# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 20516

**Trenton LeTroy Jackson,**

Petitioner

— Appellant **,**

versus **Bobby Lumpkin,** Director **,** Texas Department of Criminal Justice, Correctional Institutions Division **,** Respondent

— Appellee

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4: 0 9

- cv
- 3656

Before **Jolly ,**  **Willett ,**  and **Oldham ,**  Circuit Judges

. **Andrew S. Oldham** , Circuit Judge **:** Trenton LeTroy Jackson murdered his three

- year
- old daughter

. A Texas state court sentenced him to life imprisonment. We have twice refused
to authorize Jackson’s successive habeas petitions under 28 U.S.C. § 22 4 4 (b) (3)

. This appeal asks whether the district court properly interpreted Jackson’s motion for relief from the judgment under Rule 60 (b)

as a nother successive habeas petition. We answer yes and affirm. United States Court of Appeals Fifth Circuit 

### FILED February 7, 2022

Lyle W. Cayce Clerk Case: 20-20516 Document: 00516193177 Page: 1 Date Filed: 02/07/2022No. 20

- 20516

2 I. In 2004, a Texas jury convicted Jackson of murder. After exhausting
state

- law mechanisms for challenging his conviction, he filed a habeas petition in federal court in 2009. See 28 U.S.C. § 2254. The district court dismissed that petition as time

- barred under the one
- year statute of limitations in the Anti

- Terrorism and Effective Death Penalty Act of 1996 (“ **AEDPA** ”). See 28 U.S.C. § 2244(d)

. Jackson did not appeal that ruling. Jackson subsequently moved this court for authorization to file two successive habeas petitions , arguing that he ha d uncovered new evidence and that the prosecutor had presented false testimony. Two different panels of our court denied Jackson’s motions

. In re Jackson , No. 20

- 20137, ECF No. 13

- 2 (Apr. 1, 2020); In re Jackson , No. 20

- 20480, ECF No. 20

- 2 (Nov. 27, 2020). In denying his second motion for authorization, we warned Jackson against the further “filing of repetitive and frivolous motions.” No. 20

- 20480, ECF No. 20

- 2, a t 2. On April 28, 2020, Jackson moved for relief from the judgment in the district court under Federal Rule of Civil Procedure 60 (b)(6)

. He again argued that new evidence supported his innocence and that his conviction should be overturned due to ineffective assistance of counsel and the prosecutor ’s use of false testimony. He also argued that his claim of actual innocence could overcome § 2244(d)’s limitations period under McQuiggin v. Perkins , 569 U.S. 383 (2013)

. The district court hel d that Jackson’s Rule 60(b) motion was in substance a successive habeas petition

. T he court therefore recharacterized the motion and found that it lacked jurisdiction absent our prior authorization under 28 U.S.C. § 2244(b). The court then transferred the case to us so we could consider whether to issue that authorization. See 28 U.S.C. § 1631. Case: 20-20516 Document: 00516193177 Page: 2 Date Filed: 02/07/2022No. 20

- 20516

3 Jackson timely appealed the district court’s transfer order. We have previously held that such transfer orders are appealable under the collateral order doctrine

. I n re Bradford , 660 F.3d 226, 229 (5th Cir. 2011) (per curiam)

. And our precedent dictates that Jackson may appeal the district court’s transfer order without a certificate of appealability. United States v. Fulton , 780 F.3d 683, 688 (5th Cir. 2015). Our re view is de novo

. United States v. Villarreal , 723 F.3d 609, 610 (5th Cir. 2013) (per curiam)

. II. The only question presented is whether the district court correctly interpreted Jackson’s Rule 60(b) motion as a disguised and otherwise

- barred successive habeas petition. It did.
T he Supreme Court ’s decision in Gonzalez v. Crosby , 545 U.S. 524 (2005), controls our analysis . There, the Court considered the possibility that state prisoners could use Rule 60 (b) motions to evade **AEDPA** ’s limitation s on successive habeas petitions. * The Court held that Rule 60(b) motions which present habeas “claims,” see 28 U.S.C. § 2244(b), should be t reated as successive habeas petitions subject to the strictures of § 2244 (b)

. Gonzalez , 545 U.S. at 531. Otherwise, “ use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive

- petition bar. ” Id. at 532. How are courts to decide whether a Rule 60(b) motion presents a habeas “claim”? The Gonzalez Court focused on whether the motion “seeks

* Rule 60(b) allows a party to ask the district court for relief “from a final judgment, order, or proceeding” based on grounds that include “excusable neglect,” “newly discovered evidence,” “misconduct by an opposing party,” and “any other reason that just ifies relief.” **Fed. R. Civ. P.** 60(b). Case: 20-20516 Document: 00516193177 Page: 3 Date Filed: 02/07/2022No. 20

- 20516

4 to add a new ground for relief” or “attack s the federal court’s previous resolution of a claim on the merits

. ” Ibid. I t gave three examples of motions that qualify : first, a motion seeking leave to bring a new claim of constitutional error that was previously omitted due to “excusable neglect”; second, a motion seeking leave to present newly discovered evidence in support of a claim previously argued ; and third, a motion se eking relief based on a subsequent change in substantive law. See id. at 530

– 31 (quotation omitted)

. These are all quintessential habeas claims, and petitioners may not use Rule 60(b) to evade **A E**  **DPA** ’s limits on their cognizability

. On the other hand, the C ourt clarified that a movant is not making a habeas claim “ 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

- lim itations bar. ” Id. at 532 n.4 ; cf. Brannigan v. United States , 249 F.3d 584, 588 (7th Cir. 2001) ( distinguishing different habeas “claims” ). Jackson’s Rule 60(b) motion argued that new evidence demonstrates his counsel’s ineffectiveness and shows that his conviction was constitutionally infirm. He also argued that the prosecutor violated his due process rights by presenting false testimony. But we have repeatedly held, relying on Gonzalez , that this kind of argumentation is “fundamentally substantive” and presents “paradigmatic habeas claim[s].” In re Coleman , 768 F.3d 367, 372 & n.17 (5th Cir. 2014) (per curiam) (quotation omitted); see also, e.g. , Runnels v. Davis , 746 F. App’x 308, 315 (5th Cir. 2018); In re Jasper , 559 F. App’x 366, 371 (5th Cir. 2014). The district court thus properly characterized Jackson’s Rule 60(b) motion as a successive habeas petition. Jackson responds by pointing to footnote 4 of Gonzalez

. There the Court stated that a Rule 60(b) motion does not present a habeas claim 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 Case: 20-20516 Document: 00516193177 Page: 4 Date Filed: 02/07/2022No. 20

- 20516

5 to exhaust, procedural default, or statute

- of

- limitations bar. ” 545 U.S. at 532 n.4. But Jack son has no basis to argue that the district court’s 2010 ruling that his first § 2254 petition was time

- barred “was in error.” Ibid. Instead he argues that, armed with new evidence, he can now make a substantial showing of his actual innocence and thus esc ape § 2244(d)’s limitations period under McQuiggin . That has nothing to do with the correctness of the district court’s 2010 statute

- of

- limitations ruling. It has everything to do with “presenting new evidence in support of .

. . claim[s] already litigated ”

— specifically, Jackson’s ineffective ness and due process claims, which he has already litigated at length. Id. at 531. And according to Gonzalez , a Rule 60(b) motion “present ing new evidence in support of a claim already litigated” is a paradigmatic examp le of a disguised successive § 2254 petition. Ibid. Jackson separately argues that the district court must consider his Rule 60(b) motion under McQuiggin

. That case held that a first

- time federal habeas petitioner could overcome § 2244(d)’s limitations period by making a convincing showing of his actual innocence. McQuiggin , 569 U.S. at 386. But McQuiggin specifically distinguished second

- or
- successive petitions like the one at issue here: Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Congress ’ will to modify the miscarriage of justice exception with respect to second

- or
- successive petitions and the holding of evidentiary hearings in federal court. These provisions do not demonstrate Congress ’ intent to preclude courts from applying the exception, un modified, to “the type of petition at issue here”

— an untimely first federal habeas petition alleging a gateway actual

- innocence claim. The more rational inference to draw from Congress ’ incorporation of a modified version of the miscarriage of justice exce ption in §§ 2244(b)(2)(B) and 2254(e)(2) is simply this: In a case not governed by those provisions, i.e. , a first petition for federal habeas relief, the Case: 20-20516 Document: 00516193177 Page: 5 Date Filed: 02/07/2022No. 20

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6 miscarriage of justice exception survived **AEDPA** ’ s passage intact and unrestricted. Id. at 396

– 97. Put simply, McQuiggin recognized that **AEDPA** does eliminate the “miscarriage of justice” exception for second

- or
- successive petitioners like Jackson

.

* * * The district court properly re characterized Jackson’s Rule 60(b) motion as a successive habeas petition and transferred it to this court to consider whether it met the precertification criteria in 28 U.S.C. § 2244(b)(3). **AFFIRMED**

. Case: 20-20516 Document: 00516193177 Page: 6 Date Filed: 02/07/2022