MEMORANDUM OPINION AND ORDER DISMISSING RULE 60(B) MOTION FOR RELIEF AND GRANTING A CERTIFICATE OF APPEALABILITY

HAYDEN HEAD, Senior District Judge.

In 2012, Aaron F. Broussard, an attorney and the former president of Jefferson Parish, pled guilty to fraud and theft. He was sentenced in February 2013. Broussard previously filed a motion to vacate, set-aside or correct his sentence pursuant to 28 U.S.C. § 2255 which this Court denied and the circuit court affirmed. Broussard challenges that denial by motion for relief from judgment based upon newly discovered evidence pursuant to Rule 60(b). This Court orally denied Broussard's Rule 60(b) motion at the close of argument on the motion on June 1, 2015, and by written Order the same day.

The threshold issue is whether Broussard's motion is a second or successive § 2255 motion over which this Court may not exercise jurisdiction without circuit court approval, or whether the Court may rule on it as a Rule 60(b) motion. For the reasons that follow, the Court finds that Broussard's motion is second or successive and must be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are well-known to the parties and are set forth in more detail in this Court's previous Memorandum Opinion and Order dated July 11, 2014. D.E. 276. The facts repeated are those necessary to decide the motion before the Court.

In September 2012 Broussard pleaded guilty to Counts One and Twenty-Seven of a multiple count Second Superseding Indictment. Count One alleged a conspiracy to commit payroll fraud and Count Twenty-Seven charged Broussard with theft concerning programs receiving federal funds. D.E. 117.1 Broussard entered into a plea agreement that included a waiver of his right to collaterally attack the judgment, except for claims of ineffective assistance of counsel. D.E. 198. He was sentenced on February 25, 2013, to forty-six months imprisonment on each count, to be served concurrently. D.E. 237. He did not appeal.

During the original proceedings and before his plea of guilty, Broussard attacked the integrity of the government's prosecution.2 During the same period as Broussard's prosecution, other criminal cases involving police misconduct and municipal corruption were also proceeding in the district courts of the Eastern District of Louisiana. Prosecutorial misconduct was uncovered in some of those cases,3 and a court-ordered investigation ensued, as well as the internal investigation by the Department of Justice (DOJ) Office of Professional Responsibility (OPR).

In late November 2012, two months after the Court accepted Broussard's guilty plea, the United States Attorney (USA) for the Eastern District Jim Letten acknowledged to the Court by sealed letter that First Assistant Jan Mann blogged about the Broussard case and misrepresented facts to the Court in the government's sealed filing dated July 2, 2012, attached to Letten's letter. The Court notified Broussard and his counsel of that information during a December 3, 2012, telephone hearing with the parties and unsealed Letten's letter and Mann's previously sealed filing. D.E. 204.

Thereafter, Broussard filed a lengthy motion that urged the Court to hold an evidentiary hearing to investigate prosecutorial misconduct during all phases of this case from the grand jury proceedings to plea bargaining, mentioned the "possible need to recuse the U.S. Attorney's Office [USAO] for the Eastern District of Louisiana" and sought sanctions. D.E. 205. Broussard did not request dismissal of the indictment against him or to withdraw his guilty plea. Id. After considering the briefing and evidence by the parties, the Court denied Broussard's motion for hearing, for discovery or to recuse the USAO. D.E. 218.4

Broussard filed a § 2255 motion to vacate, set-aside or correct sentence in February 2014 in which he alleged that his counsel provided ineffective assistance because counsel was unable to adequately advise Broussard whether to plead guilty or to proceed to trial due to counsel's inability to discover the full extent of prosecutorial misconduct. See D.E. 250-1. This Court denied the motion after finding that Broussard had not established ineffective assistance of counsel. D.E. 276. The Court granted Broussard a Certificate of Appealability. Id. Broussard appealed to the Fifth Circuit Court of Appeals which denied relief. United States v. Broussard, No. 14-30876 (5th Cir. March 4, 2015) (per curiam) (designated unpublished).

II. MOVANT'S CLAIMS

Broussard alleges that he has newly discovered evidence that warrants the reopening of his § 2255 proceedings, i.e. the December 2013 OPR Report by DOJ which discloses the results of OPR's investigation into prosecutorial misconduct within the USAO in the Eastern District.5 Broussard unsuccessfully sought to obtain the report in discovery during the § 2255 proceeding. D.E. 271. The Report documents ethics violations by members of the USAO that occurred before and during Broussard's prosecution and the prosecution of others in separate criminal proceedings. Broussard claims that if his counsel had known the full extent of the ethical violations during his prosecution, the USAO for the Eastern District of Louisiana would have recused itself and Broussard's prosecution would have been dismissed by the new, independent prosecutor.

After the government responded to Broussard's Rule 60(b) motion, Broussard filed a motion for leave to reply and for a hearing. D.E. 288, 289.

III. ANALYSIS

Broussard wants a "do-over" on his § 2255 motion because "the extraordinary circumstances . . . whereby the government continued to withhold existence of Mann's deceitful and conflicted misconduct throughout the entirety of the § 2255 proceedings . . . affected the integrity of these proceedings." D.E. 284-1, p. 12. Broussard is only entitled to a "do-over" if his newly discovered evidence affects the integrity of the § 2255 proceedings.

A. Rule 60(b) and Second or Successive Motion

Broussard seeks to begin § 2255 proceedings anew with consideration of the OPR Report and perhaps other evidence. See D.E. 289-2, p. 2. Thus the question is whether his motion is a substantive attack on this Court's previous resolution, or rather a complaint that a flaw in the proceedings prevented proper resolution of the merits. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013) ("where a Rule 60(b) motion advances one or more substantive claims, as opposed to a merely procedural claim, the motion should be construed as a successive § 2255 motion."); Ruiz v. Quaterman, 504 F.3d 523 (5th Cir. 21007) (Rule 60(b) motion not second or successive where it challenged application of procedural bar); see also United States v. Avalos-Vasquez, 339 Fed. App'x. 875, 877-78 (10th Cir. 2009); United States v. Smith, 932 F.Supp.2d 656, 657-58 (M.D. La. 2011) (finding Rule 60(b) motion to be second or successive).

It is only when a Rule 60 motion "attacks . . . some defect in the integrity of the federal habeas proceedings," that it does not raise a second or successive claim. Gonzalez, 545 U.S. at 532. As an example, in Gonzalez, the movant challenged the application of the statute of limitations which prevented a ruling on the merits of his petition. Id., 545 U.S. at 535. In Avalos-Vasquez the Tenth Circuit held that a Rule 60(b) motion based on the government's failure to serve its response on petitioner which prevented the petitioner from filing a reply constituted a "true" Rule 60(b) allegation rather than a successive § 2255 motion. Whether "there exist or do not exist grounds entitling a petitioner to habeas corpus relief" is an "on the merits" decision. Gonzalez, 545 U.S. at 532 & n.4.

B. Newly Discovered Evidence

Broussard seeks reversal of this Court's on-the-merits denial of his previous § 2255 claim based upon the allegedly new evidence. Newly discovered evidence as set out in Rule 60(b)(2) is evidence that could not have been discovered with reasonable diligence, before time to move for a new trial. Fed. R. Civ. P. 60(b)(2). But in addition, the evidence must be "material and controlling and clearly would have produced a different result if present before the original judgment." Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir. 2003); see also Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005). In the criminal law context a motion for new trial based upon newly discovered evidence also requires materiality and diligence.6 Fed. R. Crim. P. 33; United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011).

The OPR Report that is newly available to Broussard, expands upon the previously known evidence of Jann Mann's blogging related to Broussard, her false submissions to this and other courts, and the testimony by Thomas Anderson with the Executive Office of the Office of United States Attorneys (EOUSA) that he would have recommended recusal of the USAO if he had known of Mann's blogging in May of 2012.

Perricone's blogging was the subject of news reports in New Orleans beginning in March 2012, months before Broussard's guilty plea.7 In early November 2012, approximately five weeks after Broussard's guilty plea, The Times Picayune also reported that First Assistant Jan Mann likewise blogged about public corruption cases. "First Assistant U.S. Attorney Jann Mann demoted after admitting online commentary," The Times Picayune, November 8, 2012.

The OPR report provided details of the blogging to a greater extent than the newspaper reports including the text of two of three blog posts by Mann related to Broussard.8 The Report detailed Mann's conflict of interest with her client, the United States and detailed why the USAO was recused from some cases. Broussard argues that Mann's blogging, if known before he pleaded guilty, would have caused recusal of the USAO in his case, based upon Anderson's testimony reported by OPR. Had the USAO been recused, either DOJ or another office would have been brought in to prosecute Broussard. Broussard focuses on this last piece of information. He speculates that if this Court had known that the EOUSA internally would have recommended recusal of the USAO that this Court would have disqualified the USAO. Although DOJ might have decided that the USAO should be recused, that is a matter within the Executive Branch and is governed by different set of rules and considerations than apply to this Court's decision. Indeed, by the time Broussard was sentenced, Mann and Perricone had retired and Letten had resigned. A different United States Attorney was in charge.9

Virtually all of the information regarding Jann Mann's perfidy was made known, albeit in less detail, to Broussard by December 3, 2012. This Court denied Broussard's far-ranging request for discovery and for an evidentiary hearing in the original proceedings because Broussard waived the misconduct and the opportunity to challenge venue by pleading guilty and did not seek to withdraw his guilty plea. See D.E. 218. Broussard has never sought to withdraw his guilty plea.10 The relief he seeks still appears to be an expedition through government misconduct in the hope that his conviction will somehow be vacated, not by Court action, but by the independent act of the government.

Mann's blogging and her false statements to this Court do not constitute newly discovered evidence. Anderson's testimony regarding his internal recommendation, may be new and the testimony may be evidence, but it is not material to any matter before this Court, then or now. Anderson's internal recommendation as to recusal is not binding and not evidentiary on any defect in the habeas proceedings. None of Broussard's allegedly newly discovered evidence reveals previously unknown misconduct that affected the integrity of the § 2255 proceedings. As a result, the Court finds Broussard's Rule 60(b)(2) motion is not meritorious and is thus a second or successive motion that this Court may not consider unless Broussard obtains pre-certification from the Fifth Circuit Court of Appeals. Gonzalez, 545 U.S. at 531; see also Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000);11 28 U.S.C. § 2255(h); United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000) (district court properly dismissed second or successive claim).

IV. CERTIFICATE OF APPEALABILITY

An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A). Although Broussard has not yet filed a notice of appeal, the § 2255 Rules instruct this Court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, § 2255 Rules.

This Court recognizes that this case presents unique circumstances. Accordingly the Court GRANTS Broussard a Certificate of Appealability on his claim that his Rule 60(b) motion challenges the integrity of prior proceedings and is not a second or successive motion.

V. CONCLUSION

The Court GRANTS Broussard's motion for leave to file a reply (D.E. 289) and instructs the Clerk to file D.E. 289-2 separately in the docket. The Court previously GRANTED Broussard's request for oral argument (D.E. 288) on his Rule 60(b) motion. Broussard's Rule 60(b) motion (D.E. 284) is DISMISSED as second or successive, but the Court GRANTS him a Certificate of Appealability.