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Ward v. Norris

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Submitted: September 24, 2008

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

Bruce Earl Ward was convicted of capital murder and sentenced to death. After exhausting his state court remedies, Ward petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing, among other things, that he was denied his Sixth Amendment right to effective assistance of counsel at the guilt phase of his trial. The district court*fn1 denied his petition and granted a certificate of appealability to this court to determine whether counsel was ineffective for failing to seek the recusal of the state court trial judge. While that appeal was pending, Ward’s counsel moved for relief from the district court’s judgment on the basis that Ward lacked capacity to proceed on his petition for writ of habeas corpus. The district court determined that the motion was a second or successive habeas petition under 28 U.S.C. § 2244 and concluded that it lacked jurisdiction to consider the motion. Ward’s later motion to alter or amend judgment was also denied. The district court then certified the following issue for review: whether the district court erred in ruling that Ward’s motion for relief from judgment and motion to alter or amend the judgment were second or successive petitions pursuant to 28 U.S.C. § 2244. The appeals have been consolidated, and we affirm.

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