’s claim was without

merit because it was premised on post-trial ineffective assistance of counsel. The

district court also denied Ward’s subsequent Rule 59 motion to alter or amend

judgment. On August 7, 2007, the district court certified the following issue for

appeal: whether the district court was correct in its ruling that Ward’s Rule 60(b) and

Rule 59 motions were second or successive petitions pursuant to 28 U.S.C. § 2244.

 

II.

Through his counsel, Ward argues that the district court erred in construing his

post-trial motions as second or successive habeas petitions because his motions did

not present any “claims” as defined in Gonzalez v. Crosby, 545 U.S. 524 (2005).

Instead, his incompetence is a procedural defect in the integrity of the habeas

proceedings and thus is an appropriate basis for Rule 60(b) and Rule 59 motions.

Ward’s counsel argues that Ward’s previous habeas counsel acted reasonably and

diligently to pursue the issue of Ward’s competence, but that Ward’s psychosis

thwarted those efforts. 
-10-

The district court’s determination that Ward’s Rule 60(b) and Rule 59 motions

constituted second or successive habeas petitions is a conclusion of law that we review

de novo. Williams v. Norris, 461 F.3d 999, 1001 (8th Cir. 2006). We conclude that

Ward’s motions, in substance, comprise a claim of ineffective or incompetent

representation by federal habeas counsel. Although an assertion of ineffective

assistance of habeas counsel may be characterized as a defect in the integrity of the

habeas proceeding, it ultimately seeks to assert or reassert substantive claims with the

assistance of new counsel. See Gonzalez, 545 U.S. at 532 n.5. Moreover, the

Antiterrorism and Effective Death Penalty Act (AEDPA) specifically prohibits such

grounds for relief. 

Federal Rule of Civil Procedure 60(b) allows a habeas petitioner to seek relief

from final judgment and to request the reopening of his case in certain circumstances.

Rule 60(b) applies to habeas proceedings to the extent it is not inconsistent with

AEDPA. Gonzalez, 545 U.S. at 529; see also 28 U.S.C. § 2254; Fed. R. Civ. P.

81(a)(4). AEDPA imposes three requirements on second or successive habeas

petitions: 

First, any claim that has already been adjudicated in a previous petition

must be dismissed. § 2244(b)(1). Second, any claim that has not already

been adjudicated must be dismissed unless it relies on either a new and

retroactive rule of constitutional law or new facts showing a high

probability of actual innocence. § 2244(b)(2). Third, before the district

court may accept a successive petition for filing, the court of appeals

must determine that it presents a claim not previously raised that is

sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence

provisions. § 2244(b)(3).

Gonzalez, 545 U.S. at 529-30. Rule 60(b) creates an exception to the finality of a

district court’s judgment in a habeas proceeding, so that “[i]f neither the motion itself

nor the federal judgment from which it seeks relief substantively addresses federal

grounds for setting aside the movant’s state conviction, allowing the motion to
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proceed as denominated creates no inconsistency with the habeas statute or rules.” Id.

at 533. 

A Rule 60(b) motion is a second or successive habeas corpus application if it

contains a claim. For the purpose of determining whether the motion is a habeas

corpus application, claim is defined as an “asserted federal basis for relief from a state

court’s judgment of conviction” or as an attack on the “federal court’s previous

resolution of the claim on the merits.” Gonzalez, 545 U.S. at 530, 532. “On the

merits” refers “to 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).” Id. at 532 n.4.

When a Rule 60(b) motion presents a claim, it must be treated as a second or

successive habeas petition under AEDPA. 

No claim is presented if the motion attacks “some defect in the integrity of the

federal habeas proceedings.” Id. at 532. Likewise, a motion does not attack a federal

court’s determination on the merits if it “merely asserts 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.” Id. at n.4. This

reasoning is illustrated in Gonzalez, in which the petitioner moved for relief from

judgment challenging the district court’s determination that his habeas petition was

time barred under AEDPA. Because the motion challenged only the statute of

limitations that applied to the habeas proceeding and did not assert a claim, the

Supreme Court held that it was not a second or successive habeas petition. Id. at 535-

36. 

The Supreme Court has “note[d] that 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, but in effect asks for a second chance to have the merits determined

favorably.” Id. at 532 n.5 (internal citation omitted). This is consistent with

AEDPA’s provision that states that “[t]he ineffectiveness or incompetence of counsel
9

Ward would not meet with previous counsel, but apparently communicated

with him by letter and by phone.

-12-

during Federal or State collateral post-conviction proceedings shall not be a ground

for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). The

statute’s prohibition is broad, “[a]nd it bars ‘relief,’ not simply particular kinds of

relief, such as a writ of habeas corpus.” Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir.

2005) (holding that petitioner’s motion for relief from judgment based on postconviction counsel’s failure to pursue discovery was not permitted under AEDPA

because the motion was grounded in a claim for incompetent and ineffective

representation during the federal post-conviction collateral review). 

Ward’s counsel carefully argues that previous counsel could not have

discovered Ward’s incompetence and that previous counsel acted diligently and

reasonably. This argument is designed to circumvent the Supreme Court’s statement

that omissions of habeas counsel are not procedural defects, as well as AEDPA’s bar

on claims of incompetent or ineffective representation in federal habeas proceedings.

The problem, however, is that most of the factual support for Ward’s alleged

incompetency was available to previous counsel.9

 In fact, Ward’s previous counsel

questioned Ward’s mental health and determined that Ward may have been “actively

psychotic,” but did not seek a stay of habeas proceedings. For these reasons, and

those enumerated below, we conclude that the substance of Ward’s motion is a claim

for ineffective assistance of federal habeas counsel, and thus was correctly dismissed

by the district court.

 

In the 2004 motion for funds for investigation and mitigation assistance, Ward’s

previous counsel stated that based on his conversations with Ward, “it was obvious,

even from a layperson’s perspective, that Mr. Ward was delusional. His paranoia is

severe to the point that counsel has difficulty engaging in meaningful dialogue with

him about his case.” The court granted the motion, but the investigator/mitigation
-13-

specialist could not complete his investigation because Ward refused to cooperate and

refused to sign a release. Several letters were exchanged between Ward and previous

counsel, including the above-described letter in which previous counsel threatened to

withdraw from the case and turn it over to the federal public defenders, who would

explore the matter of Ward’s mental health and conduct a mitigation investigation.

Ward’s previous counsel believed that Ward might have been incompetent, yet

counsel did not seek a stay of proceedings or otherwise notify the district court that

Ward was incapable of assisting in the preparation of his habeas petition. 

Additionally, the record is replete with examples of Ward’s competency being

called into question. In 1990, Ward was evaluated at the state hospital, and a

competency hearing was held. In 1997, counsel moved to stay proceedings because

Ward’s “mental condition has deteriorated to the point where he can not or will not

proceed with present counsel.” In 1996 and 1997, Ward was again sent to the state

hospital for evaluation, but refused to cooperate. In 2004, previous counsel moved

for funds for mitigation and investigation assistance based on Ward’s mental health.

In 2004 and 2005, Ward refused to cooperate in the mitigation investigation. Ward’s

previous counsel had access to this information, yet did not alert the district court that

he was unable to prepare and present Ward’s habeas arguments. Cf. Garcia v.

Quarterman, No. 08-70003, 2009 WL 1800141 at *4 (5th Cir. June 24, 2009) (holding

that the prisoner’s petition was not successive because purported defect did not arise,

or the claim did not ripen, until after the conclusion of the previous petition).

The record also indicates that Ward’s previous counsel may have failed him in

other ways. Although previous counsel stated that the habeas petition was supposed

to serve as a “placeholder,” it was never amended. Nothing was filed in the district

court in the thirteen months from the time it granted the motion for funds until it

denied Ward’s petition. Ward’s trial counsel was familiar with Ward’s previous

habeas counsel and expressed concerns with the adequacy and competence of his
-14-

representation. In some letters, Ward demanded that his previous counsel take his

calls. As the district court noted in its order denying Ward’s Rule 59 motion:

[I]n his motion for funding for a mitigation expert, Ward notified the

Court that he intended to bring claims regarding his alleged diminished

mental condition. The Court granted authorization and funding to pursue

the mitigation claims on September 28, 2004. Yet, Ward did not present

any results or evidence to the Court in an amended petition. The

opportunity was available to him and he has failed to seize upon it. 

Given the record we have before us, then, we conclude that Ward’s Rule 60(b) and

Rule 59 motions were improper because they were not based on a procedural defect,

but rather attacked previous habeas counsel’s omissions and asked for a second

opportunity to have the merits determined favorably. See Gonzalez, 545 U.S. at 532

n.5. Ward’s Rule 60(b) motion ultimately seeks to advance, through new counsel,

new claims or claims that were previously considered and dismissed on the merits.

See id. Ward’s requested relief is thus barred by AEDPA, and we affirm the district

court’s dismissal of Ward’s Rule 60(b) and Rule 59 motions. 

III.

Turning now to Ward’s appeal from the denial of his habeas claim, the issue

certified is whether Ward’s constitutional right to effective assistance of counsel was

violated when counsel failed to seek the recusal of the trial judge. In summary,

Ward’s argument is that the trial judge was biased, counsel failed to seek the judge’s

recusal, and that failure resulted in the structural error of a biased judge presiding over

the guilt phase of Ward’s trial. Trial before an impartial judge is a basic requirement

of due process, Ward argues, and prejudice should be presumed because he was

deprived of that right. 
-15-

Ward’s arguments to the state and federal district courts were confined to the

trial judge’s refusal to allow his attorneys the same opportunity to approach the bench

that the prosecution was afforded. On appeal, Ward argues several other factual bases

that allegedly demonstrate the trial judge’s bias towards the prosecution. Accordingly,

we must determine whether Ward fairly presented the substance of his claim to the

state courts. Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997). 

A.

The habeas claim need not be an “exact duplicate” of the one raised in the state

court proceedings, Odem v. Hopkins, 192 F.3d 772, 776 (8th Cir. 1999), but the

petition must present the same legal and factual bases to the federal courts that were

presented to the state courts. Anderson, 106 F.3d at 245. “The federal claim cannot

contain significant additional facts such that the claim was not fairly presented to the

state court, but closely related claims containing an arguable factual commonality may

be reviewed.” Id. (quoting Kenley v. Armontrout, 937 F.2d 1298, 1302-03 (8th Cir.

1991) (internal quotations omitted)). 

We agree with the state that Ward is attempting to broaden impermissibly his

ineffective assistance of counsel claim to include factual bases not raised before both

the state courts and the district court. The only factual basis raised in support of

Ward’s claim was that counsel failed to seek the recusal of the trial judge after the

judge displayed his bias by allowing the prosecution to approach the bench for sidebar

conferences, while refusing to allow the defense to do the same. This fact supported

Ward’s claim in his initial post-conviction petition, and his trial counsel’s testimony

at the post-conviction hearing centered on it. Moreover, Ward asserted the same

factual basis for his argument on appeal to the state supreme court and in his petition

to the district court. In his state appellate brief, Ward alleged:
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[T]rial counsel was ineffective for not seeking recusal of the trial court

when it became apparent that a great risk of perceived favoritism existed

when the trial court prohibited the defense from approaching the bench

while on the same day of trial [it] permitted a sidebar at the request of the

State.

Similarly, in his petition for habeas corpus to the district court, Ward alleged:

In Ward’s initial trial, it became apparent that the trial judge was biased

toward the prosecution. During the trial, the judge permitted counsel for

the State to approach the bench and request a sidebar. On the other hand,

the judge prohibited counsel for Ward from approaching the bench and

insisted that counsel’s objections be made in open court in front of the

jury. Counsel never challenged the judge’s actions or moved for the

judge to recuse on the ground of bias.

Counsel’s failure to object here was objectively unreasonable under

Strickland.

Ward now asserts a number of factual bases that the state and district courts did

not have the opportunity to consider. The district court did not reach the issue of

whether Ward’s federal claim involved arguable factual commonality with the state

court claim, because Ward argued the same points to the state supreme court as it did

to the district court. The district court reviewed the trial transcript and found

examples of the trial judge’s sarcasm and dislike for both the prosecution and the

defense, but it concluded that Ward failed to prove his claim because he relied solely

on the dissenting opinion in Ward’s direct appeal. Ward’s argument to this court

contains significant additional facts that expand the scope of the claim he presented

both to the state courts and the district court. We limit our review to the facts related

to the argument made to the state courts. 
-17-

B.

AEDPA limits the scope of our review in a habeas proceeding. If the issues

raised in the petition were adjudicated on the merits in the state court proceeding, the

petition must be denied, unless the state court disposition “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or “resulted

in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C.§ 2254(d). A state

court’s findings are entitled to a presumption of correctness. Id. § 2254(e)(1). 

Ward argues that the Arkansas Supreme Court’s opinion is contrary to and an

unreasonable application of clearly established federal law because it failed to

recognize the inherent prejudice Ward suffered when his counsel failed to seek the

recusal of the biased trial judge. The Sixth Amendment guarantees the criminal

defendant the right to effective assistance of counsel. To state a claim for ineffective

assistance of counsel, a habeas petitioner must demonstrate that counsel’s

representation was deficient and that the he suffered prejudice as a result. Strickland

v. Washington, 466 U.S. 668, 687 (1984). The “benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Id. at 686. To show prejudice, the petitioner must

demonstrate that there is a reasonable probability that the outcome would have been

different but for counsel’s deficient performance. Paul v. United States, 534 F.3d 832,

836-37 (8th Cir. 2008). 

Ward does not contend that he can show prejudice under Strickland v.

Washington. Rather, he argues that his case falls into the narrow exception to the

general rule of Strickland that a defendant must prove prejudice. The Supreme Court

has recognized that:
-18-

We have spared the defendant the need of showing probable effect upon

the outcome, and have simply presumed such effect, where assistance of

counsel has been denied entirely or during a critical stage of the

proceeding. When that has occurred, the likelihood that the verdict is

unreliable is so high that a case-by-case inquiry is unnecessary. But only

in “circumstances of that magnitude” do we forgo individual inquiry into

whether counsel’s inadequate performance undermined the reliability of

the verdict. 

Mickens v. Taylor, 535 U.S. 162, 166 (1984) (internal citations omitted); see also

White v. Luebbers, 307 F.3d 722, 728-29 (8th Cir. 2002). As an initial matter, Ward

has not shown that his trial counsel was deficient for failing to move for the recusal

of the trial judge. Even assuming that counsel was deficient, the Strickland exception

does not apply here. Ward does not argue that assistance of counsel had been denied

entirely or at a critical stage of the proceeding, and we do not believe that Ward’s case

is analogous to the cases where prejudice has been presumed. Ward has not presented

“circumstances of that magnitude” to justify dispensing with the usual requirement

that prejudice must be shown. 

We have presumed prejudice where counsel’s deficient performance caused a

defendant to be denied his constitutional right to a jury trial. Miller v. Dormire, 310

F.3d 600 (8th Cir. 2002) (finding presumption of prejudice when counsel waived jury

trial without defendant’s consent); McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998)

(finding presumption of prejudice when neither counsel nor the court informed

defendant of his right to jury trial and defendant did not waive that right). In those

cases, we concluded that counsel caused a structural error and thus reversal was

required. We recognized that our holding was narrow and that “it will be a rare event

when the failings of counsel rise to the level of structural error.” McGurk, 163 F.3d

at 475 n.5.
-19-

Ward argues that his case was tried before a biased judge, which is a structural

error, and thus prejudice must be presumed and reversal is required. Every defendant

is entitled to a fair trial in a fair tribunal, and fairness “requires an absence of actual

bias in the trial of cases.” In re Murchinson, 349 U.S. 133, 137 (1955); see also Jones

v. Luebbers, 359 F.3d 1005, 1012-13 (8th Cir. 2004). But Ward’s is not a case where

the judge had a pecuniary interest in the outcome of the case, Tumey v. Ohio, 273

U.S. 510 (1927), or where the judge acted as a one-man grand jury and then presided

over the trial, In re Murchinson, 349 U.S. 133 (1955). Rather, as earlier recounted,

the allegations of bias in this case relate to disparate treatment accorded to defense

counsel’s requests to approach the bench. However ill-founded the trial court’s

reasoning may have been, its rulings on those requests did not reflect actual or

presumed bias rising to the level of a constitutional violation or a structural error. See

Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992) (Unfavorable judicial

ruling is “insufficient to require disqualification absent a showing of pervasive and

personal bias and prejudice.” (internal quotations omitted)); Harris v. Missouri, 960

F.2d 738, 740 (8th Cir. 1992) (“An unfavorable judicial ruling . . . does not raise an

inference of bias or require the trial judge’s recusal.”). Accordingly, even assuming

that counsel was ineffective for failing to move for the trial judge’s recusal, Ward has

not shown a structural error requiring reversal. 

Conclusion

We affirm the district court’s judgment that it lacked jurisdiction to consider

Ward’s Rule 60(b) and Rule 59 motions because the motions were second or

successive habeas petitions under AEDPA. We also affirm the district court’s order

denying Ward’s petition for habeas corpus.
-20-

MELLOY, Circuit Judge, concurring in part and dissenting in part.

Although I agree with several aspects of the majority’s well-written opinion and

concur in part III, I dissent as to part II. I would hold that Ward’s allegations do not

present a “claim” but relate to a “defect in the integrity of the federal habeas

proceedings,” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), and that his allegations

do not, “in substance, comprise a claim of ineffective or incompetent representation

by federal habeas counsel.” Ante at 10. Federal Rule of Civil Procedure 60(b)(6)

permits reopening in extraordinary circumstances, Ackermann v. United States, 340

U.S. 193, 199 (1950), and I would direct the district court to enter a stay and hold an

evidentiary hearing to afford it the opportunity to make a factual finding as to Ward’s

competency. Nothing in AEDPA precludes federal evidentiary hearings on matters

such as this; Ward has presented more than a colorable claim of present incompetence

and of changed circumstances following the state trial court’s 1990 competency

ruling; and ineffective or incompetent federal habeas counsel is not the only possible

explanation for Ward’s failure to seek a stay at an earlier stage of the federal

proceedings.

The U.S. Supreme Court stated in Gonzalez that if Rule 60(b) motions in

§ 2254 cases do not contain “claims,” district courts are to treat such motions as Rule

60(b) motions and not as successive habeas petitions. Gonzalez, 545 U.S. at 533

(“When no ‘claim’ is presented, there is no basis for contending that the Rule 60(b)

motion should be treated like a habeas corpus application.”). “‘[C]laim’ as used in

§ 2244(b) is an asserted federal basis for relief from a state court’s judgment of

conviction.” Id. at 530. The Court noted that “[i]n most cases, determining whether

a Rule 60(b) motion advances one or more ‘claims’ will be relatively simple.” Id. at

532. 

I agree that “[i]n most cases” the application of Gonzalez will be simple. Based

on the facts of Gonzalez and several hypotheticals discussed therein, the Court

explained that, where a non-merits determination prevents a district court from
-21-

reaching the merits of habeas petition, a Rule 60(b) motion seeking to revisit that nonmerits decision is not to be treated as a successive petition. Id. at 533–35. Such were

the facts of Gonzalez, where the petitioner alleged in his Rule 60(b) motion that the

district court had misapplied a federally created statute of limitations. In a footnote,

the Court listed analogous situations, stating that a movant does not present a “claim”

in a Rule 60(b) motion “when he merely asserts 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.” Id. at 532 n.4

(emphasis added). The Court noted this distinction repeatedly in its opinion. See, e.g.,

id. at 534 (“The motion here, like some other Rule 60(b) motions in § 2254 cases,

confines itself not only to the first federal habeas petition, but to a nonmerits aspect

of the first federal habeas proceeding.”); id. at 538 (“A motion that, like petitioner’s,

challenges only the District Court’s failure to reach the merits does not warrant such

treatment, and can therefore be ruled upon by the District Court without

precertification by the Court of Appeals pursuant to § 2244(b)(3).”).

In cases where a district court actually reaches the merits of the claims in a

habeas petitioner’s first petition, it often will be simple to identify impermissible

successive petitions masking as Rule 60(b) motions based upon the relief the movant

requests or the substance of the arguments the movant asserts. Direct challenges to

a district court’s merits ruling will on their faces seek relief from a state court

judgment and should be treated as successive petitions. Id. at 532 (“[A]lleging 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.”). Less direct challenges, like (impermissible) ineffective

assistance claims seeking to assert or reassert challenges to the state court conviction,

often will identify claims or evidence that federal habeas counsel purportedly failed

to assert or assert effectively. Such motions, while attempting to assert attorney error

as a gateway argument, undoubtedly present “claims” that will require the district

court to treat the motions as successive petitions. Id. at 532 n.5 (“[A]n attack based

on the movant’s own conduct, or his habeas counsel’s omissions ordinarily does not
-22-

go to the integrity of the proceedings, but in effect asks for a second chance to have

the merits determined favorably.” (internal citation omitted)).

In a narrow class of cases, however, the question of how to characterize the

Rule 60(b) motion will not be “relatively simple.” Gonzalez, 545 U.S. at 532. Such

cases, like the present case, will involve requests for relief from judgments that have

already addressed the merits of underlying habeas petitions, but the requests for relief

will be based upon something other than the substance of the merits ruling. The

immediate relief a movant seeks in such a motion may be a request for a stay or some

further proceeding in the district court rather than relief from the state court judgment.

As in the present case, the arguments will assert that the district court judgment or

underlying proceedings were somehow invalid or defective, but not due to any alleged

error with the district court’s substantive analysis of the merits of the first habeas

petition.

Determining how to characterize the Rule 60(b) motion in such cases is not

simple because there are two reasonable ways to view such motions. On the one hand,

the arguments in any such case will be merely first steps on a path towards the

“ultimate” or “bottom-line” goal of asserting or reasserting arguments or evidence to

challenge the state convictions. See, e.g., Post v. Bradshaw, 422 F.3d 419, 424–25

(6th Cir. 2005) (“[A]ll that matters is that [the petitioner] is seeking vindication of or

advancing a claim by taking steps that lead inexorably to a merits-based attack on the

prior dismissal of his habeas petition.” (internal quotations and alterations omitted)).

A focus on this “ultimate” or “bottom-line” goal seemingly would result in almost

universal characterization of Rule 60(b) motions as successive petitions. The state

asserts this argument in the present appeal, characterizing Ward’s motion in terms of

what he might “ultimately seek” and asserting categorically that Rule 60(b) motions

must be deemed successive petitions in all cases where a district court has already

ruled on the merits, regardless of the nature of the movant’s arguments.
-23-

On the other hand, it is reasonable to look at the immediate relief a movant

seeks rather than focusing only on the question of whether the movant eventually will

seek to challenge a state court judgment. See, e.g., Rodriguez v. Mitchell, 252 F.3d

191, 198 (2d Cir. 2001) (“[W]hile [the Rule 60(b) motion] is undoubtedly a step on

the road to the ultimate objective of invalidating the judgment of conviction, it does

not seek that relief. It seeks only to vacate the federal court judgment dismissing the

habeas petition.”); see also Mitchell v. Rees, 261 F. App’x 825, 829 (6th Cir. 2008)

(unpublished) (“[T]he focus of the inquiry is not on whether the court reached the

merits of the original petition but on whether the Rule 60(b) motion contains a

claim.”); Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007)

(“Petitioner’s motion does not assert or reassert allegations of error in his state

convictions. Thus, Petitioner’s 60(b) motion is not a second or successive habeas

petition, and the district court has jurisdiction to consider the motion and to decide its

merits.”); Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004) (holding that a

district court may address a Rule 60(b) motion that challenges the proceedings

surrounding an earlier habeas judgment rather than the underlying state conviction

itself). For this narrow class of cases that are not “relatively simple,” then, it is

necessary to determine whether it is proper, under Gonzalez, to look only at the

immediate relief a Rule 60(b) movant seeks or whether it is proper to take an

expanded view of the movant’s goals and look several steps down the road at the

movant’s expected, eventual attempt to assert or reassert a challenge to his state

conviction.

In the present case, the Majority appears to have adopted the state’s preferred

reading of Gonzalez, stating:

“Ward’s . . . motions were improper because they were not based on a

procedural defect, but rather attacked previous habeas counsel’s

omissions and asked for a second opportunity to have the merits

determined favorably. Ward’s . . . motion ultimately seeks to advance,

through new counsel, new claims or claims that were previously

considered and dismissed on the merits.” 
-24-

Ante at 14 (emphasis added). Other circuits have adopted this view. See, e.g., Post,

422 F.3d at 424–25. I would hold that this position goes too far in limiting district

courts from entertaining Rule 60(b) motions. 

The Majority’s argument, if accepted, would establish an analytical framework

inconsistent with Gonzalez by precluding consideration even of Rule 60(b) motions

analogous to one of the examples that the Court cited in Gonzalez. In Gonzalez, the

Court referred to “[f]raud on the federal habeas court” as a qualifying defect and cited

Rodriguez where a district court had ruled on the merits of a habeas petition and

where the Second Circuit subsequently held that the Rule 60(b) motion was not to be

treated as a successive petition. Gonzalez, 545 U.S. at 532 n.5 (citing Rodriguez, 252

F.3d 191). In making its point, the Court quoted Rodriguez, characterizing the fraud

as “related to the integrity of the federal habeas proceeding, not to the integrity of the

state criminal trial.” Id. (alteration omitted). In effect, the fraud on the court

impugned the integrity or validity of the district court’s judgment, opening the door

to Rule 60(b) review, even though the practical effect of such a holding, necessarily,

could lead to the potential assertion or reassertion of substantive arguments at some

later stage. 

In Rodriguez, the Second Circuit had described the tension between the abovedescribed viewpoints that would consider a movant’s immediate claim for relief, on

the one hand, and the “ultimate” objective of all habeas petitioners, on the other. The

court stated:

The fact that the Rule 60(b) motion contemplates ultimately the vacating

of the conviction is shared with every motion the petitioner might make

in the course of pursuing his habeas—motions to compel disclosure or

quash the respondent’s discovery demands, motions for extension of

time to answer the adversary’s motion, motions to be provided with legal

assistance, motions for summary rejection of the respondent’s

contentions. All such motions, like the motion under Rule 60(b), seek to

advance the ultimate objective of vacating the criminal conviction. But

each seeks relief that is merely a step along the way. In our view, neither
-25-

these motions, nor the motion under Rule 60(b) that seeks to vacate the

dismissal of the habeas petition, should be deemed a second or

successive petition within the meaning of 28 U.S.C. § 2244(b).

Rodriguez, 252 F.3d at 198–99 (emphasis added). 

By citing Rodriguez and describing fraud on the court as a qualifying “defect,”

the Court in Gonzalez showed that a “defect in the integrity of the federal habeas

proceeding[]” need not be limited solely to cases where alleged errors prevent district

courts from reaching the merits of petitioners’ underlying claims for habeas relief.

Gonzalez, 545 U.S. at 532 & n.5. Rather, the Court recognized the authority of

district courts to entertain Rule 60(b) motions as necessary to police their own

proceedings and ensure the integrity and validity of their own rulings. The expanded

view of relief sought by a movant, i.e., the state’s view that it is proper to focus on the

omnipresent goal of all habeas petitioners to, eventually, obtain relief from a state

court judgment through a second merit-based determination in federal court, cannot

be reconciled with the Court’s use of the “fraud-on-the-court” example. In a case like

Rodriguez, the petitioner has already received a ruling on the merits, albeit from a

flawed proceeding, and the “ultimate” effect of the Rule 60(b) motion would be a

return to district court for a second merits ruling. By invoking the fraud example, the

Court necessarily focused the inquiry on the more immediate relief sought rather than

the ultimate or expanded goal of the petitioner/movant. 

In his motion, Ward does not seek to revisit a merits ruling or attack a state

court judgment. Rather, he alleges his incompetence amounts to a defect in the federal

proceedings. The relief he seeks is a stay pending restoration of competence, and

regardless of whether he is actually entitled to this scope of relief, it is not possible to

characterize his motion as containing claims without adopting an expanded view of

his overall goals. I would hold that his motion does not contain a claim.

Although I disagree with the majority as to the necessity of focusing on Ward’s

presumed ultimate goal rather than his immediate claim for relief, I agree that it is
-26-

necessary to consider whether his argument is merely an ineffective assistance of

counsel argument masking as an attack on a defect in the proceedings. It will often

be appropriate to characterize alleged defects as allegations of attorney error or waiver

by the party. I discern no reason for doing so, however, where such characterization

is not compelled by the facts. In the context of Rule 60(b) motions for relief from

federal judgments, we are not directly concerned with issues of federalism, and, as per

Gonzalez, the restrictive aspects of AEDPA review only come into play if we first

conclude the motion contains a claim. Given this context, if the unusual facts of a

case present a scenario in which a district court’s Rule 60(b) review might be

appropriate to prevent an injustice or correct a defective proceeding, it would seem

advisable to leave open the possibility of having the district court address the motion.

Relief in accordance with Rule 60(b) is rare in all contexts. As the Court noted

in Gonzalez, “several characteristics of a Rule 60(b) motion limit the friction between

the Rule and the successive-petition prohibitions of AEDPA, ensuring that . . .

harmonization of the two will not expose federal courts to an avalanche of frivolous

postjudgment motions.” Gonzalez, 545 U.S. at 534–35. As such, I would not

unnecessarily limit Rule 60(b) relief by too readily characterizing a movant’s

arguments as ineffective assistance claims.

Importantly, Gonzalez permits careful scrutiny of petitioners’ motions to assess

whether the arguments are permissible or whether they are, in reality, ineffective

assistance claims. In the same footnote that contained the cite to Rodriguez, the Court

explained that “ordinarily” a Rule 60(b) argument “based on the movant’s own

conduct, or his habeas counsel’s omissions . . . does not go to the integrity of the

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

favorably.” Gonzalez, 545 U.S. at 532 n.5. This general statement follows naturally

from the unobjectional proposition that a party’s actions or the actions of a party’s

attorney, while providing great influence over the direction of proceedings, ordinarily

do not impact the integrity of those proceedings or the validity of judgments rendered
-27-

therein. Such influences, however, are not always benign, and it is not necessarily

appropriate to characterize the actions of an incompetent petitioner as the actions of

a party. See Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 809–15 (9th Cir. 2003)

(noting the inability of incompetent prisoners to communicate with their attorneys,

relay facts known only to themselves, or effectively waive rights); see also Holmes

v. Buss, 506 F.3d 576, 578 (7th Cir. 2007) (characterizing Rohan as resting at least

in part on the fact that “a waiver of a legal right (concretely, the right to seek

postconviction relief) must, to be effective, be knowing, implying mental

competence”). By using the hedging language “ordinarily,” the Court recognized the

possibility that situations could arise where a party’s or counsel’s conduct might not

preclude a district court from entertaining a Rule 60(b) motion. The Court

presumably used this language to avoid creating excessive dicta purporting to

establish a bright-line rule as to possible “defects” that were unrelated to the facts of

Gonzalez. 

Regarding the characterization of Ward’s motion in particular, the present case

is by no means “ordinary,” and I do not read the Court’s footnote as precluding further

district court proceedings. Ward presents compelling evidence showing a deterioration

of his mental condition following the 1990 competency hearing (the only arguably

complete assessment of his competency), culminating in delusional beliefs, a

recalcitrant attitude, and a refusal to cooperate with his attorneys or mental health

professionals. As noted by the majority, Ward’s previous counsel stated to the district

court in a 2004 motion that “it was obvious, even from a layperson’s perspective, that

Mr. Ward was delusional. His paranoia is severe to the point that counsel has

difficulty engaging in meaningful dialogue with him about his case.” The Majority

infers from this disclosure and from other evidence at all stages of state and federal

proceedings that Ward’s counsel was ineffective in not seeking a stay in the district

court and that a grant of a stay or any relief is therefore barred by 28 U.S.C. § 2254(i).

If Ward’s mental state was so obviously reduced, however, and if the district

court had notice of this fact, it is not clear to me that it is wholly appropriate to lay
10In Clayton v. Roper, 515 F.3d 784, 790 n.2 (8th Cir.), cert. denied, 129 S. Ct.

507 (2008), our court noted that we have not yet considered whether a defendants’

competency is required in habeas proceedings. I would hold such a requirement exists

and that the “test should be whether the defendant (petitioner, appellant, etc.) is

competent to play whatever role in relation to his case is necessary to enable it to be

adequately presented.” Holmes, 506 F.3d at 578–79 (discussing Rohan, and

describing a generalized test for competency sufficient to apply in different contexts).

-28-

responsibility for any resulting defect solely at the feet of Ward or his counsel. I

would hold that the district court’s responsibility to maintain the integrity of the

proceedings and validity of its judgments imposes on the district court, in the face of

such facts, a duty to suspend proceedings and ensure competency. See Godinez v.

Moran, 509 U.S. 389, 401 n.13 (1993) (“[A] competency determination is necessary

only when a court has reason to doubt the defendant’s competence.”). The finality of

the death penalty and the importance of airing all evidence and issues completely in

a first habeas petition place a heightened responsibility on district courts in such

circumstances, and I would hold that a petitioner’s competency is required in habeas

proceedings.10 See Rohan, 334 F.3d at 811–13 (explaining a right to competency in

federal habeas proceedings, and noting the prejudice that may ensue from allowing

the critical initial habeas proceeding to pass without meaningful participation by the

prisoner); Mata v. Johnson, 210 F.3d 324, 331 (5th Cir. 2000) (enforcing a federal

habeas competency requirement and remanding for further proceedings where the

evidence demonstrated that a habeas petitioner had a thirty-year history of

documented mental health problems, but the district court had denied habeas relief

without conducting a competency hearing).

Accordingly, I would treat the motion as a Rule 60(b) motion rather than as a

successive petition, and I would remand for further proceedings.

______________________________