Robert Gene Will, II v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

— CAPITAL CASE

1. In the federal habeas context, Gonzalez v. Crosby, 545 U.S. 524 (2005), held that a post-judgment motion for relief under Federal Rule of Civil Procedure 60(b) does not constitute a “second or successive” petition under 28 U.S.C. § 2244 that district courts lack jurisdiction to consider if the motion “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Id. at 532. Circuits apply this test often and are in disarray. The first question is: Whether a habeas petitioner makes a valid Rule 60(b) motion by arguing that, due to an incorrect procedural-default ruling, the district court (1) only briefly addressed a claim’s merits and/or (2) made more restrictive discovery decisions than it would have otherwise.

2. During Petitioner’s trial for the murder of a law enforcement officer, a cadre of uniformed deputies who had no role whatever in the litigation sat next to the jury, looming coercively. Petitioner challenged this as unconstitutional, to no avail in state court. The second question is: Whether the Fifth Circuit was wrong to conclude that the Texas Court of Criminal Appeals’ decision concerning Petitioner’s right to a fair trial was a reasonable application of clearly established Federal law and a reasonable determination of the facts.