Gonzalez v. Secretary for the Department of CorrectionsGonzalez v. Secretary for the Department of Corrections
Lead Opinion
The Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), clamped down on second and successive petitions filed by state prisoners seeking federal habeas corpus relief under
Given the number of eases involved and the importance of the issues, we entered an order granting hearing or rehearing en banc in three cases in order to answer some common questions that have arisen about the use of
I.
We begin with the relevant facts and procedural history of each of the three cases before us, in the sequence in which the panel decisions or orders were issued in them.
A decade ago at a retrial Stephen Mob-ley was convicted and sentenced to death for the 1991 murder of a Domino’s Pizza employee during an armed robbery. See Mobley v. State,
Among the issues Mobley raised in his direct appeal was a contention that Fuller should not have been permitted to testify about the factors that influenced him to seek a death sentence in the case. Mobley,
The first thoughts of the Georgia Supreme Court on the subject had come during an earlier appeal Mobley filed following a mistrial due to error at his first trial. Mobley v. State,
When the case returned to it on direct appeal after the retrial, the Georgia Supreme Court had an opportunity to see the problems that had sprung from the eviden-tiary box that its ruling in the first appeal had opened. The Court realized that permitting testimony about a defendant’s plea offer and the reasons it had been rejected would likely lead to attorneys on both sides testifying and could also put highly inflammatory matters before the jury. Facing up to its mistake, the Court announced that evidence of a defendant’s conditional guilty plea offer and its rejection would not thereafter be allowed in Georgia capital cases. Mobley,
Thereafter, Mobley sought state habeas relief which was denied, see Turpin v. Mobley,
On July 16, 2002, which was two-and-a-half weeks after the United States Supreme Court denied certiorari in his appeal from the denial of federal habeas relief, Mobley filed an “Extraordinary Motion for New Trial as to Sentence” in state court. That motion sought a new sentencing stage trial where Mobley could present the victim’s mother to testify that the family had acquiesced in the prosecutor’s decision to seek the death penalty only because they had been unaware that a sentence of life without parole was an option. The state trial court denied Mobley’s motion, reasoning that even if the testimony of the victim’s mother were presented to a jury, “it [could] not reasonably be concluded that the opposition of the victim’s family to the death penalty ... would probably produce a different verdict.” See Mobley,
On August 2, 2002, Mobley filed in the federal district court a “Motion for Stay of Execution and for Relief from Judgment Pursuant to
Because it treated Mobley’s
On August 5, 2002, Mobley came to this Court with the following filings: an application under
On September 18, 2002, a panel of this Court, with one judge dissenting, extended the stay of execution that it had previously granted. Mobley v. Head,
Judge Tjoflat dissented from issuance of the stay of execution, and would have also denied: Mobley’s application for a certificate of appealability; his motion to recall the mandate that had issued in connection with our prior decision in the case; and an application for permission to file a second or successive habeas petition, which Judge Tjoflat thought Mobley had filed in the case, see n. 19 below. Mobley,
After Mobley was granted a stay of execution in light of the upcoming decision in Abdur’Rahman, the Supreme Court quashed the writ of certiorari in that case as improvidently granted. Abdur’Rahman v. Bell,
B.
The second would-be appellant is Emil Lazo, who was convicted in 1991 of conspiracy to possess with intent to distribute cocaine in violation of
In January 2002, Lazo filed a pro se motion in the district court styled: “Motion for Relief From Judgment in the Collateral Proceedings filed under
When the case reached this Court on Lazo’s notice of appeal, a panel characterized the threshold issue as whether Lazo was required to obtain a certificate of ap-pealability before he could appeal the denial of his motion. See id. at 573. Inquiring into the true nature of the motion, the panel explained that a
Examining the substance of what Lazo had filed in the district court, the panel concluded that it was not a true
The panel construed the notice of appeal Lazo had filed as an application to this Court for a certificate of appealability, and denied it because reasonable jurists would not find it debatable whether the district court had properly denied Lazo’s latest motion. Given his undisputed failure to obtain the certificate required by
We later vacated the panel’s order so that we could reconsider the case en banc. Gonzalez,
C.
Our final would-be appellant is Aurelio Gonzalez, who was convicted in a Florida
On June 17, 1997, Gonzalez filed a
A little over a year later, in July of 2001, Gonzalez filed a
When the appeal authorized by that certificate reached a panel of this Court for decision, it decided that the issue which had been specified in the certificate of appealability is not directly related to the order Gonzalez is seeking to appeal. Gonzalez v. Sec’y for the Dep’t of Corr.,
The Gonzalez panel decided that a certificate of appealability is required before an appeal of the denial of
As a ground for re-opening that judgment, Gonzalez’s latest motion asserted that Artuz v. Bennett,
The panel did not imply any view about whether Artuz would change the statute of limitations result in the case, Gonzalez,
We later vacated the panel’s order and reinstated the case for consideration en banc. Gonzalez,
II.
We begin our discussion of the law with this preliminary note. Throughout this opinion we do not distinguish between the three cases before us based upon whether they involve state prisoners and
A.
The Lazo and Gonzalez panel decisions address the certificate of appealability requirement as it applies to two broad categories of
The other category of
The Lazo panel held that the
B.
We agree with the Gonzalez panel that a certificate of appealability is required for the appeal of any denial of a
We find persuasive the explanation the Second Circuit has given for the majority position. See Kellogg,
The certificate of appealability is a threshold or gateway requirement which serves to filter out from the appellate process cases in which the possibility of reversal is too unlikely to justify the cost to the system of a full appellate examination. See Miller-El v. Cockrell,
Given that, it would make no sense to remove the filter when the same prisoner is appealing the denial of
While we respect the dissent’s different view on the issue of whether certificates of appealability are required, we find the reasoning behind its view unpersuasive. To begin with, the dissent’s criticism of our conclusion on this issue is based at least in part on a misunderstanding of it. The dissent says in Part IV that we are holding a petitioner must apply to this Court for leave to file his
The dissent’s criticism that no
Furthermore, a central premise of the dissent’s impossibility argument is that the decision of whether to issue a certificate of appealability must be confined to consideration of the debatability of a constitutional issue. It must be, the dissent reasons, because the certificate of appealability standard is whether “the applicant has made a substantial showing of the denial of a constitutional right.” See
The dissent’s position that a certificate of appealability is never required to appeal the denial of
Although the dissent attempts to distinguish much of the precedent against its position with the suggestion that the certificate of appealability requirement applies to the appeals of some but not all
The dissent fails to face up to those inescapable and undesirable results of its position. It does not even attempt to explain why Congress would have wanted to cut out clearly non-meritorious appeals from the denial of habeas relief, while at the same time letting all clearly non-meritorious appeals from the subsequent denial of
The burden would be significant. Under our position a single judge decides whether the appeal from a denial of
For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying
III.
The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”
The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336,
Of particular relevance to the three cases we have before us, each of which involves
A.
With these principles in mind we turn to the specific cases. The easiest case in which to decide the certificate of
B.
Gonzalez’s claim is a different matter. He contends that his guilty plea was unintelligent, unknowing, and involuntary based upon specific evidence he has proffered. From the record before us, which does not contain a transcript of the guilty plea proceeding (there is some indication no transcript exists), we cannot say that Gonzalez’s claim is not debatable among jurists of reason. Therefore, his appeal cannot be dispensed with at the certificate of appealability stage on the basis of the constitutional claim component.
As for the procedural component, Gonzalez must show that it is debatable among jurists of reason whether the intervening decision in Artuz v. Bennett,
In keeping with the dictates of
C.
As in Gonzalez’s case, so also in Mob-ley’s case. His constitutional claim may lack merit, but we cannot say based upon the record before us that it is not debatable among jurists of reason. The same is true of the procedural issues arising from his case. Until we decide what standards apply to
IV.
Having decided that the
A.
This question is critically important because of the consistent direction and the substantial extent to which limitations on second or successive petitions have evolved. The evolution has been toward greater finality of judgments through increasingly tight restrictions on second or successive petitions. We have gone from the days of the more permissive ends of justice and abuse of the writ standards, see, e.g., Sanders v. United States,
The central purpose behind the AEDPA was to ensure greater finality of state and federal court judgments in criminal cases, and to that end its provisions greatly restrict the filing of second or successive petitions. The Supreme Court and this Court have made these points many times before. See Miller-El v. Cockrell,
That central purpose of the AED-PA and its provisions specifically restricting the filing of second or successive petitions severely limit the application of
There’s a different way of explaining the same point. Congress allowed
Regardless of how one explains it, if the earlier adopted rule is inconsistent with the later enacted statutory provision, the rule yields to the statute to the extent of the inconsistency. And unless its operation is throttled back in habeas cases,
Most of the provisions of
No part of the rule, if it were applied to habeas cases, could do more harm to the finality of judgments and the interests protected by the AEDPA than
The discretion to reopen final judgments contemplated in most of the provisions of
We reject, because Congress in enacting the AEDPA has rejected, any notion that habeas proceedings are just another category of civil cases for purposes of
That means
B.
The Calderon case had a lengthy procedural history, but the relevant part of it for our purposes began after a panel of the Ninth Circuit reversed a district court’s grant of habeas relief as to the rape-murder conviction and death sentence of the petitioner, Thomas Thompson. The district court had granted that relief after concluding that Thompson had suffered from ineffective assistance of counsel, but the panel disagreed. See Calderon,
Thompson then brought forward new evidence that there had been no rape; he had found a witness who would testify to having seen the victim engaged in what appeared to be consensual sex with Thompson on the night she was murdered. Thompson filed in the court of appeals a motion to recall the mandate, and the next day he filed in the district court a
In denying Thompson’s
The Ninth Circuit panel denied Thompson’s motion to recall the appellate mandate, but two days before he was scheduled to be executed the en banc court voted to reсall the mandate, which had been issued 53 days earlier. Id. at 547-48,
One reason was that rehearing en banc would have been granted before the mandate issued but for procedural misunderstandings and mistakes within the court itself. The other reason was that the panel’s decision reversing the grant of habeas relief “would lead to a miscarriage of justice.” Id. at 548,
The Supreme Court reversed the en banc Ninth Circuit’s decision. In doing so, the Court acknowledged that generally the power of a court of appeals to recall its mandate is inherent and unquestioned. Id. at 549-50,
Underlying those limitations imposed by its decisions is what the Supreme Court characterized as “our enduring respect for the State’s interest in the finality of convictions that have survived direct review within the state court system.” Id. at 555,
The interest in finality of judgment, which is of considerable importance when state review of a conviction and sentence has been completed, becomes truly compelling, in the Supreme Court’s view, after a federal court of appeals has issued a mandate denying habeas relief. At that point, the State is entitled not simply to an assurance of finality but, to use terms from the Calderon opinion, to “real finality” or “actual finality.” Id. at 556-57,
Or, as the Supreme Court said, when judging the propriety of any exercise of the power to recall a mandate, “we measure it not only against standards of general application, but also against the statutory and jurisprudential limits applicable in habeas corpus cases.” Id. at 553,
In a§ 2254 case, a prisoner’s motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of§ 2244(b) . Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application,§ 2244(b)(1) , or the bar against litigation of claims not presented in a prior application,§ 2244(b)(2) . If the court grants such a motion, its action is subject to AEDPA irrespective of whether the motion is based on old claims (in which case§ 2244(b)(1) would apply) or new ones (in which case§ 2244(b)(2) would apply).
Id. at 553,
More analysis was required in that case, however, because of a procedural wrinkle: The en banc Ninth Circuit had insisted that it did not recall the mandate based upon anything contained in Thompson’s motion, but instead coincidentally recalled its mandate sua sponte based solely upon the claims contained in the original habeas petition and the evidence that had been presented in support of that petition. Id. at 548, 554,
Because the recall of the mandate had not been based upon Thompson’s motion and the en banc court had not considered anything contained in that motion in making its decision, the Supreme Court acknowledged that the terms of
The miscarriage of justice standard is appropriate in that situation, the Court reasoned, because it “comports with the values and purposes underlying AEDPA,” even though the AEDPA provisions did not literally apply in that case because the en banc court action had not been based upon the petitioner’s motion. Id. at 558,
The lessons about reopening a final ha-beas judgment that we draw from the Calderon decision and opinion are that
The Supreme Court in Calderon indicated that only two exceptions apply to the rule that the final judgment in a habeas case may not be reopened by a recall of the mandate unless the demanding standard that applies is met. One exception is that the mandate may be recalled to correct a mere clerical error in the judgment. Id. at 557,
D.
Calderon’s lessons about whether and when an appellate court’s power to recall a mandate may be used in habeas cases apply with as much force to the question of whether and when a trial court’s
The Supreme Court emphasized in Calderon “our enduring respect” for a state’s interest in the finality of a judgment that has survived review within the state system, and it stressed that finality of judgments is essential to the proper functioning of the criminal justice system and to preservation of the federal balance. Calderon,
Two differences between
The other difference between
For all of these reasons, a
To a petitioner it does not matter whether he gets the final judgment against him reopened through a mandate recall or through a
We conclude that those рrinciples which were discussed, and those restrictions which were set out, by the Supreme Court in Calderon apply to attempts to reopen final judgments under
Of course, if the grounds of relief stated in the
Because the Calderon reasoning does apply to
One circumstance is where the final judgment is recalled or reopened to correct clerical errors in the judgment itself. As the Supreme Court explained, “[t]he State can have little interest, based on reliance or other grounds, in preserving a mandate not in accordance with the actual decision rendered by the court.” Id. at 557,
The other circumstance in which a petitioner will be able to file a
A State’s interest in the finality of a judgment denying federal habeas corpus relief is not compelling if that judgment would not have been obtained but for fraud that its agents perpetrated upon the federal court.
In the HazeV-Atlas case the Hartford Company had been unsuccessful in its efforts to obtain a patent for a particular way of pouring glass into molds, called the “gob feeding” method. Its application faced “apparently insurmountable Patent Office opposition.” Hazel-Atlas, 322 U.S.
The phony article was published, and it had the intended effect. After the article was pointed out to the Patent Office, it issued Hartford a patent for the process. Hartford then filed a patent infringement suit against Hazel-Atlas, which was using that method to produce glass. Hartford did not emphasize the bogus article to the district court, and that court ruled against it. Id. at 241,
Despite Hartford’s payment of hush money to the national union leader who had signed the phony article, the fraud was ultimately discovered years after the judgment that it had been used to procure had become final (finality of judgment being defined by the term rule, in those days). The court of appeals refused to set aside its judgment in favor of Hartford, but the Supreme Court reversed. After recounting “this sordid story,” Id. at 243,
The Supreme Court explained in Hazel-Atlas that, “[t]his is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury,” but instead was “a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.” Id. at 245-46,
That case is the example the Supreme Court gave in Calderon of the kind of fraud which justifies upsetting the finality interests that arise when a State criminal judgment has been left standing after a full round of federal habеas review. Calderon,
The dissent’s functional inquiry, as we understand it, is adopted from the First
Nodding slightly to that inevitable consequence, the dissent drops a footnote to assure us that it would emphasize to district courts that when applying
Special caution is difficult to define and impossible to police in the fuzzy area of debating whether the factual predicate of a motion “deals primarily” with the constitutionality of the underlying judgment, or “deals primarily” with some irregularity or defect in the previous judgment denying relief from that earlier judgment. The same is true about “special caution” in determining how to exercise the broad discretion that district courts are given to decide whether to set aside judgments on such grounds as “mistake, inadvertence, surprise, or excusable neglect,”
In sum, the Supreme Court had good reasons for recognizing in Calderon that the nature of habeas cases and the critical importance of the finality and comity interests they affect require special rules for motions to recall the mandate in them, and
Y.
We now apply the lessons we have derived from Calderon, along with the two exceptions that decision recognized, to the two habeas cases remaining before us.
A.
Gonzalez does not contend that there was any clerical error in the final judgment denying him federal habeas relief, or that fraud was used to obtain that judgment. His sole contention is that the judgment was wrong, because the subsequently released decision in Artuz v. Bennett,
Gonzalez’s
B.
Mobley contends that the fraud exception applies to permit his
At the sentence stage of the trial (actually the retrial), Mobley put in evidence through the testimony of one of his attorneys that Mobley had offered to plead guilty to any crime with any sentence, so long as the sentence was not death. How that evidence is mitigating is not clear, but the theory may have been that the offer reflected well on Mobley because it demonstrated a willingness to accept some punishment for the cold-blooded murder he had committed.
To Mobley’s evidence that he had offered to plead guilty, the State responded with the testimony of former prosecutor Fuller, who explained to the jury why he had rejected Mobley’s plea offer. The Georgia Supreme Court had indicated earlier in the interlocutory appeal in the case that if Mobley’s plea offer came into evidence, the reasons that Fuller rejected the offer could come in as well. See Mobley v. State,
The transcript of the sentence stage shows Fuller did not testify that the victim’s family was firm in wanting a death sentence, and he never told the jury that the family’s feelings were a material consideration in his decision to seek death. Instead, he testified that “without question” the decision about the punishment to seek in a capital case “falls on the shoulders of the district attorney,” and while district attorney he had made that decision. Although Fuller generally listened to the victim’s family’s views about the penalty, their views were, in his words, only “a small percentage factor on the scale of things.” He explained that: “I want them to appreciate the fact that I make the decision. And families generally — and this family did not want to make the decision, they don’t want to come to a
When asked point blank how big a factor the family’s position was in his decision to seek a death sentence, Fuller answered that: “90, 95 percent of the decision” was “based on the evidence I see that describes and defines the defendant for me.” He testified he had concluded that the facts called for a sentence of death in the case, and although the family supported his decision to seek it they had never pressured him, and they had actually told him, “[i]t is your decision, we put our trust in you.” During cross-examination, Mobley’s counsel asked: “The Collins family, you alluded to this, they have never pushed you one way or the other in this case, is that correct?” Fuller answered: “That is correct.” He was asked: “They have always deferred to your judgment at the time as to what should be done, correct?,” to which he answered: “Yes.”
In his testimony at the sentence stage, Fuller did not simply deny that the views of the family were a significant factor in his decision to seek a death sentence, he elaborated on the more important factors that had led him to his decision. The case against Mobley for the robbery and murder of John Collins was a strong one. The evidence included a confession and the recovery of the pistol used in the killing, which Mobley had thrown out after the crime. The murder was a merciless, coldblooded, execution-style killing stemming from a well-planned robbery of a Domino’s Pizza franchise. Mobley marched Collins to the back where he forced him to get down on his knees, and while Collins was begging for his life Mobley shot him in the back of the head at close range. From those facts alone, in Fuller’s words, “it became glaringly apparent that this was a capital case and I would proceed [with it] as a capital case.” But there was more, a lot more, that cemented Fuller’s decision to insist on a death sentence.
Before the trial Fuller learned that Mobley had spoken to another inmate in a disparaging way about how Collins, while kneeling, had begged for his life. Then Fuller learned Mobley had said that he wanted to get out of jail, because “he knew where he could get a job real quick, when he got out of jail, at Domino’s Pizza because he knew there was a vacancy.” As if that were not enough, Fuller found out that Mobley had gotten himself a jailhouse tattoo of the Domino’s Pizza symbol. Fuller’s reaction: “I mean, I could not believe it, I could not believe it.”
Still, there was more. Mobley got into a confrontation with a deputy about aspirin or some similar medication, and as Fuller related it to the jury: “Mr. Mobley told the deputy that he was looking more and more like a Domino’s Pizza delivery boy.” Fuller’s reaction: “Again, I would have to say I couldn’t believe it, you know.” Finally, Fuller learned that Mobley, while he was awaiting trial, had participated in the rape of another inmate.
In all of those statements and actions of Mobley, Fuller saw: “[P]ure unadulterated meanness. It was nothing but pure unadulterated meanness in my viewpoint.” Fuller was determined to seek the death penalty “for the protection of the people of the State of Georgia.” When asked whether there was ever a point from the beginning of the case throughout the prosecution when he ever gave serious consideration or came close to not seeking the death penalty and to accepting the plea offer, Fuller answered: “Never.” When asked if he had ever questioned the deci
The closing arguments at the sentence stage of Mobley’s trial show that no one interpreted Fuller’s testimony to mean that the victim’s family had been strong for a death sentence or that their feelings had affected Fuller’s decision to seek one. The position of the victim’s family about the proper penalty in the case was never even alluded to by the prosecution during its lengthy closing argument. It was, however, brought up by the defense. During his closing argument defense counsel reminded the jury that Fuller had testified that the family had not demanded the death penalty but instead had left up to Fuller the decision about the penalty to seek. Defense counsel argued that was a reason the jury should not impose a death sentence.
Those are the facts. Here are Mobley’s allegations — and we stress that so far they are only allegations, not supported by so much as a proffered affidavit. In his
To the extent Mobley’s claim is that Fuller violated his constitutional rights by defrauding the family into giving him its support for a death sentence, the claim is without any legal basis. A defendant has no constitutional right to have the prosecutor explain the law accurately to the victim’s family, and even if such a farfetched constitutional right were created it would not be available to a petitioner for whom there is already a final judgment denying federal habeas relief.
To the extent Mobley’s claim is that Fuller’s testimony at the sentence stage about the family’s support defrauded the jury into returning a death sentence, the claim is not about fraud on the federal courts. As Judge Tjoflat explained when the case was before the panel, the fraud Mobley alleges was not committed when the case was before the federal habeas court but earlier when it was before the state courts. Mobley,
We do not mean to imply that the only defect in Mobley’s fraud theory involves the court on which the alleged fraud was perpetrated. There can be no fraud unless the falsehood is material, and here the alleged falsehood is immaterial. After all, we are talking about one minor aspect of a former prosecutor’s explanation about why he had rejected a conditional guilty plea offer of the defendant. And the support of the victim’s family for a death sentence, even if it was obtained by the prosecutor’s misrepresentation, counted for little in the prosecutor’s decision making process, a process that he explained in great detail to the jury.
The mitigating weight of a defendant’s attempt to avoid a death sentence by offering to plead guilty is so slight, if it exists at all, that even undiminished the effect would hardly register. And the only mention during closing arguments of the allegedly false part of the former prosecutor’s testimony was by defense counsel who cited that testimony as a reason for the jury not to impose a death sentence. It is no wonder that the state trial court, when considering this fraud claim, concluded that any misrepresentations or false testimony by Fuller along these lines was immaterial to the death sentence the jury returned in this case. See Mobley,
For all of these reasons, Mobley’s case does not come within shouting distance of the fraud exception outlined in the Hazel-Atlas decision, where there was “a deliberately planned and carefully executed scheme” participated in by attorneys in a federal proceeding to defraud a federal court,
VI.
In conclusion, a
Mobley’s application for a certificate of appealability is GRANTED, but the district court’s denial of his
Lazo’s application for a certificate of appealability is DENIED.
Gonzalez’s application for a certificate of appealability is GRANTED, but the district court’s denial of his
Notes
.
. Although it agrees with us that the word "the” in the statutory term "the final order” can be read in the plural, the dissent (we will use "the dissent” throughout this opinion to refer to Judge Tjoflat’s separate opinion specially concurring in part and dissenting in part) thinks it should not be read that way unless doing so would carry out the legislative intent behind the certificate of appealability requirement in
. Going back to the singular versus plural question relating to
. We qualify our description of the dissent's position with "seems to be,” because there is some inconsistency about this subject in its opinion. Part III.A of the dissenting opinion clearly asserts the position that the
. In Part IV of its opinion the dissent recasts our conclusions and the rules we announce. We reject that recasting, and we remind the reader that in any decision of this Court the law of the circuit is contained in the majority opinion, not in the dissenting opinion’s description of it.
. We offer this explanation about the way we are proceeding. We realize, of course, that our procedure for dealing with the cases we have before us does not follow the usual course in these matters. Ordinarily, whether to grant a certificate of appealability in a case is decided first, and if a certificate is granted full briefing on the issues specified in the certificate follows. In this en banc case, we have collapsed the briefing on the certificate of appealability issues with that about the proper scope of
. The habeas rules, too, will soon explicitly recognize the obvious point that the civil rules do not apply to habeas proceedings to the extent that they are inconsistent with any statutory provision. The Judicial Conference has approved and recommended to the Supreme Court a revision of the habeas rules, which includes the following restyled
.
for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ... misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
The motion must be made "within a reasonable time,” and for reasons (1), (2), and (3), "not more than one year after the judgment, order, or proceeding was entered or taken.”
. The Supreme Court drew the actual innocence standard it announced for sua sponte mandate recalls from its decision in Schlup v. Delo,
. In Castro v. United States, - U.S. -,
That is not what we have here. None of the prisoners before us had his initial filing re-characterized by the district court. All their initial pleadings were filed under
. Nor may a petitioner circumvent the restrictions on second or successive petitions by the simple expedient of filing an independent action aimed at the judgment denying habeas relief. See generally
. The fuzziness of the test the dissent would hаve us adopt is illustrated by the inconsistent way the dissent apparently would apply it in two materially identical circumstances. The dissent discusses our pre-AEDPA decision of Lindsey v. Thigpen,
. The only circumstance in which Congress permitted a final habeas judgment to be reopened because of a new decision is where the petitioner asserts for the first time a claim that "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
This case sharply illustrates the difference between how our approach treats the restrictions contained in
By contrast, under the dissent's position,
. The defense's mitigation theory was not that Mobley's offer to plead showed any kind of remorse. We know that, because the defense was adamant throughout the sentence hearing that Mobley was a sociopath who could not feel remorse, and for that reason he should not be faulted for acting in a remorseless way during and after the murder.
. We agree with those statements from Judge Tjoflat's dissenting opinion in Mobley that we quote in this opinion, but beyond that we do not adopt his opinion in that case or its approach.
. Mobley did raise in his federal habeas petition a claim that Fuller had lied during his state trial testimony but that was a different claim about a different part of Fuller’s testimony, and that claim was held to be procedurally barred anyway, without any decision about its merits. Mobley v. Head,
. We probably should add that the jury was presented with evidence that Mobley had committed six other robberies in the three weeks between his murder of Collins and his arrest for it.
. The State of Georgia contends that even if there had been fraud it is not responsible because Fuller was no longer a prosecutor at the time he testified; he was then a state court judge. We need not decide how the fact that Fuller was not an attorney for the state in the proceeding impacts the analysis, because it does not matter. Even if he had been the district attorney at the time of his testimony in the sentence proceeding, that would not change our conclusion.
. There is some confusion about whether Mobley filed, or merely lodged with this Court without subsequently filing, an application for a certificate to permit him to file a successive habeas petition. If he did file that application, it is denied, because it fails to fit within the requirements of
Concurrence Opinion
specially concurring in part’and dissenting in part:
In these appeals, we are called upon to clarify the interaction of two laws which Congress has approved:
The Supreme Court’s decision in Calderon, I think, does not control the present cases. In Calderon, the Court did not deal with
I suppose that the sharp-edged formulation today’s Court makes of
If I were the policy-maker for the nation, I might embrace today’s Court’s formulation. (Perhaps Congress will too.) But, of course, federal judges are not the rightful makers of policy in this sphere. And we cannot properly favor what is convenient over what is true. And what, to me, is truly required jurisprudentially in a case like this one is the approach that gives both of the laws Congress has approved their fullest possible force. Moreover, I am confident that judges have the ability to apply the law as Judge Tjoflat
I know of the frustrations caused by the lack of finality in litigation. I personally am keen for morе finality in the criminal justice process. But today, the finality that we as judges can rightly impose on the criminal process is no more finality than
Concurrence Opinion
specially concurring in part and dissenting in part.
I.
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence [the party] could not have ... discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Additionally, under what has been labeled
Today, the majority today holds that, with the exception of the ground provided by
I respectfully dissent from these two holdings because the rationale supporting them is fundamentally flawed. Aside from this, I am convinced that the implementation of the majority’s holdings will unnecessarily add to the workload of this court.
This opinion is organized as follows. Part II addresses the majority’s first holding, which treats all
II.
By treating all
A.
At common law, “the term of court was decisive in determining whether or not the district court had power over its final judgments and decrees.” Note, History and Interpretation of Federal
Each of the ancient writs permitted relief in different scenarios. Audita querela, a common law writ, typically “afford[ed] relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2867, at 394 (Civil 2d ed.1995). Coram nobis and co-ram vobis, both equitable in nature, sought to remedy “mistakes of fact, not appearing on the face of the record, and but for which the judgment would not have been entered.” Commentary, supra, at 942-43. If the judgment under attack issued from the King’s Bench, the former writ was appropriate; if it issued from any other court, the latter was used. Black’s Law Dictionary 338 (7th ed.1999). A bill of review in equity would lie upon any of four grounds: (1) “error of law apparent upon the record,” (2) “newly discovered evidence,” (3) “the occurrence of new matter or new facts after the entry of the decree which make its enforcement inequitable,” or (4) “fraud in procuring the decree.” James Wm. Moore & Elizabeth B.A. Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 677-79 (1946).
Despite their formal distinctions, however, the ancient writs as a practical matter had confusing and “uncertain boundaries.” Klapprott v. United States,
The enactment of the Federal Rules of Civil Procedure in 1938 was, in part, an attempt to eliminate the confusion caused by the inconsistent application of these ancient writs. In its original form,
On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 or the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.
Moore, supra, §
This problem did not go unnoticed. In 1946,
th[e] rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title28, U.S.C., § 1655 , or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independеnt action.
The drafters of modern
1.Rule 60(b) motions. A party may seek relief from a judgment upon any ground enumerated in the Rule.
2. Independent Actions. A party may initiate a new action to seek relief from a judgment. It may bring this action in any district court, not just the one that rendered the judgment from which relief is sought. 11 Wright, Miller & Kane, supra, § 2851, at 229.
3. Statutory procedures. A court may grant relief from a judgment without resort toRule 60(b) as authorized by statute.8
4. Inherent powers.Rule 60(b) expressly permits a district court “to set aside a judgment for fraud upon the court.”
The best explanation of the interrelationship of
The second procedure contemplated byRule 60(b) is an independent action to obtain relief from a judgment, order, or proceeding. The ... saving clause specifically provides that 60(b) does not limit the power of the court to entertain such an action. It is important to emphasize “independent action,” as used in this clause, was meant to refer to a procedure which has been historically know simply as an independent action in equity to obtain relief from a judgment. This action should under no circumstances be confused with ancillary common law and equitable remedies or their modern substitute, the 60(b) motion.
When a court grants relief from a judgment or decree by a new trial or rehearing, or by one of the ancillary common law or equitable remedies or their modern substitute, a motion, it is exercising a supervisory power of that court over its judgment; but the original bill, or independent action, to impeach for fraud, accident, mistake or other equitable ground is founded upon an independent and substantive equitable jurisdiction.
If the litigant’s “right to make a [
B.
In part because it failed to appreciate this history, the majority overlooks the important distinctions between the motions and independent actions
As applied in the habeas context, the “factual predicate [of a
An SSHP is a different species. Like a first petition for a writ of habeas corpus, an SSHP is a collateral attack upon the applicant’s conviction or sentence. After AEDPA, an applicant may seek SSHP relief by asserting “(1) claims that ‘rel[y] on a new rule of constitutional law,’ and (2) claims that rely on a rule of constitutional law and are based on evidence that ‘could not have been discovered previously through the exercise of due diligence’ and would establish the petitioner’s factual innocence.” Mobley v. Head,
[n]either of [the] types of claims [cognizable undersection 2244(b)(2) ] challenges the district court’s previous denial of relief under28 U.S.C. § 2254 . Instead, each alleges that the contextual circumstances of the proceeding have changed so much that the petitioner’s conviction or sentence now runs afoul of the Constitution.
Mobley,
Thus, “the difference [between an SSHP and a
like all habeas corpus petitions, is meant to remedy constitutional violations (albeit ones which arise out of facts discovered or laws evolved after an initial ha-beas corpus proceeding), while aRule 60(b) motion is designed to cure procedural violations in an earlier proceeding — here, a habeas corpus proceeding — that raise questions about that proceeding’s integrity.
Mobley,
C.
In defense of its holding that all
In that case, the petitioner moved the court of appeals to recall its mandate denying habeas relief. Calderon,
The Supreme Court reversed. Acknowledging that in some circumstances a court of appeals has “inherent power to recall [its] mandate[ ],” id. at 549,
In a§ 2254 case, a prisoner’s motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of§ 2244(b) . Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application,§ 2244(b)(1) , or the bar against litigation of claims not presented in a prior application,§ 2244(b)(2) . If the court grants such a motion, its action is subject to AEDPA irrespective of whether the motion is based on old claims (in which case§ 2244(b)(1) would apply) or new ones (in which case§ 2244(b)(2) would apply).
Id. at 553,
I concur in the majority’s view that once a court of appeals issues its mandate in a habeas case, a petitioner’s Calderon-type motion to recall the mandate, which asks the court of appeals to entertain a new claim or revisit an old claim, constitutes an SSHP as defined by AEDPA.
Calderon does not speak to the authority of the district court to grant a habeas petitioner relief under
By recalling its mandate, the court of appeals may reexamine its decision. Calderon permits the court to recall its mandate for such purpose if it does so on its own initiative. The fact that Calderon bars the court from recalling its mandate (in a habeas case) on the petitioner’s motion does not alter the fact that, once the mandate is recalled, the court is in the same position it occupied before the mandate issued. When considering a motion to recall the mandate similar to that addressed in Calderon, the court of appeals is not entertaining a collateral attack that questions the integrity or legitimacy of its judgment. See supra note 11. Instead, drawing on the same record it had before it when it rendered its decision, the court is simply reconsidering whether to adhere to its decision or come down another way.
The district courts lack the broad power the courts of appeals possess to recall their judgments. If it does not receive a motion filed pursuant to Rules 50(b), 52(b), 59(a) or (e), or act sum sponte under
What the foregoing discussion establishes, I believe, is that a legally significant analogy cannot be drawn between a motion to recall an appellate mandate and a motion or independent action brought under
D.
Having distinguished between SSHPs and
We do not write on a blank slate here, as virtually all of our sister circuits have addressed this issue.
Most of our sister circuits, however, have come down somewhere in the middle, holding that district courts may recharac-terize
The majority today places our court near the middle ground. But rather than adopting a flexible rule that would permit district courts to honor AEDPA’s aims without punishing true
The majority is somehow convinced that the only way a habeas petitioner who seeks
Rather than follow the majority’s approach, we should recognize that
The inquiry must proceed case by case. The [district] court must examine the factual predicate set forth in support of a particular motion. When the motion’s factual predicate deals primarily with the constitutionality of the underlying state [or federal] conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion’s factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of aRule 60(b) motion, and such a motion should be treated within the usual confines ofRule 60(b) .
Rodwell,
[I]f a petitioner[ ] who already has been denied federal habeas corpus relief files a motion that presents new constitutional claims to the district court, this motion should be considered a “second or successive” habeas corpus petition— even if the petitioner calls it a Rule 60(b) motion. Likewise, if the petitioner [br]ought a “second or successive” habe-as corpus petition to raise questions about the integrity of a prior habeas corpus proceeding ... then the court should review the filing under the standards forRule 60(b) motions and not under the strictures of 28 U.S.C. 2244(b)(2).
Although “this test [would not] operate with mathematical precision,” Rodwell,
III.
Pursuant to
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding undersection 2255 .22
A.
Courts of appeals have jurisdiction “of appeals from all final decisions of the district courts....”
Although our appellate jurisdiction extends to all final decisions,
In habeas cases involving more than one appealable order, such as orders disposing of
I agree with the majority’s statement that the word “the” can sometimes be read in the plural. In certain circumstances, singular terms can be construed in the plural. See
B.
I respectfully decline to join in the majority’s reliance on the decisions of our sister circuits for the proposition that the COA requirement of
Langford v. Day,
The court of appeals interpreted its pre-AEDPA precedent, Lynch v. Blodgett,
The Ninth Circuit’s decision in Lynch, the basis for Langford’s result, relied on this circuit’s decision in Lindsey v. Thigpen, 875 F.2d 1509, 1512 (11th Cir.1989) (per curiam). Lindsey, however, is inap-posite to Langford and to the three cases we decide today. First, in Lindsey, a pre-AEDPA case, we had no opportunity to consider AEDPA’s SSHP restrictions. Second, the petitioner in Lindsey did not file a true
In Langford,
IV.
Before suggesting the dispositions the court should make in these consolidated
(A) ... the claim [set forth in his motion] relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.
Thus, the majority separates
With respect to the
In examining his motion for a constitutional claim, the court will find none. Why? Because the petitioner has filed a true
The bottom line of this discussion is twofold. First, the majority completely eviscerates
I further explain this second consequence of the majority opinion by examining four hypothetical scenarios. These scenarios consider how a court’s decision
First, a
Second, because a true
I now turn to the four hypothetical scenarios, each involving a true
In the first scenario, the petitioner obtained a COA to appeal the denial of habe-as relief, and we affirmed on appeal. The petitioner then moved the district court pursuant to
In the second scenario, the petitioner sought to appeal the district court’s order denying habeas relief but failed to obtain a
In the third scenario, this court granted a COA, and while the petitioner’s appeal was pending, the petitioner moved the district court to set aside its decision under
In the fourth scenario, the district cоurt denied habeas relief, and the petitioner did not appeal. After the thirty-day appeal period expired, the petitioner filed a
In sum, these four scenarios indicate that under the majority’s
V.
Having expressed my disagreement with the majority’s principal holdings, I turn to the appeals before us, Lazo, Gonzalez, and Mobley.
A.
On January 2, 2002, after Emile Lazo had lost his first
his conviction is void because the district court lacked subject matter jurisdiction to hear his case and impose a sentencebecause the indictment was insufficient[,] the grand jury failed to allege an interference with interstate and/or foreign commerce under 21 U.S.C. § 801 , failed to give him “notice” as to the penalty against which he must defend in violation of the Sixth Amendment, and failed to give jurisdiction to the sentencing court to impose his sentence under21 U.S.C. § 841(b)(1)(A) by failing to establish an interference with interstate commerce.
Id. at 573. On March 1, 2002, the district court denied the motion without explanation — and without indicating whether it was treating Lazo’s filing as a true
We thereafter noted probable jurisdiction and the appeal was briefed. Addressing the threshold question the appeal posed — whether the motion Lazo filed in the district court should be treated as a second or successive motion under
I agree with the panel that Lazo’s
B.
On September 9, 1998, the district court entered a final order dismissing Aurelio Gonzalez’s
On August 2, 2001, Gonzalez, proceeding pro se, “filed a
Gonzalez then applied to this court for a COA. A panel of the court acknowledged that Gonzalez’s motion is a true
(1) the erroneous judgment had not been executed; (2) there was only minimal delay between the entry of the judgment the motion sought to set aside and the filing of the motion; and (3) there was a close connection between the case and the case that gave rise to the intervening decision upon which the motion was based.
Id. at 1313.
We review district court denials of
I disagree with the panel’s decision, notwithstanding that it has been vacated by the order taking this case en banc.' I disagree because it is hornbook law that a district court abuses its discretion when it misapplies the law in reaching its decision. Here, the district court misapplied the law; it erroneously denied the motion because it thought it lacked jurisdiction to hear it. I would therefore vacate the district court’s ruling and remand the case with the instruction that the court consider the motion on its merits.
The majority, however, issues a COA
Gonzalez does not contend that there was any clerical error in the final judgment denying him federal habeas relief, or that fraud was used to obtain that judgment. His sole contention is that the [district court’s] judgment [denying habeas relief) was wrong, because the subsequently released [Supreme Court] decision in [Artuz ] shows that the “properly filed” language of§ 2244(d)(2) was misinterpreted to deny him relief. He is attacking the merits of that decision — the term “merits” referring to the correctness of the decision itself even though the ground of this particular decision was the statute of limitations, an affirmative defense.
Gonzalez’sRule 60(b) motion is an attempt to relitigate a claim that has already been presented in a prior application [for a COA] and rejected, which means it must be dismissed under§ 2244(b)(1) .... An error of law, even one demonstrated by an intervening decision, does not fit either of the extra-statutory exceptions to the rule we have borrowed from Calderon and announced today.
Maj. op. at 1281.
What the majority overlooks is that Gonzalez’s
The “mandate rule,” as it is known, is nothing more than a specific application of the “law of the case” doctrine. This doctrine stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.
Piambino v. Bailey,
In sum, I disagree with the majority’s decision that a COA is required to review the district court’s refusal to entertain Gonzalez’s motion. I also dissent from its disposition, which is that the district court’s ruling stands unreviewable. The message the majority is sending to the district judges of this circuit is that they can deny with impunity a
C.
In Mobley, the majority grants a COA, reviews the petitioner’s collateral motion as if he had filed it under
.I join the majority in affirming the district court's judgment in Mobley. I specially concur in the majority's judgment in Lazo. The majority refuses to grant Lazo a certificate of appealability and therefore effectively affirms the district court’s judgment denying his
. Travelers Indem. Co. v. Gore,
. The majority also recognizes a second exception. The district courts retain the authority under
. The majority's decision restricts the ability of prisoners to file
. Both state and federal prisoners must obtain leave of the appropriate court of appeals before filing second or successive collateral attacks upon their convictions or sentences. A court of appeals may only grant such leave to state prisoners who satisfy the criteria of
(b)(1) A claim presented in a second or successive habeas corpus application undersection 2254 that was presented in a prior application shall be dismissed.
(b)(2) A claim presented in a second or successive habeas corpus application undersection 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense.
A second or successive motion must be certified as provided insection 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Throughout this opinion, I analyze the effects of the majority's holdings on litigation involving
. Here and throughout this opinion, the phrase "second or successive habeas petitions” and the abbreviation "SSHP” refer also to second or successive motions under
. The minor amendments made since 1946 are of no concern to us here.
. There are at least three examples in this category. First,
. In Bonner v. City of Prichard,
. The next day, he moved the district court pursuant to
. I assume here that the majority is only concerned with motions to reconsider an appellate decision after the mandate issues. Despite its treatment of motions to recall the mandate, the majority opinion does not explicitly interpret Calderon to treat timely petitions for rehearing as SSHPs. I believe this discrepancy might be explained by the fact that a habeas petitioner’s petition for rehearing must be filed prior to the court’s issuance of its mandate, while the court can still revisit its decision. See
Furthermore, I read Calderon to apply only to motions to recall the mandate that ask the court of appeals to entertain new constitutional challenges to a petitioner's conviction or sentence or revisit old ones. I disagree with the majority insofar as it reads Calderon more broadly. If the motion to recall the mandate challenged the integrity, rather than correctness, of the appellate decision, that motion would, in my view, fall beyond Calderon's scope. I must confess, however, that such a motion is difficult to imagine.
. In a case in which, after the court of appeals mandate issued, the Supreme Court handed down a new rule of constitutional law made retroactive to cases on collateral review that would have required the court of appeals to decide a claim in favor of, rather than against, the petitioner, query whether AEDPA, as interpreted in Calderon, would permit the court to grant the petitioner's motion to recall the mandate (on the basis of the new rule) or require the court to deny the motion under
. In denying the motion, although the law would not require it to do so, the court could call the petitioner’s attention to
. According to the majority,
Calderon's lessons about whether and when an appellate court’s power to recall a mandate may be used in habeas cases apply with as much force to the question of whether and when a trial court'sRule 60(b) authority to reopen a final judgment may be used in a habeas case. Recalling the mandate to reopen and alter the final judgment in a habeas case is the closest thing on the appellate level to the use ofRule 60(b) to reopen and change a final judgment at the trial level.
Maj. op. at 1275.
. After it recеives a motion filed under one or more of these rules within this 10-day time limit, the court obviously retains jurisdiction beyond the 10 days to rule on the motion. A final judgment that contains injunctive relief may give the court jurisdiction to enforce such relief. Such retention of jurisdiction is not implicated in any of the cases now before us.
. If the district court judgment the court of appeals affirms is subject to collateral attack, the attack must be mounted in the district court via
. I am primarily concerned with the post-AEDPA cases, but also treat the pre-AEDPA cases from circuits that have not since ruled on the issue. For a collection of the pre-AEDPA cases, see 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 1533 n. 16 (4th ed.2001).
. Although other courts have characterized the Second Circuit’s position as absolute, see, e.g., Rodwell,
. The Third and Fifth Circuits may also fall within this category, but their precedent is unclear. See United States v. Edwards, 309 F.3d 110, 113 (3d Cir.2002) (holding without extended discussion that even if the district court should have construed the petitioner’s motion under
. I would also reemphasize that district courts should treat
. In discussing how a district court should treat true
. The petitioner must first seek a COA from the district court. 11th Cir. R. 22-l(a). If the district court denies a COA, the petitioner may seek one from our court.
if the district court denies a[COA], and at the time of docketing the appeal in [ourcourt] the [petitioner] has not filed a renewed application for a [COA] in [our court], the application denied by the district court ... shall be construed by [our court] as a renewed application for a [COA].
llth Cir. R. 22-1 (c)(2).
. This point is discussed at length in Part IV, infra.
. The majority also relies on Kellogg v. Strack,
. While Langford is not entirely clear on this issue, I assume that AEDPA’s effective date fell after the petitioner filed his motion but before he filed his notice of appeal. The Supreme Court had not settled the question whether AEDPA's COA requirement applied in this circumstance until after 1998, the year of the Langford decision. See Slack v. McDaniel,
. This conclusion is not, as the majority suggests, in tension with my observation that
.We rely on the Ninth Circuit's view as to the content of the petitioner's claims. Obviously, the record of that case is not before us.
. Suppose the petitioner does not seek
. Nor could a true
. In writing
.I note here that the petitioner's respondent (the State) does not have to obtain a COA as a condition precedent to appealing a district court’s order setting aside the final order (that denied the рetitioner habeas relief). AEDPA extends the COA requirement only to petitioners, not to respondents. Section 103 of AED-PA expressly amended the Federal Rules of Appellate Procedure to guarantee this result. See AEDPA of 1996, Pub.L. No. 104-132, 110 Stat. 1214 § 103;
. To obtain relief in the district court, therefore, the petitioner must first obtain leave of this court pursuant to
. The district court has jurisdiction to consider the
. This scenario is not likely to occur. In fact, in over 28 years on this court and its predecessor Fifth Circuit, I have never encountered it.
. Lazo had 60 days from the date of the district court's decision to file a notice of appeal. See
.
[a] second or successive motion must be certified as provided insection 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The reference to
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
. Relying upon Slack v. McDaniel,
.
.In deciding whether to issue Gonzalez a COA, the majority looks to his habeas petition (which the district court had denied) to see whether he has made the
. The mandate rule and the law of the case doctrine are for our purposes interchangeable. See Piambino v. Bailey,
. Another way of looking at this situation is to treat the district court's final decision deny
.The majority misapprehends this point to mean that any motion assеrting an intervening change in the law is a true
. Had the district court granted Gonzalez the relief he seeks, the State could have appealed the decision without obtaining a COA. See supra note 31.
. The district court read Felker as requiring the district courts of this circuit to treat all
. I read the majority as perhaps reaching alternative holdings: (1) if reasonable jurists could construe Mobley's motion as having been filed under
. I also concur in the court's decision to deny Mobley’s motion to recall the mandate in Mobley v. Head, No. 00-13980, and Mobley’s motion to stay his execution.
Concurrence Opinion
specially concurring in part and dissenting in part, in which WILSON, Circuit Judge, joins:
I agree completely with Judge Tjoflat’s thorough opinion with the exception of his resolution of Mobley’s claim. I agree with Judge Tjoflat that the district court denied Mobley’s motion on the basis of an improper interpretation of Felker v. Turpin,
. As stated in Collins v. Seaboard C.R. Co.,
A discretionary decision that falls within permitted bounds, but is based on false premises, raises the question on review as to whether the trial court would have come to the same conclusion using proper premises. That it could have does not satisfy the inquiry as to whether it would have reached the same result. The affirmance of a discretionary decision that is based on an improper view of the facts or the law merely reflects the appellate court’s exercise of discretion that rightfully belongs to the trial court. The proper role of appellate review permits a remand for further proceedings when a discretionary decision has been made on false premises.
Id.,