Supreme Court of the United States · Official docket →
Joseph Gamboa v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 16-70023 · judgment March 16, 2023
Before the decision, about 3.7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Fifth Circuit decision below, and a circuit split argued in the petition, and down for a state or local-government respondent.
Question presented
Congress in 18 U.S.C. § 3599 gave indigent state prisoners sentenced to death a right to court-appointed counsel in federal habeas proceedings under AEDPA, 28 U.S.C. § 2254. The district court appointed § 3599 counsel to represent petitioner in this case. Appointed counsel abandoned petitioner. He met with petitioner only once, told petitioner he thought he was guilty, failed to investigate any facts or develop any legal claims, and conducted only one day of legal research. After nearly a year of extensions and virtually no work on the case, counsel filed a sham petition containing seven claims copied and pasted from the petition of another client, Obie Weathers, that contained generic, legally foreclosed challenges to the Texas death penalty scheme. Mr. Weathers’s name even appears in the petition’s prayer for relief. And in response to the State’s answer to the petition he had filed, counsel filed an untimely, twoparagraph reply conceding all seven claims were foreclosed. Petitioner promptly moved pro se for the appointment of new counsel. But it was already too late. The district court denied his pro se motion and, almost immediately thereafter, denied counsel’s habeas petition. Petitioner sought to remedy counsel’s abandonment by filing a Rule 60(b) motion to reopen the judgment. The district court, applying controlling Fifth Circuit precedent, denied petitioner’s motion and denied him a certificate of appealability. The Fifth Circuit affirmed over a concurrence by Judge Dennis, who urged the court to take this case en banc to overrule its precedent. The question presented is: Whether a Rule 60(b) motion claiming that habeas counsel’s abandonment prevented the consideration of a petitioner’s claims should always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005). (i)
Counsel of record
For petitioner
Andrew Timothy Tutt
Arnold & Porter Kaye Scholer
For respondent
Ali Mustapha Nasser
Texas Office of the Attorney General
Proceedings
- May 13 2024Petition DENIED.
- May 06 2024DISTRIBUTED for Conference of 5/9/2024.
- Apr 22 2024DISTRIBUTED for Conference of 4/26/2024.
- Apr 22 2024Rescheduled.
- Apr 16 2024Rescheduled.
- Apr 15 2024DISTRIBUTED for Conference of 4/19/2024.
- Apr 10 2024Rescheduled.
- Apr 08 2024DISTRIBUTED for Conference of 4/12/2024.
- Mar 26 2024Rescheduled.
- Mar 25 2024DISTRIBUTED for Conference of 3/28/2024.
- Mar 19 2024Rescheduled.
- Mar 18 2024DISTRIBUTED for Conference of 3/22/2024.
- Mar 13 2024Rescheduled.
- Mar 11 2024DISTRIBUTED for Conference of 3/15/2024.
- Feb 29 2024Rescheduled.
- Feb 26 2024DISTRIBUTED for Conference of 3/1/2024.
- Feb 21 2024Rescheduled.
- Feb 07 2024DISTRIBUTED for Conference of 2/23/2024.
- Feb 05 2024Electronic record received from the U.S. District Court for the Western District of Texas.
- Jan 16 2024Record Requested.
- Jan 16 2024Record received from the U.S. Court of Appeals for the Fifth Circuit. The record is available on PACER.
- Jan 03 2024DISTRIBUTED for Conference of 1/19/2024.
- Dec 29 2023Reply of petitioner Joseph Gamboa filed. (Distributed)
- Dec 20 2023Brief of respondent Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, in opposition filed.
- Nov 20 2023Motion to extend the time to file a response is granted and the time is further extended to and including December 20, 2023.
- Nov 17 2023Motion to extend the time to file a response from November 29, 2023 to December 20, 2023, submitted to The Clerk.
- Oct 30 2023Brief amici curiae of Former Federal and State Prosecutors filed.
- Oct 30 2023Brief amicus curiae of American Bar Association filed.
- Oct 30 2023Brief amici curiae of Habeas Scholars filed.
- Oct 17 2023Motion to extend the time to file a response is granted and the time is extended to and including November 29, 2023.
- Oct 16 2023Motion to extend the time to file a response from October 30, 2023 to November 29, 2023, submitted to The Clerk.
- Sep 22 2023Petition for a writ of certiorari filed. (Response due October 30, 2023)
- Jul 18 2023Application (23A38) granted by Justice Alito extending the time to file until September 22, 2023.
- Jul 13 2023Application (23A38) to extend the time to file a petition for a writ of certiorari from July 24, 2023 to September 22, 2023, submitted to Justice Alito.