United States Court of Appeals

for the Fifth Circuit

No. 22-70009

Richard Vasquez, 

Petitioner—Appellant, 

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Respondent—Appellee. 

Application for Certificate of Appealability from the 

United States District Court

for the Southern District of Texas

USDC No. 2:05-CV-59

Before Haynes, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

Richard Vasquez moves for a certificate of appealability (“COA”) to 

seek review of the district court’s denial of his Rule 60(b) motion for relief 

from judgment in his federal habeas case. The district court denied 

Vasquez’s motion, ruling that it was actually an unauthorized successive 

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

February 24, 2023

Lyle W. Cayce

Clerk

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habeas petition. We conclude that reasonable jurists would not debate this 

determination, and we therefore DENY Vasquez’s application for a COA.1

I.

In 1999, a Texas jury convicted Vasquez of capital murder for killing 

his girlfriend’s four-year-old daughter, Miranda. During trial, the state 

prosecutors introduced testimony that Miranda: (1) was severely sexually 

assaulted before she died; (2) suffered blows to the head that were equivalent 

in force to being in a 65-mile-per-hour car accident; and (3) had cocaine levels 

in her blood that were double the lethal amount for an adult. Vasquez 

appealed his conviction and death sentence to the Texas Court of Criminal 

Appeals (“TCCA”), which affirmed. The TCCA also denied his petition 

for state habeas relief. 

In 2006, Vasquez petitioned for federal habeas relief under 28 U.S.C. 

§ 2254. In 2008, the district court denied the requested relief but granted a

COA on Vasquez’s claim that he received ineffective assistance of counsel at 

trial and on appeal. We affirmed, and the Supreme Court denied certiorari 

review. See Vasquez v. Thaler, 389 F. App’x 419, 432 (5th Cir. 2010) (per 

curiam), cert. denied, 563 U.S. 991 (2011). His petition did not directly 

challenge the aforementioned trial evidence; nor did the State specifically 

rely on that evidence in its response to Vasquez’s petition. 

In 2015, Vasquez filed a successive state habeas application 

challenging the evidence related to Miranda’s brain injury and the reports of 

cocaine in her system. He argued that recent developments in forensic 

1

 Vasquez subsequently filed a motion for authorization to file a successive petition

pursuant to 28 U.S.C. § 2244(b)(3)(A). In re Vasquez, No. 23-40079 (5th Cir. 2023). That 

motion remains pending, and this opinion addresses only the request for a COA in this case 

regarding the district court’s denial of Vasquez’s Rule 60(b) motion.

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science had cast doubt on the validity of that evidence. The TCCA disagreed 

that relief was warranted and denied Vasquez’s application. Ex parte 

Vasquez, No. WR-59,201-03, 2021 WL 3746008, at *1 (Tex. Crim. App. Aug. 

25, 2021).

In 2022—a decade after the conclusion of his federal habeas case—

Vasquez returned to federal court and filed a motion for relief under Rule 

60(b) of the Federal Rules of Civil Procedure. He urged the district court to 

reconsider his habeas petition, asserting that the initial judgment was 

procured through fraud. The district court disagreed. By order entered on 

July 11, 2022, the district court denied Vasquez’s motion, concluding that it 

lacked jurisdiction because the motion was, in substance, an unauthorized 

successive habeas petition. The court ruled, in the alternative, that Vasquez 

failed to show extraordinary circumstances warranting Rule 60(b) relief. 

After the district court denied Vasquez a COA, Vasquez moved for a COA 

from this court.2 

II.

A COA is generally required to appeal a district court’s denial of a 

Rule 60(b) motion for relief from a federal habeas judgment. See Hernandez 

v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (per curiam). To obtain a COA, 

a movant must make “a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–84 

(2000). A movant can satisfy this standard by “demonstrating that jurists of 

reason could disagree with the district court’s resolution of his constitutional 

2 Around the same time as this appeal, Vasquez appealed the district court’s July 

8, 2022, dismissal of his claim under 42 U.S.C. § 1983 alleging that he had been denied due 

process. Vasquez v. Collier, No. 22-70008 (5th Cir. 2022). Vasquez moved to voluntarily 

dismiss that appeal before any decision by this court; the dismissal has been granted.

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claims or that jurists could conclude the issues presented are adequate to 

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 

322, 327 (2003); see Slack, 529 U.S. at 484. 

In this context, Vasquez must establish that reasonable jurists could 

debate whether the district court correctly construed his Rule 60(b) motion 

as a successive habeas petition. The Antiterrorism and Effective Death 

Penalty Act (“AEDPA”) imposes strict limitations on successive habeas 

petitions. As a result of the difficulty in being able to file those petitions, state 

prisoners occasionally “use Rule 60(b) motions to evade AEDPA’s 

limitations on successive habeas petitions.” Jackson v. Lumpkin, 25 F.4th 

339, 340 (5th Cir. 2022). So, Rule 60(b) motions that actually present habeas 

“claims” must be “treated as successive habeas petitions subject to the 

strictures of” 28 U.S.C. § 2244(b). Id. 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.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). 

Based on these concerns, the Supreme Court has guided that a federal 

district court only has jurisdiction to consider a Rule 60(b) motion in habeas 

proceedings if the motion attacks “some defect in the integrity of the federal 

habeas proceedings,” and “not the substance of the federal court’s 

resolution of a claim on the merits.” Id. One example of such a defect is 

“[f]raud on the federal habeas court.” Id. at 532 n.5. On the other hand, if a 

Rule 60(b) motion advances a new claim or attempts to attack the federal 

court’s previous resolution of a claim on the merits, then the motion will be 

treated as a successive habeas petition. Id. at 532–33. 

III.

Vasquez urges that his Rule 60(b) motion was not a disguised 

successive habeas petition because it attacked a defect in the federal 

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proceedings. He relies on a “fraud on the court” theory. To support this 

theory, Vasquez contends that the state trial prosecutors relied on “false 

evidence”—i.e., the purportedly scientifically invalid evidence of Miranda’s 

brain injuries and high levels of cocaine in her system—to procure his 

conviction. Per Vasquez, that evidence has since been invalidated by recent 

developments in forensic science. So, Vasquez argues that the State 

committed fraud on the court when it relied on that evidence here in 

responding to his federal habeas petition. He urges that the fraud impaired 

the district court’s ability to fairly adjudicate his ineffective assistance of 

counsel claim. Thus, he reasons that this “fraud” moves his challenge into 

the proper scope of a Rule 60(b) motion. The district court rejected 

Vasquez’s theory, and we conclude that jurists of reason would not disagree 

on or debate this contention. 

To start, fraud on the federal court is a very difficult standard to meet. 

Generally, a petitioner must “show an unconscionable plan or scheme which 

is designed to improperly influence the court in its discretion.” Fierro v. 

Johnson, 197 F.3d 147, 154 (5th Cir. 1999) (quotation omitted). We’ve 

instructed then, that fraud on the court is limited to claims of “only the most 

egregious misconduct.” Id. (quotation omitted). Examples include “bribery 

of a judge or members of a jury, or the fabrication of evidence by a party in 

which an attorney is implicated.” Id. (quotation omitted). Conversely, less 

egregious misconduct, such as nondisclosure, generally will not suffice. See 

id.; see also First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir. 

1996). Importantly, though, we are only concerned with conduct of the

parties in the federal proceedings. Fierro, 197 F.3d at 153–54. 

Here, Vasquez’s fraud theory centers entirely on purportedly false 

evidence used by the prosecution at the state trial. His contentions here are 

that the State’s continued reliance on that evidence constituted fraud on the 

federal court. But we have long held that “alleged fraud by the state trial 

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prosecutor” is insufficient to “establish fraud on the federal court.” See Lave 

v. Davis, 655 F. App’x 255, 259 (5th Cir. 2016) (per curiam) (emphasis 

added); see also Fierro, 197 F.3d at 153–54 (“[I]t is important to keep in mind 

that in reviewing the district court’s denial of the motion to vacate, we deal 

only with allegations of fraud on the federal courts, not any fraud that may 

have been perpetrated upon the state courts.”). As a result, jurists of reason 

thus could not debate that the federal proceedings did not involve fraud. 

In sum, we conclude that reasonable jurists would not debate that 

Vasquez failed to establish fraud on the federal court. Consequently, 

reasonable jurists would not debate the propriety of the district court’s ruling 

that Vasquez’s Rule 60(b) motion was an unauthorized successive habeas 

petition. 

Accordingly, IT IS ORDERED that the motion for a COA is 

DENIED. 

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