WILLIAM CHARLES WEBB v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
No. 17-51143
United States Court of Appeals, Fifth Circuit
October 16, 2019
Lyle W. Cayce, Clerk
Appeal from the United States District Court for the Western District of Texas
Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.
William Charles Webb, Texas prisoner # 1888883, pled guilty to the offense of injury to a child and received a twenty-year sentence. Webb brings this challenge to his conviction under
I.
In September 2013, Webb pled guilty to the offense of injury to a child for which the state court sentenced him to a twenty-year prison term. Before entering his guilty plea, Webb filed motions asserting that he had the right to a speedy trial, asking that the state provide him with any exculpatory evidence in its possession, and requesting that substitute counsel be appointed. Despite Webb‘s guilty plea, the state trial court certified that Webb had not waived his right to appeal matters, such as these, that were raised by written motion before trial.
After exhausting his state court remedies, Webb came to federal court and filed a
After this court‘s mandate issued, Webb filed a pro se motion for relief from the district court‘s judgment under
Webb timely appealed. In response, a member of this court granted Webb a COA, allowing an appeal on the following issue:
[W]hether the district court abused its discretion in denying in part and dismissing in part Webb‘s Rule 60(b) motion . . . as to the three claims Webb preserved by a written motion prior to trial (namely, denial of the right to a speedy trial, violation of due process based on the suppression of evidence, and error in failure to appoint substitute counsel).
Order, Webb v. Davis, No. 17-51143, at 3 (5th Cir. Aug. 29, 2018). As noted in the order, because Texas allows defendants who enter guilty pleas to appeal issues that were raised in written motions prior to trial, a petitioner who has pled guilty may raise those issues in a
II.
On appeal, Webb makes two arguments. First, that the district court erred in affording a presumption of correctness to the state court habeas proceedings. And second, that his trial counsel was ineffective. The respondent asserts that the district court lacked jurisdiction to grant Webb‘s Rule 60(b) motion. Alternatively, she argues that the district court did not abuse its discretion when it denied Webb‘s motion.
III.
As we have earlier noted, before we can proceed further with this appeal, we must assure ourselves that we have jurisdiction to adjudicate Webb‘s claims. “The requirement that jurisdiction be established as a threshold matter . . . is inflexible and without exception.” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998) (internal quotations and citations omitted). This court‘s jurisdiction to consider the merits of this appeal is predicated on whether the district court had jurisdiction to consider Webb‘s Rule 60(b) motion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). When the district court lacked jurisdiction, this court‘s “jurisdiction extends not to the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998) (quotations omitted).
The respondent first asserts that the district court lacked jurisdiction to grant Webb‘s Rule 60(b) motion because the legal basis for that motion had already been decided and rejected by this court when it declined to grant Webb a COA on the district court‘s initial denial of his
In any event, the mandate rule does not have merit here. The only orders issued by this court were the orders denying Webb‘s request for a COA and motion for reconsideration and rehearing en banc. Neither of these orders specifically addressed the district court‘s determination that Webb‘s guilty plea waived his claims for habeas relief. Instead, in denying Webb‘s request for COA, this court determined only that Webb had not shown “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Order, Webb v. Davis, 17-50123, at 2 (5th Cir. Oct. 25, 2017) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because this court‘s COA order did not “expressly or impliedly” decide that the district court had correctly determined that Webb‘s guilty plea waived his underlying claims, the district court could have granted Webb‘s Rule 60(b) motion without running afoul of the mandate rule.
B.
The respondent next argues that the district court lacked jurisdiction to grant Webb‘s motion because it amounted to an unauthorized second or successive
We have never squarely addressed whether a Rule 60(b) motion that challenges a district court‘s dismissal of claims based on the determination that the claims were waived by the petitioner‘s guilty plea is an unauthorized successive habeas application. But we do not write on a blank slate. In Gonzalez, for example, the Supreme Court provided the following instances of procedural rulings that habeas petitioners can challenge through a Rule 60(b) motion: rulings based on failure to exhaust, procedural default, or a statute-of-limitations bar. Id. at 532 n.4. We have since reasoned that other rulings that can be challenged in a postjudgment motion include: the district court‘s denial of funding, the district court‘s dismissal of claims without conducting an evidentiary hearing, and the district court‘s failure to consider claims presented in the habeas application. See Crutsinger v. Davis, 929 F.3d 259, 265-66 (5th Cir. 2019); United States v. McDaniels, 907 F.3d 366, 370 (5th Cir. 2018); United States v. Brown, 547 F. App‘x 637, 642 (5th Cir. 2013). Similarly, the Eleventh Circuit has recently held that “the denial of a claim based on a valid appeal waiver is not a decision on the merits” and therefore can be attacked through a Rule 60(b) motion. See Pease v. United States, 768 F. App‘x 974, 976 (11th Cir. 2019).
In the light of these precedents, we conclude that Webb‘s motion attacking the district court‘s determination that his guilty plea waived his habeas claims was only a Rule 60(b) motion and not a successive
IV.
We now turn to the merits of whether the district court erred in denying 60(b) relief to Webb. Whether to grant or deny Rule 60(b) relief is within the sound discretion of the district court. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). “It is not enough that the granting of relief might have been permissible, or even warranted;” instead, “denial must have been so unwarranted as to constitute an abuse of discretion.” Id. As stated, Webb claims he is entitled to relief
We thus focus on Rule 60(b)(1). A “mistake” under Rule 60(b)(1) includes judicial errors, but such an error must be a “fundamental misconception of the law,” and not merely an erroneous ruling. Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 695 (5th Cir. 1983). In considering this issue, we are mindful that we must liberally construe Webb‘s brief because he is proceeding pro se. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Even so, “arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Webb‘s appellate brief fails to address whether the district erred by denying his Rule 60(b)(1) motion as to his habeas claims based on denial of the right to speedy trial, suppression of evidence, and error in failure to appoint substitute counsel. Instead, his brief raises two arguments on issues that are not properly before us. First, Webb argues that the district court erred by affording a presumption of correctness to the state court habeas proceedings. This issue is not properly before us because Webb did not raise it in his Rule 60(b) motion. Next, Webb contends that his trial counsel was ineffective. Webb did raise this issue in his Rule 60(b) motion, but our review is confined to the issues granted a COA. See
V.
In sum, the mandate rule did not deprive the district court of jurisdiction to grant Webb‘s Rule 60(b) motion. We additionally hold that, when a petitioner files a Rule 60(b) motion attacking a district court‘s determination that the petitioner‘s habeas claims were waived by his guilty plea, the motion is not an unauthorized successive habeas petition. Nonetheless, because Webb has waived argument concerning the issue upon which this court granted appellate review, the judgment of the district court is
AFFIRMED.