## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-40295

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### W INDELL 

### B ROUSSARD



### ,

Petitioner-Appellant,

VERSUS



### G ARY 

### L. J OHNSON



### , D IRECTOR



### , T EXAS 

### D EPARTMENT OF 

### C RIMINAL 

### J USTICE



### ,

I NSTITUTIONAL 

### D IVISION



### ,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

1:98-CV-2053

_________________________ April 27, 2001

Before SMITH, BARKSDALE, and

PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Wind ell Broussard was convicted of

murdering his estranged wife and her son and

was sentenced t o death. He filed a federal

petition for writ of habeas corpus, whereupon the state moved for summary judgment.

Broussard’s lawyers failed to respond to the

motion, and the court granted summary

judgment. The court denied relief from

judgment under F ED

. R. C IV

. P. 60(b).

Broussard seeks a certificate of appealability (“COA”) from that denial, argu i ng that his

attorneys’ negligence prevented him from fully

and fairly litigating his habeas claims and that

the state court erred in not gi ving him more

funds to litigate hi s claims. We deny the

request for COA.

I.

Broussard had two attorneys: Paula Effle, * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circum stances set forth in 5 T H C IR

. R.

47.5.4.2

an experienced capital habeas l itigator, and

Joseph Hawthorne, a capital trial lawyer. Effle, the lead counsel, handled most of the work

in developing the issues and preparing the petition. For health reasons, she left her law

practice shortly after the filing of Broussard’s

habeas petition. Unfortunately, she failed to

notify Hawthorne, who assumed that Effle was

taking care of the case and took no steps to

ensure that she was still performing her duties.

Hawthorne received a copy of the motion for

summary judgment but did nothing.

Broussard contends that this negligence

should not be held against him. Rule 60(b)

provides that

[o]n motion and upo n such terms as are

just, the court may relieve a party or a party’s legal representative from a final

judgment, order or proceeding for the

following reasons: (1) m istake,

inadvertence, surprise, or excusable neglect

. . . [o r] (6) any other reason justifying

relief from the operation of judgment.

F ED

. R. C IV

. P. 60(b)(1), (6). Broussard

suggests that either the attorne ys’ negligence

was excusable or the circumstan ces justify

relief.

A.

The procedural posture of this petition presents an analytical difficulty: Broussard has

requested a COA, yet his rule 60(b) relief is

not susceptible to th at analysis. A rule 60(b)

motion alleging constitutional grounds for setting aside a conviction may be treated as a successive habeas petitio n under 28 U.S.C.

§ 2255. United States v. Rich, 141 F.3d 550,

553 (5th Cir. 1998). A federal court,

however, may entertain a habeas petition only

on the ground that the prisoner’s confinement

violates the laws, trea t ies, or Constitution of the United States. 28 U.S.C. § 2254(a).

Broussard’s mot io n for relief from final

ju dgment under rule 60(b) makes no such

claim; he argues only that he “was denied any

opportuni ty for a full and fair treatment of his

claims,” but he states that “[t]his is not a constitutional claim per se.” Even if Broussard

possibly could have raised a due process claim

under the Fourteenth Amendment, his disavowal of the constitutional nature of his claim

precludes such

a construction; he never even

uses the term “due process.” Thus, because he

alleges no constitutional violation, this claim is

no basis for habeas relief, so we deny COA on

this issue.

B.

We also may analyze Broussard’s claim for

ru le 60(b) relief as an ordinary request for

relief from judgment. Rule 60(b) may apply in

habeas proceedings, Gray v. Estelle, 574 F.2d

209, 214 (5th Cir. 1978), witho ut bei ng

s ubject to the successive petition restriction s

of th e AEDPA, s ee Randall S. Jeffrey,

Successive Habeas Corpus Petitions and Section 2255 Motions after the Antiterrorism and

Effective Death Penalty Act of 1996:

Emerging Procedural and Substantive Issues,

84 M ARQ

. L. R EV . 43, 66 (2000).

We review a rule 60(b) motion for abuse of

discretion. H

al icki v. La. Casino Cruises,

Inc., 151 F.3d 465, 470 (5th Cir. 19 98). To

prevail , Broussard must show either that the

attorney’s failure to respond to the motion for

summary judgment was excusable neglect under rule 60(b)(1) or an extraord inary

cir cumstance justifying relief under rule

60(b)(6). S ee id. ; Ackermann v. United States,

340 U.S. 193, 202 (1950). The provisions are

mutually exclusive: If a part y is partly to

blame for the delay, and the motion is brought,3

as here, within one year, rule 60(b)(1) is used;

if a party is prevented from complying with a

deadline by an ac t of God or other

circumstances beyond his c ontrol , we appl y

r ule 60(b)(6). P ioneer Inv. Serv. Co. v.

Brunsw ick Assoc. Ltd. Partnership, 507 U.S.

380, 393-94 (1993). Because Broussard’s

attorney s should have employed gre ater

safeguards to ensure that action was taken, we

use the “excusable neglect” analysis under rule

60(b)(1). 1

We construe rule 60(b) liberally to ensure

that c lo se cases are resolved on the merits.

See Rogers, 167 F.3d at 938. Indeed, “where

de nial of relief [under rule 60(b)] precludes

examination of the full merits of the cause,

even a slight abuse of discretion may justify reversal.” H

alicki, 151 F.3d at 471 (citing Seven

Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir.

Unit A Jan. 1981)).

We have found excusable neglect where attorneys have missed deadlines. Mere failure to

file a t imely appeal is not excusable, but where

an attorney failed to file notice of a change of

a ddress and did not receive the opponen t’s

motion for summary judgmen t until after a

default judgment had been entered against his

client, t he court granted relief. 2 We have excused attorneys who did not show up for trial in a slander suit. Seven Elves, 635 F.2d 396

( deciding that the district court had entered

judgment without examining the full merits of

the case or allowing appellants to present their

side of the argument). We also have grant ed

relief where an at t o rney failed to file an

appearance in a medical malpractice suit.

Roberts v. Rehoboth Pharm., Inc., 574 F.2d

846 (5th Cir. 1978). Likewise, where an

attorney missed by one day the deadline to file

a meritorious appeal, the court granted a rule

60(b) motion. M

ann v. Lynau gh, 6 90 F.

Supp. 562, 565 (N.D. Tex. 1 988) (internal

citations omitted). We have found excusable

neglect where the defendant did not realize he

had the burden to prosecute subpoena

proceedings after t heir removal to district

court. Sparks v. Gesell, 978 F.2d 226, 233-34

(5th Cir. 1992).

An important componen t of the rule 60-

(b)(1) analysis, however, is the concern that

the court not disturb the finalit y of a judgment

without good reason. C

f. Rogers, 167 F.3d at

938 (listing the merits of the defendant’s claim

as a necessary factor). We have gone to great

lengt h s to avoid a miscarriage of justice: In

Gray

, 5 74 F.2d at 214, the court found that a

district attorney’s failure to c a ll certain

witnesses was not “excusable neglect” under

rule 60(b)(1), but be cause the testimony of

those witnesses probably would alter an

important factual determination, the court

concluded that the district court had abused its

discretion. G ray, 574 F.2d at 214. Broussard

must show “both the existence of a sufficiently

meritorious defense and the absence o f a fair

op port unity

to present that defense.” S even

Elves, 635 F.2d at 403.

Assuming arguendo that Broussard did not

have a fair opportuni ty to present his defense,

h is lack of a meritorious claim prevents us

f rom reversing the denial of rule 60(b) relie f

. 1 Cf. Rogers v. Har tford Life & Accident Ins.

Co., 167 F.3d 933 , 938 (5th Cir. 1999)

(concluding that rule 60(b )(1) applied where a

party had fai led to take minimal steps to ensure

that it received a copy of a complaint of which it

was aware and to which it should have responded).

2 Compare Halicki, 1 51 F.3d at 470 (deny ing

relief where movant “misunder stood” the filing

deadline for an appeal) with Blois v . Friday, 6 12

F.2d 938 (5th Cir. 1980) (finding excusable neglect).4

In it s thorough opinion, the district court

carefully examined each of Broussard’s claims

but concl

uded that each was either

procedurally barred or without merit or both. 3

Broussard presented not one close legal

question on which additional argument c oul d

have affected the outcom e. C f. Gray, 574

F.2d at 214. “It is not enough that the

granting of relief might have been permissible,

or even warranted 

### SS

denial must have been so

unwarranted as to constitute an abuse of

discre tion.” Seven Elves, 635 F.2d at 402.

Because no substantia l injustice resulted, the

district court did not commit reversible error.

III.

In h is rule 60(b) motion, Broussard avers

that the state should have provided his lawyer

with more money to investigate his habeas

claims. This port io n of the request for COA

should be analyzed as a successive habeas

petition. S ee Rich, 141 F.3d at 551. Although

he does not say so explicit ly, Broussard seems

to suggest that the additional funds woul d

have helped him to develop the factual record

through evidentiary hearings. He does not

identify specific factual questions that were inadequ at ely developed by the state court, but

he argues th at his claims were “denied a full

and fair hearing.”

In its opinion, the d i strict court indicates

that the state conducted an evidentiary hearing

on the application, and Broussard has not

identified any specific way in which it was

defective. Even assuming a rguendo that

Broussard has raised a constitutional claim under the Due Process Clause of the Fourteenth

Amendment, he has not tied this claim to any

previous claim

in his habeas petition. Thus,

we treat it as a new claim.

A new claim presented in a succ e ssive

habeas petition shall be di smissed unless it

contains

(1) newly discovered evi d ence that, if

proven and viewe d in the light of the

evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have

fo und the movant guilty of the

underlying offense; or

(2) a new rule of con st it utional law,

made retroactive to cases on co llateral

review by the Supreme Court, that was

previously unavailable.

28 U.S.C. § 2255. Broussard has not even

suggested that he relies on a new rule o f

constitutional law, th at he was previously

unawar e o f the alleged insufficiency of the

funds to pursue his claim, or that the additional

funds would have proven his innocence. Thus,

we cannot grant a COA on this claim.

Accordingly, the request for COA is

DENIED.

3 Accord Halicki, 151 F.3d at 471 (“Our caselaw allows for more leniency in opening up default

judgments, not those in which the court has had a

chance to evaluate the merits.”).