IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-40295

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WINDELL BROUSSARD,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

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:*

Windell Broussard was convicted of

murdering his estranged wife and her son and

was sentenced to 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 FED. R. CIV. P. 60(b).

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

attorneys’ negligence prevented himfromfully

and fairly litigating his habeas claims and that

the state court erred in not giving him more

funds to litigate his claims. We deny the

request for COA.

I.

Broussard had two attorneys: Paula Effle,

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4.
2

an experienced capital habeas litigator, and

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

notifyHawthorne, who assumed that Effle was

taking care of the case and took no steps to

ensure that she wasstill 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 upon 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) mistake,

inadvertence,surprise, or excusable neglect

. . . [or] (6) any other reason justifying

relief from the operation of judgment.

FED. R. CIV. P. 60(b)(1), (6). Broussard

suggests that either the attorneys’ negligence

was excusable or the circumstances 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 that analysis. A rule 60(b)

motion alleging constitutional groundsforsetting aside a conviction may be treated as a successive habeas petition 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, treaties, or Constitution of

the United States. 28 U.S.C. § 2254(a). 

Broussard’s motion for relief from final

judgment under rule 60(b) makes no such

claim; he argues only that he “was denied any

opportunity 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

usesthe term“due process.” Thus, because he

alleges no constitutional violation, this claimis

no basis for habeas relief, so we deny COA on

this issue.

B.

We also may analyze Broussard’s claim for

rule 60(b) relief as an ordinary request for

relieffrom judgment. Rule 60(b) may apply in

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

209, 214 (5th Cir. 1978), without being

subject to the successive petition restrictions

of the AEDPA, see Randall S. Jeffrey,

Successive Habeas Corpus Petitions and Section 2255 Motions afterthe Antiterrorism and

Effective Death Penalty Act of 1996:

Emerging Procedural and Substantive Issues,

84 MARQ. L. REV. 43, 66 (2000).

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

discretion. Halicki v. La. Casino Cruises,

Inc., 151 F.3d 465, 470 (5th Cir. 1998). 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 extraordinary

circumstance justifying relief under rule

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

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

mutually exclusive: If a party 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 act of God or other

circumstances beyond his control, we apply

rule 60(b)(6). Pioneer Inv. Serv. Co. v.

Brunswick Assoc. Ltd. Partnership, 507 U.S.

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

attorneys should have employed greater

safeguardsto ensure that action wastaken, we

use the “excusable neglect” analysis under rule

60(b)(1).1

We construe rule 60(b) liberally to ensure

that close cases are resolved on the merits.

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

denial of relief [under rule 60(b)] precludes

examination of the full merits of the cause,

even a slight abuse of discretion may justify reversal.” Halicki, 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 timelyappeal is not excusable, but where

an attorney failed to file notice of a change of

address and did not receive the opponent’s

motion for summary judgment until after a

default judgment had been entered against his

client, the 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 appellantsto present their

side of the argument). We also have granted

relief where an attorney 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. Mann v. Lynaugh, 690 F.

Supp. 562, 565 (N.D. Tex. 1988) (internal

citations omitted). We have found excusable

neglect where the defendant did not realize he

had the burden to prosecute subpoena

proceedings after their removal to district

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

(5th Cir. 1992).

An important component of the rule 60-

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

the court not disturb the finality of a judgment

without good reason. Cf. Rogers, 167 F.3d at

938 (listing the merits of the defendant’s claim

as a necessary factor). We have gone to great

lengths to avoid a miscarriage of justice: In

Gray, 574 F.2d at 214, the court found that a

district attorney’s failure to call certain

witnesses was not “excusable neglect” under

rule 60(b)(1), but because the testimony of

those witnesses probably would alter an

important factual determination, the court

concluded that the district court had abused its

discretion. Gray, 574 F.2d at 214. Broussard

must show “both the existence of a sufficiently

meritorious defense and the absence of a fair

opport unity to present that defense.” Seven

Elves, 635 F.2d at 403. 

Assuming arguendo that Broussard did not

have a fair opportunity to present his defense,

his lack of a meritorious claim prevents us

from reversing the denial of rule 60(b) relief.

1 Cf. Rogers v. Hartford Life & Accident Ins.

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

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

party had failed 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, 151 F.3d at 470 (denying

relief where movant “misunderstood” the filing

deadline for an appeal) with Blois v. Friday, 612

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

In its thorough opinion, the district court

carefully examined each of Broussard’s claims

but concluded that each was either

procedurally barred or without merit or both.3

Broussard presented not one close legal

question on which additional argument could

have affected the outcome. Cf. Gray, 574

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

granting of relief might have been permissible,

or even warrantedSSdenial must have been so

unwarranted as to constitute an abuse of

discretion.” Seven Elves, 635 F.2d at 402.

Because no substantial injustice resulted, the

district court did not commit reversible error.

III.

In his rule 60(b) motion, Broussard avers

that the state should have provided his lawyer

with more money to investigate his habeas

claims. This portion of the request for COA

should be analyzed as a successive habeas

petition. See Rich, 141 F.3d at 551. Although

he does not say so explicitly, Broussard seems

to suggest that the additional funds would

have helped him to develop the factual record

through evidentiary hearings. He does not

identify specific factual questionsthat were inadequately developed by the state court, but

he argues that his claims were “denied a full

and fair hearing.” 

In its opinion, the district 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 arguendo that

Broussard hasraised a constitutional claimunder 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 successive

habeas petition shall be dismissed unless it

contains

(1) newly discovered evidence that, if

proven and viewed 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

found the movant guilty of the

underlying offense; or 

(2) a new rule of constitutional law,

made retroactive to cases on collateral

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 of

constitutional law, that he was previously

unaware of the alleged insufficiency of the

fundsto pursue his claim, or that the additional

funds would have proven hisinnocence. 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.”).