Gaines v. Lumpkin ( 2022 )

Case: 21-10301 Document: 00516263884 Page: 1 Date Filed: 04/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 1, 2022
No. 21-10301 Lyle W. Cayce
Summary Calendar Clerk
Barton Ray Gaines,
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 Northern District of Texas
USDC No. 4:08-CV-147
Before Stewart, Haynes and Ho, Circuit Judges.
Per Curiam:*
Barton Ray Gaines, former Texas prisoner # 1139507, has moved for a
certificate of appealability (COA) to appeal the district court’s disposition of
his Federal Rule of Civil Procedure 60(b)(6) motion. He sought relief from
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-10301 Document: 00516263884 Page: 2 Date Filed: 04/01/2022
No. 21-10301
the judgment dismissing as time barred his 28 U.S.C. § 2254 application in
which he challenged his convictions for aggravated robbery with a deadly
weapon. The district court found that the motion should be dismissed in part
as an unauthorized successive § 2254 application and concluded that the
motion otherwise was untimely and did not allege exceptional circumstances.
Also, the district court denied Gaines’s motion to recuse the district court
judge.
Gaines argues that the district court erred in dismissing his Rule 60(b)
motion in part as a successive § 2254 application. He asserts that his motion
alleged an apparent defect in the integrity of the federal habeas proceedings,
specifically, a conflict of interest involving his habeas counsel, and contended
that the conflict affected whether his § 2254 application was timely filed.
Also, he contends that his Rule 60(b)(6) motion, which was filed more than
12 years after the judgment dismissing his § 2254 application, was filed in a
reasonable time after he discovered the conflict and presented exceptional
circumstances. He further asserts that the district court erred in denying his
motion to recuse.
A prisoner is entitled to a COA if he makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Gaines must
show that reasonable jurists could debate the correctness of the disposition
of the Rule 60(b) motion. See Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011).
Gaines has not made the required showing. Accordingly, his motion
for a COA is DENIED. His motion to proceed in forma pauperis on appeal
also is DENIED.
A COA is not required to appeal the denial of a motion to recuse.
Trevino v. Johnson, 168 F.3d 173, 176-78 (5th Cir. 1999). Gaines fails to show
that the district court judge was biased against him, and he provides nothing
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Case: 21-10301 Document: 00516263884 Page: 3 Date Filed: 04/01/2022
No. 21-10301
to suggest that the judge’s impartiality might reasonably be questioned. See
28 U.S.C. § 455(a), (b)(1); United States v. Scroggins, 485 F.3d 824, 830 (5th
Cir. 2007). The denial of the motion to recuse is AFFIRMED.
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