Gonzalez v. Secretary for the Department of Corrections

Stephen appeal Mobley, tion. When a non-frivolous involves A. Petitioner- compel the denial of a motion to Appellant, arbitra- tion, it litigation makes little sense for the v. to continue the district court while the Schofield, Warden, Derrick Georgia appeal pending. Diagnostic and Classification

Accordingly, proper course Center, Respondent-Appellee. obtaining stay this context follows. 02-12054, Nos. 02-12483 and 02-14224. a litigant stay When files a motion to litigation the district court pending an United States Court Appeals, appeal from the denial of a motion to Eleventh Circuit. arbitration, compel court April stay litigation should long so as the appeal is non-frivolous. If the district stay,

court denies the motion to then the

appellant may file a motion stay this If

Court. this Court determines that the non-frivolous,

appeal then this Court stay litigation

should in the district pending appeal

court of the denial of compel

the motion to arbitration.

Following process, this we conclude that frivolous, appeal

this is not according-

ly grant we stay proceedings

in the district pending compel

the denial of the motion to arbitra- deny

tion. We as moot request argument

oral stay. motion to GONZALEZ,

Aurelio O. Petitioner-

Appellant,

v.

SECRETARY THE FOR DEPART CORRECTIONS,

MENT OF James

Crosby, Secretary, Respondent-Appel

lee. Lazo, Petitioner-Appellant,

Emil America,

United States of

Respondent-Appellee. sought have to circumvent 2255 movants on second round AEDPA’s restrictions One of

collateral attacks federal courts. used the at- popular the most vehicles tempted Fed.R.Civ.P. end-runs prior judgment requesting Rashkind, Fed. De- Asst. Public Paul M. set Williams, denying relief be aside. fender, Fed. Public Kathleen M. FL, Defender, Miami, for Gonzalez. involved eases Given number Tallahassee, Dolgin, Kaye Cassandra issues, we entered importance Miami, FL, for FL, Taylor, Paulette R. rehearing en granting hearing an or order Crosby. answer in three cases in order to banc David 0. Markus Hirsch and Milton have arisen questions some common FL, Miami, for Lazo. (Court-Appointed), motions about use of to Lauderdale, Rosenthal, Fort Lynn Dena judgments that denied obtain relief from Schultz, Bowen, FL, R. Dawn Lisa Anne (in § 2254 two of the cases before relief FL, Rubio, Miami, for U.S.

T. (in cases). us), § of the or 2255 relief one Steel, Firm, P.C., Law The Steel Brian Sec’y Dep’t of Corr., 326 Gonzalez v. GA, Atlanta, Siemon, for Mob- F. August (11th Cir.2003). Specifically, F.3d 1175 we ley. appel- of the would-be asked each three Burton, Attaway of Georgia State argue,

Beth lants brief and insofar as relat- GA, Atlanta, Dept., Law Schofield. 1) the certificate of ed his case: whether

appealability requirement contained 28 2253(c) attempted applies § to an U.S.C. appeal the denial of Rule relief § 2254 or 2255 2) relief; so, if whether certificate case; appealability should be in his issued EDMONDSON, Judge, Before Chief 3) govern what standards should TJOFLAT, ANDERSON, BIRCH, and judgments motions aimed at CARNES, DUBINA, BLACK, is, proceedings, § 2255 2254 or BARKETT, HULL, MARCUS and 4) granted; they when and was should WILSON, Judges*. Circuit it an abuse discretion for deny court to the Rule CARNES, Judge: Circuit case? The and Effective Death Antiterrorism 104-132, Act, Penalty Pub.L. No. 110 Stat. (1996), clamped down second and I. petitions by state prisoners filed begin with the facts and We relevant seeking corpus federal relief under history of procedural each of the three 2254, those filed

28 U.S.C. feder- us, in the in which sequence cases before under prisoners seeking al 28 U.S.C. panel were 2244(a)-(b), decisions orders issued §§ 2255. See 28 U.S.C. ¶ Naturally, petitioners them.

* decision, Jr., Judge Pryor William became a after this case was submitted for H. member February participate Court on he in the decision of it. did

A. that he had plead guilty offered to in re- turn for a sentence less than death. ago A at a Stephen decade retrial Mob- ley was convicted and thoughts sentenced to death first Georgia Su- preme for the subject 1991 murder of Domino’s Pizza Court on the had come dur- employee during robbery. ing armed See an earlier Mobley filed follow- State, Mobley ing v. 265 Ga. a mistrial S.E.2d due error at his first trial. (1995). State, During Mobley the sentencing phase, 262 Ga. 426 S.E.2d (1993). Mobley potential introduced mitigating Mobley Georgia asked the Su- Court, circumstance preme evidence he had offered which had the case before it plead guilty exchange primarily punish- decide a double jeopardy issue mistrial, ment other than death. arising rebuttal from the also to decide Fuller, prosecution called Andrew who had whether he could introduce evidence at the attorney prose- been the district when retrial that hе had offered to plead guilty cution began longer but no was. Fuller conditioned on not receiving pen- the death 810-11, alty. testified to the factors which had him Id. at led S.E.2d 152-53. penalty. could, seek the death He said those Court said that he but that if he factors included the actual did the circumstances State would be explain allowed to crime, Mobley’s “pure insisting unadul- its reasons for on a death sen- terated aptly meanness” which had been tence. Id. that things And is how played by a demonstrated number of his com- out at the Mobley put retrial: in evidence ments since he killed the victim in that he had plead guilty cold offered to in re- Head, 1096, Mobley death; blood. v. turn for a F.3d sentence less than (11th Cir.2001) J„ Fuller, (Tjoflat, 1097-99 prosecutor dis- the former who had re- senting). jected offer, Fuller also testified that the vic- that why testified about he family supported tim’s nothing his decision to seek had decided less than death would a death sentence. Id. at 1098-99. The do. family’s feelings

victim’s about penalty When the case it returned to on direct had not carried much weight in deci- his retrial, appeal Georgia after the Su- sion; jury he told the that “95 percent of preme Court an opportunity had to see the the decision made based on [was] the evi- problems that had sprung from the eviden- dence that [he saw] describe[d] the defen- tiary box that its in ruling the first dant for Id. at 1099. [him].” opened. had The per- Court realized that

Among Mobley the issues in mitting testimony raised plea about a defendant’s direct appeal was a contention that Fuller offer and the rejected reasons had been permitted testify should not have been likely attorneys lead to on both about the factors that influenced him to testifying put sides and could also highly seek a death inflammatory sentence the case. Mob jury. matters before the 298-99, ley, mistake, 265 Ga. at 455 S.E.2d at 69-70. Facing up to its an- Court Georgia Supreme rejected The Court that nounced that evidence of a defendant’s contention, after concluding that Fuller’s guilty plea rejec- conditional offer and its testimony why about he had turned down tion would not thereafter be allowed Mobley’s plea offer Georgia capital was relevant since Mobley, cases. 265 Ga. at (“[W]e Mobley put 300, had in evidence that he had at S.E.2d now hold that Court, however, made the offer. Id. plead guilty offers defendants to had thoughts permitting testimony second prosecutors regarding about their capital defendant to introduce evidence rejecting reasons for such offers are no 60(b).” The admissible”)- to Fed.R.Civ.P. to Pursuant It was too late

longer case, Mobley’s from is the one evidentiary sought he box close that Georgia Supreme 26, Court course, May but on district court had entered testimony con- that neither decided 2000, petition. § 2254 denying his habeas rejection nor and its plea offer cerning the Mobley’s Rule district court denied retrial happened at the anything else 3, in an order August It affirmed error. reversible had been concedes, more- stating “petitioner sentence. and death Mobley’s conviction over, is correct respondent 301, at 71. 455 S.E.2d Id. to the current asserting pursuant Thereafter, habeas Mobley sought state Circuit, in the Eleventh of the law state denied, Turpin see was relief which or treated as a second this motion must be 635, 502 S.E.2d Mobley, 269 Ga. The district habeas action.” successive (1998), habeas relief which and federal decision thought prior that our 26, May court on by the district denied (11th 101 F.3d 657 Cir. Turpin, Felker v. affirmed, see Mob we a denial which 1996), motions required that all (11th Cir.2001), Head, ley v. second or cases be treated as habeas denied, cert. petitions. successive (2002) (mem.); our man- 153 L.Ed.2d 853 Mobley’s Rule Because it treated issued on June date was motion as a second 16, 2002, was two-and-a- July On compelled court was petition, the district Su- the United States half weeks after Mobley is that reject it. The reason in his denied certiorari preme Court an order from this Court had not obtained of federal from the denial peal court to consider a permitting “Extraordinary Mo- relief, an Mobley filed was petition, as he second or successive in state Trial as to Sentence” tion for New 2244(b)(3)(A); by § he required a new sentenc- to do sought That motion court. Mobley pres- upon could ing stage ground trial where obtain one since the could not testify that the mother to ent the victim’s sought fit neither of which relief was prosecutor’s family acquiesced had in that are set out two circumstances only be- penalty decision to seek the death 2244(b)(2). application filed an Mobley that a sen- they had been unaware cause that he appealability so for certificate option. was an parole tence of life without denial of his Rule appeal could Mobley’s mo- trial court denied The state motion, it. and the district court denied testimony tion, if the reasoning that even 5, 2002, Mobley came to this August On presented to a mother of the victim’s were following filings: appli- Court with reasonably be conclud- jury, “it [could] 2253(c) a certificate of cation under of the victim’s fami- opposition ed that the appeal that he could appealability so probably ... would ly penalty to the death district court’s denial of his Mobley, verdict.” See produce different motion; mandate Mobley applied to the a motion to recall the 306 F.3d at 1099. 9, for a discretion- 2002 in Georgia Supreme Court had issued on June this Court motion, ary of the denial of his but affirmance of the de- conjunction with our His exe- denied. Id. application was and, Mobley’s petition; nial of first habeas 5, August cution was set for stay Mobley, of execution. a motion for a day, a at 1099-1100. That same 2002, 2, Mobley filed in the August On stay- this entered an order panel of Court Stay of court a “Motion for federal district Head, No. Mobley v. ing the execution. Judgment Execution for Relief from 2002) 5, (August (per 02-14224 Barkett could be raised in a Rule Wilson, JJ., by quorum). 60(b)(3) motion, Mobley’s but alleged claim court, at most a fraud on the state not one 18, 2002, September panel On of this on the federal court. Id. at 1105-06. Un- Court, judge dissenting, with one extended Judge Tjoflat’s der view of the proper stay that it previously of execution had relationship of Rule and the restric- Head, granted. Mobley v. 306 F.3d 1096 tions on (11th Cir.2002). second or petitions, successive panel majority be- 60(b) Mobley’s motion that in should have denying Mobley’s lieved been denied court, motion the in- correctly district court had albeit for different decision, terpreted prior our Felker but reasons gave. than that court anticipated Supreme that the Court would After Mobley granted stay Bell, soon decide Abdur’Rahman v. in light execution of the upcoming decision 1605, U.S. 152 L.Ed.2d 620 Abdur’Rahman, Court (2002) (mem.) (granting April certiorari on quashed the writ of certiorari in that case 22, 2002), all whether motions improvidently granted. Abdur’Rahman subject are applicable the restrictions Bell, petitions. second or Wanting (2002). Thereafter, L.Ed.2d 501 we voted upcoming the benefit of the decision to hear Mobley case en banc. See Abdur’Rahman, majority granted Gonzalez, 326 F.3d at 1176. Mobley stay ruling without of his applications other or motions. Tjoflat

Judge dissented from B. issuance of execution, stay and would have also appellant second would-be is Emil Mobley’s application denied: for a certifi- Lazo, who was convicted in 1991 of con- appealability; cate of his motion to recall spiracy possess with intent to distribute the mandate that had issued connection cocaine violation of 21 U.S.C. case; with our prior decision and an possession with intent to distribute co- application permission to file a second caine, 841(a)(1), in violation 21of U.S.C or successive petition, Judge and was sentenced impris- to 293 months Tjoflat Mobley thought had filed in the onment. appealed, arguing only He case, n. Mobley, see 19 below. at F.3d support the evidence was insufficient to Judge Tjoflat’s view, 1098-1107. In conviction, and in 1993 we affirmed his district panel majority court and had mis- States, conviction. See Lazo v. United decision, interpreted our Felker which he (11th Cir.2002), reh’g F.3d vacated believed did not and could not have held (11th banc, Cir.2003). en 326 F.3d 1175 In that all Rule motions are to be de- § 1996 Lazo filed a 2255 motion to vacate nied petitions. as second or successive Id. his sentence based ineffective assis- that, at suggested 1102-1105. He instead sentencing, tance of counsel at Felker, consistent with “a Rule mo- the district court denied relief. Lazo re- tion should be considered a second or quested appealability, a certificate of but corpus petition successive habeas if the the district court him denied one. See id. former seeks to assert constitutional viola- Lazo then came to this Court with an tions practical equivalent and thus is the of (internal application a appealabili- certificate of the latter.” Id. at 1104 marks omitted). ty, request A claim that and also filed a second for one the State had perpetrated a fraud on the federal court in the district court. Both efforts were unsuccessful, judgment denying order to obtain the in August 1999 we dis- § 2255 judgment denying that led to the appeal for lack of attempted Lazo’s missed relief. Id. See id. appealability. of a certificate Examining the substance of what Lazo pro Lazo filed a se January court, panel had filed in the district styled: “Mo- court motion in the district a concluded that it was not true Judgment From Col- for Relief tion motion, “the functional but instead was filed under 28 U.S.C. Proceedings lateral § a 2255 motion.” equivalent of the Federal Rules of § Pursuant that, directly It because it did not Id. was 12(b)(2) & Federal Procedure Criminal attack the district court’s 1998 (6) Procedure Rules of Civil and/or relief, denying § 2255 but instead went Final the Premise Otherwise Under judgment of conviction and after the 1991 His motion See id. Judgment Void.” grounds on a of not sentence number put brief forward accompanying and an 2255 motion. Be- raised the earlier indictment on the contention merely filing cause Lazo’s latest raised in 1991 was Lazo had been tried which of attack on his 1991 convic- grounds new the district court sub- give insufficient to sentence, panel thought it tion and of ject jurisdiction for number matter really “readily apparent that the motion is reasons, including failure to al- asserted 60(b)’s § 2255 motion in cloth- a successive foreign interstate or lege interference with result, ing.” panel Id. As a concluded commerce, provide him with and failure that the district court’s order Two penalty he faced. notice of “a final in a motion was indeed order filed, Lazo’s motion was months after 2255” within the proceeding under section summarily denied it. Lazo district court 2253(c)(1)(B), meaning requires appeal. The district then filed notice appealability before a certificate proceed granted permission court Lazo can appeal be taken. Id. 573-74. pauperis, but denied his motion forma panel appeal appealability. See id. at construed the notice of for a certificate application Lazo had filed as an to this appealability, for a certificate of Court this Court on When the case reached jurists it denied because reasonable character- appeal, panel Lazo’s notice of district find debatable whether the Lazo ized the threshold issue as whether properly court had denied Lazo’s latest required to obtain certificate failure to undisputed motion. Given his the deni- pealability before he could required by obtain the certificate Inquiring al of his motion. See id. at 573. ¶ filing 8 before what amounted to sec- motion, the into the true nature of the motion, the ond or successive panel that a 2255 motion and a explained clearly deny no choice that had but 60(b) purposes. different motion have denying motion. Id. at 574-75. After having §A a 2255 motion is aimed appealability, pan- Lazo a certificate judgment of and sentence set conviction appeal. el dismissed his Id. at 575. aside because of some constitutional viola- panel’s tion, defect, We later vacated the order so jurisdictional ground or other could the case banc. we reconsider en subject to collat- judgment makes the Gonzalez, 60(b) 326 F.3d at 1176. contrast, eral attack. In a Rule mo- having prior judgment tion is aimed at a C. § 2255 relief from a conviction appellant and sentence set aside because of some Our final would-be is Aurelio Gonzalez, in a Florida problem proceeding with or defect in the who was convicted firearm, robbery tolling provision with a and the state court for contained in 2244(d)(2).1 in years imprisonment to 99 was sentenced The district court denied appeal, not file a direct but 1992. He did Gonzalez’s motion for Rule relief on filed in state court in November of 1996he 5, 2002, March and Gonzalez filed a notice attacking a collateral motion his conviction of appeal from that denial. The district newly grounds on discovered evidence grant court declined to a certificate of guilty which he claimed showed that his appealability, but a judge of this Court in- plea unintelligent, unknowing, was granted one on the issue of whether the voluntary. The state trial court denied 9, September district court’s 1998 dismiss relief December of 1996. Gonzalez al of Gonzalez’s petition habeas was error. pealed, appellate but state court af- appeal When the authorized that cer- State, firmed. Gonzalez v. 692 So.2d 900 panel tificate reached a of this Court for (Fla. 1997) (table). 3d DCA decision, it decided the issue which 17, 1997, On June Gonzalez filed a specified had been in the certificate of petition attacking his conviction on appealability is directly related to the grounds the same he had asserted order seeking appeal. Gonzalez is Gon motion had collateral he filed state Corr., Sec’y Dep’t zalez v. for 9, 1998, September court. district On (11th Cir.2003), F.3d 1308 vacated re petition court dismissed his habeas (11th banc, hearing en 326 F.3d 1175 Cir. time-barred, ground on the that it had not 2003). seeking appeal Gonzalez is not one-year been filed within the statute of dismissing his habeas 2244(d)(1). limitations set out in Initial- petition; appeal attempt judg- ly, the granted certificate ment unsuccessfully year ended of appealability, but we vacated it and 2000, when he was denied a certificate of remanded for clarification because the cer- appealability purpose. for that What Gon- issues, any not specify tificate did which now, seeking appeal panel zalez is as the 2253(c)(3). contrary remand On explained, is the district court’s 2002 order the district court reconsidered and denied denying his Rule motion for relief appealability, Gonzalez certificate of from the that had dismissed his April judge 2000 so did of this in 1998. Id. at 1310. If a That Court. was the end Gonzalez’s appealability required certificate of appeal from the dismissal of his habeas an appeal from the denial of Rule petition. case, relief in a habeas Gonzalez needs one later, A year July little over a focusing on that 2002 order and asking Gonzalez filed Rule presents. issues it Id. the district court to relieve him of its final that a cer- panel The Gonzalez decided judgment dismissing his federal pe- appealability required tificate of before ground tition gave as time-barred. he of the denial of Rule intervening Supreme was the Court deci- Bennett, judgment denying from a habeas relief is sion Artuz v. U.S. (2000), permitted. holding, panel so 148 L.Ed.2d 213 interpreted “рroperly aligned filed” clause of this circuit with five of the six 2244(d)(2) specifies § any period 1. 28 U.S.C. that: “The ward under this sub- of limitation during properly application time which filed section.” That subsection includes one- year post-conviction provided for State or other collateral statute of limitations which had respect pertinent judgment review with to the of Gonzalez's habe- basis for dismissal pending petition. or claim is shall not be counted to- 1262 panel Id. at 1312. The other reason addressed the is- that have

other circuits rule, Mobley The deci- that even without the gave at 1310-12. Gonzalez sue. Id. in that the Lazo case— in beyond the same sion went the result would have been or successive a second case; had involved motion also would his Gonzalez’s 60(b) motion— as a parading the pre-AEDPA have been denied under holding Lazo’s “effectively extended] de- governing judgments law when circuit the denial of true Rule involving appeals nying reopened relief can be based 60(b) panel Id. at 1312. motions.” law. See id. changes applicable filing as a true ‍​‌​​​‌‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌​​​‌‌‌‌‌‍characterized Gonzalez’s panel be- at 1313. Because the Gonzalez 60(b) motion, it does not because among that result was not debatable lieved for relief from his ground a new assert reason, jurists it denied certificate an old or re-assert conviction and sentence in the case ordered appealability instead, solely at one; motion is aimed Id. at 1313-14. appeal dismissed. that had been re-opening panel’s vacated the order We later prior Gonzalez against entered case for consideration en reinstated the limitations § on statute of proceeding 2254 Gonzalez, 326 F.3d at 1176. banc. to the merits of regard grounds without at 1311. any claims. Id. II. judg re-opening ground As begin our discussion of the law with We ment, latest motion asserted Gonzalez’s Throughout note. this preliminary this Bennett, 4, 121 S.Ct. that Artuz v. distinguish do not between the opinion we (2000), changed had 148 L.Ed.2d 213 upon three cases before us based whether spent time controlling law about which § prisoners and they involve state is to proceedings post-conviction state law, § prisoners and law or federal the stat- running excluded from the be there is no material difference because decision, ute of limitations. The Artuz statutory language, relevant see circuit on change which did the law of this 2253(c)(1)(A) (B), § & how the issues Moore, 244 point, Weekley v. F.3d see arising language from that should be re- (11th Cir.2001), had not been re- Gonzalez, n. 317 F.3d at 1311 solved. See just years after the leased until over two 1; Crosby, also see Walker § 2255 judgment dismissing Gonzalez’s (11th Cir.2003); compare 1245 n. 4 entered, motion as time barred had been ¶ say § 2255 8. we What his efforts to and seven months after opinion appeal- in this about certificates of peal had ended. ability they motions as and Rule any view about panel imply did not proceedings applies equal- relate to change the statute of whether Artuz would ly proceedings, and vice versa. case, Gonzalez, limitations result say petition” When we “habeas we mean 3, concluding n. instead that F.3d at 1314 motion,” “§ and our use of include would, ground if not a valid even it “§ 2255 mov- petitioner” “habeas includes for Rule relief. One reason Gon- ant” as well. panel gave zalez is that was bound Mobley, the rule announced in which is A. post-AEDPA that in the era all Rule panel The Lazo and decisions Gonzalez motions are to treated as second or re- appealability address the certificate of petitions and denied on that quirement applies as it to two broad cate- they basis fit within the narrow unless 2244(b)(2). motions. Lazo con- exceptions gories for them set out in of Rule

1263 seen, quired frequently appeal most for the of denial of a category cerns the 60(b) judg- § Rule motion for relief from a or successive 2255 mo- which is second § § in ment a 2254 or 2255 proceeding. petitiоns § 2254 cross-dressed as tions or position This is in line with 60(b) the decisions of Despite clothing motions. the five of the six other 60(b) circuits to consider the it, Lazo on his is not a true Rule put Strack, question. Kellogg See v. 269 F.3d not concern a because it does de- motion (2d 100, Cir.2001); 103 Rutledge v. United § in proceeding fect the earlier 2255 States, 1041, (7th 230 F.3d 1046-47 Cir. to Lazo. led to the relief 2000); Horn, 333, Morris v. 187 F.3d 336 essence, Lazo’s motion at- Stripped to its (3d Cir.1999); Langford Day, v. 134 F.3d underlying judgment of convic- tacks the (9th 1381, Cir.1998); 1382 Zeitvogel v. grounds tion and sentence itself Bowersox, (8th Cir.1996). 56, 103 F.3d 57 § in prior proceeding. asserted 2255 only court of appeals go the other Lazo, 314 F.3d 572-73. Circuit, way, the Fifth has offered no ex- category The other of Rule mo- planation its different direction. See An example tions are the true ones. Cockrell, (5th v. Dunn 302 F.3d 492 in them is the motion filed the Gonzalez .2002). Cir case. That motion seeks to set aside the persuasive explanation We find prior judgment denying habeas relief on a given majority Second Circuit has for the 60(b) ground traditional Rule for relief position. Kellogg, See 269 F.3d at 103. a prior judgment, from a or at least on 2253(c)(1) terms, By § plain certifi- during ground that was sometimes used appealability requirement applies cate of Gonzalez, era. 317 F.3d pre-AEDPA § § to “the final order” 2254 or 2255 intervening is an ground at 1310-11. proceeding, and Rule motions have original in the to the change applicable law been considered final orders for appellate 1311; Id. at 2254 and its claims. purposes types proceedings. other Smith, v. F.2d generally see Ritter 811 id.; INS, 386, 401, See 514 Stone U.S. (11th Cir.1987) (prior 1401 to enact- 1537, 1547, 131 L.Ed.2d 465 AEDPA, ment of the (1995) (noting that the denial of a Rule change sometimes available as result of order). separate motion is a final law). 2253(c)(1) refers to “the final Because panel The Lazo held order,” argued it could is there 2253(c)(1) of a requirement certificate final one true order each habeas appealability applies to the denial of Rule appealabili- case to which the certificate of 60(b) motion, at least when the is However, in ty requirement applies. or equivalent the functional second Act, Dictionary which is codified at Lazo, petition, 314 F.3d at 573- 1,§ Congress has made it clear U.S.C. it not a say which is to when true enacts, the statutes “unless panel motion. The Gonzalez import- context indicates otherwise words further, holding step took that one con- ing singular apply include and to sev- ” cluding appealability that a certificate of things.... persons, parties, eral See required before there can be an D’ltalia, Inc., United States v. Fior 60(b) motion, any Rule even a true one. 238, 263, 2117, 2133, U.S. S.Ct. Gonzalez, at 1311-12. (“under (2002) Dictionary L.Ed.2d 280

Act, statutory provision U.S.C. B. singular may plural include the where context”); agree panel Barr v. We Gonzalez that would work States, 83, 91, appealability that a certificate of is re- United U.S. (1945) 525-26, 1 attack on the of conviction and (citing L.Ed. 765 2253(c). sentence itself. See 28 U.S.C. authority construing § 1 for as U.S.C. “buying to include rate” statutory term that, it would make no sense to Given rate); buying Dobard v. than one more prisoner the same remove the filter when (11th Johnson, 749 F.2d Cir. denial of Rule relief appealing 1985) § 1 authority for (citing U.S.C. relief, judgment denying from the which is “the alternative forum conclusion that rejection attack a kind of collateral on the 2241(d), though phrased provision of Sec. more his collateral attack. The re- have been intended singular, moved an attack is in plu- treated as by Congress responsible pris- for the incarceration of a ral”). Here, context does not indicate oner, likely the less the attack is to have otherwise, paying attention to the and merit; or, least, likely at the the less it is command in 1 Congressional U.S.C. to have merit that matters. The Second evident intent carries out behind phrased thought the same this Circuit 2253(c)(1). There is no reason to treat way: would be rather anomalous for “[I]t denying habeas rеlief and subse orders Congress have intended screen out quent reopen orders motions to appeals unmeritorious from the denials of differently pur those earlier orders for yet corpus petitions not have poses appealability of the certificate of re apply wished to this same screen to quirement, every and there is reason to seeking motions to revisit those denials.” them the same.2 treat Kellogg, Congress 269 F.3d at 103. some- things, times does anomalous but the lan- appealability The certificate of is a 2253(c)(1) guage it used in per- does not gateway requirement threshold or suade us that it intended to act in an to filter appellate pro- serves out from the way anomalous and inconsistent here. possibility cess cases which the of rever- justify sal is too unlikely to the cost to the respect While we the dissent’s different system appellate of a full examination. view on the issue of whether certificates of Cockrell, 322, appealability See Miller-El v. required, are we find the rea- 1029, 1040, soning unpersuasive. 154 L.Ed.2d 931 behind its view To (2003) with, (By enacting ap- begin the certificate of the dissent’s criticism of our AEDPA, pealability provisions conclusion on this issue is based at least “Congress necessity part misunderstanding confirmed and the on a of it. The requirement says of differential treatment dissent in Part holding IV we are appeals deserving those of attention from a petitioner apply must to this Court not.”). that plainly those do There can be leave to file his Rule motion. Dis- question appeala- senting Op. no that the certificate of at 1300-1302. Not so. Rule bility applies prisoner filter when a motions must be filed in court, pealing Court, the denial of his collateral not in this nothing we Although agrees agree with us that the word We 1298-1299. with that. Our dis- statutory "the” in the term "the final order” agreement with the dissent stems from our (we plural, can be read in the the dissent will recognition legislative that the evident intent throughout opinion use "the dissent” this requiring behind such certificates in habeas Judge Tjoflat’s separate opinion spe- refer to undeserving appeals cases was to filter out cially concurring part dissenting effort, judicial with a minimum of and that part) way thinks it should not be read that intent would be frustrated unless "the final doing carry legislative unless so would out the interpreted order” is to include final orders appealability intent behind the certificate of denying Rule relief in habeas cases. 2253(c)(1). requirement Dissenting Op. §in showing a substantial of the denial of anything to the made suggest to say is intended 2253(c)(2). right.” do with a constitutional See have to contrary. Our conclusions 60(b) be, Appealing might in as it otherwise that motions of Rule proper scope reasoning Supreme a is at war with the and with whether proceedings habeas holding in the Slack case. Con- required is to Court’s appealability of certificate identical struing applying of statuto- a district court’s denial seek review of ry language, the in Slack concluded change Court proceeding. in a habeas We one 60(b) a deciding motions that in whether to issue certifi- nothing about where permit appeal of to filed, appealability in the district court. cate which is must be from the denial of a habeas require- not meet the If the motion does procedural grounds, courts must consider today, outline the district ments we debatability procedural ruling, of the deny it. If a wishes to must 60(b) if may motion and no certificate be issued the denial of a Rule appeal relief, a petitioner fails to make substantial show- at a aimed ing procedural ruling wrong. that the appealability of he must obtain certificate at 1604. The in to do so. order that the certificate of position dissent’s that no Rule dissent’s criticism The appealability applied standard cannot be to 60(b) could ever meet the stan- questions non-constitutional will be of appealabili- out for certificates dards set Court, Supreme news to the because it is 2253(c)(1) (c)(2), provides ty in & impossible position to reconcile that appli- ... if the they “may issue announced in the rule the Court Slack. showing a substantial of the cant has made right,” of a constitutional is obvious- denial position dissent’s that a certificate The Dissenting ly generally unfounded. See required appeal of is never to appealability of the disposition 60(b) Part Our of two Op. IV. in the denial of Rule a habeas proves how unfounded cases front of us contrary of case is also to the decisions in Part III of this conclude is. We attempts other circuits. dissent petitioners two of the three opinion of the decisions of the distinguish most appealability, of are entitled to certificate the is other circuits that have addressed them one. do so and we issue each of We of have concluded that a certificate sue and pro- applying guidance Court a Rule appealability required McDaniel, us U.S. vided Slack says in a habeas case. It denial 146 L.Ed.2d the Rule motion was those cases (2000), with certificate of which dealt that reason was not a “true” one and for procedur- to review pealability applications court. correctly denied cases. That ally based denials attempt But that Dissenting Op. at 1300. impossible. which is done is There is will not wash. ed distinction of language purpose nothing Furthermore, premise central 2253(c) distinguishes between Rule argument is that the impossibility dissent’s they upon whether motions based of whether to issue certificate decision dissent ones or not. And the are “true” confined to consider- appealability must be why nature of the Rule explains never debatability of a constitutional ation of the be, reasons, determine whether motion should It must the dissent issue. required appealability appealability certificate the certificate because denial of it.3 The statuto- appeal from the applicant is whether “the has standard 2253(c)’s question relating use of the singular plural Going versus back to covers, appeals subsequent the certificate re- torious from the denial ry language to all of them or to applies, quirement proceed of Rule habeas eases authority, weight And the clear none. appellate courts and undermine burden applies is that it agree, we with which finality judgment. all of them. significant. burden Un- attempts to distin Although the dissent position single judge der our a decides precedent against its guish much of the Rule appeal whether the from a denial of suggestion that the cer

position with the 60(b) arguable enough relief has merit requirement ap appealability tificate of it proceed the issues seeks —whether of some but not all plies appeals to the jurists among raise are debatable of rea- 60(b) cases, denials habeas position, a full- son. Under the dissent’s position core seems to be that the dissent’s briefing and a appeal regular blown with ap appealability requirement certificate of by three-judge decision on the merits a 60(b) appeals at all.4 For plies to no Rule every time there panel would have occur apparent, posi that should be reasons 60(b) a in a case and the rational order of is Rule denial tion would reverse already explained, have not things. petitioner appeal. pris- As we elects to And applying requirement the certificate to a always appeal oners will almost elect to denial would make it easier to given all the free time on their hands. See rejection of a attack appeal the collateral Garner, Harris v. 978-79 than it on the denial of habeas relief (en (11th Cir.2000) banc). The dissent appeal the initial denial of habeas relief appeal would have the courts of entertain Congress’ itself. It would defeat obvious appeals and decide each of those no matter appealability that the certificate of intent clearly appeared how non-meritorious it important be an requirement and effective outset, from the and no matter whether it out appeals tool to weed unmeritorious and was from the denial of the first or fifth or bring greater finality about petitioner fifteenth Rule motion the habeas cases. Congress had filed. could not have intend- up The dissent fails to face to those ed that. inescapable and undesirable results of its reasons, For all of these we conclude It not position. attempt does even to ex- appealability require- that the certificate of plain why Congress would have wanted to applies judg- ment to all final clearly appeals cut out non-meritorious relief, relief, denying ments 2254 or but from the denial of habeas at while letting clearly judgments the same time all non-meri- also to all final denying Rule order,” attempt opinion. dissenting opinion term "the final the dissent's Part III.A of the 2253(c) explain away authority clearly position the other circuits' asserts the that the against position requirement apply appeals massed would mean that does not 60(b) motions, where the Rule motion that is denied is the denial of because one, a true pertains only "the final order” was used to the first order sense; Congress singular Yet, in the where the Dissenting Op. habeas relief. at 1300. one, denied is not true it was used very part opinion, in the next of the same by Congress plural sense. See Dissent- attempts position dissent to reconcile its ing Op. bipolar at 1299-1300. That construc- Lindsey (requiring this Court’s decision in tion does not make sense. certificate before an from the denial of case) by a Rule motion in that habeas qualify description implying required 4. We our of the dissent's least certificate is if be,” position with "seems to because there is the Rule motion is not a true one. See inconsistency subject Dissenting Op. page some about this in its Part III.B at 60Q3) judgm peals those earlier final that deserve more careful attention relief from ents.5 from the ones that do not. More than the frivolity presence absence of or the good

III. faith is for a required petitioner to clear question up is whether certifi- 335-38, The next this hurdle. Id. at 123 S.Ct. at appealability cates of should be issued 1039-40. Congress before us. has the three cases particular Of relevance to the three provided appealability certificate us, cases we have before each of which

may “only if the has made applicant issue 60(b) procedural involves Rule issues showing a substantial of the denial of issues, addition to merits is the Slack deci- right.” constitutional U.S.C. sion. In that case the district court had 2253(c)(2). has ex- Court denied the procedural must plained that this means grounds reaching underlying without jurists could debate show “reasonable Slack, constitutional claim. 529 at U.S. that) (or, matter, agree whether for that 484, 120 at 1604. The Supreme S.Ct. in a should have been resolved held that in a Court those circumstances pre- different manner or that the issues appealability certificate of should issue encour- ‘adequate sented were to deserve ” if petitioner makes both a sub- v. agement proceed to further.’ Slack showing that he had a valid claim stantial McDaniel, 473, 484, 529 U.S. 120 S.Ct. of a right, of the denial constitutional and (2000) 1595, 1603-04, 146 L.Ed.2d 542 showing procedural substantial that Estelle, 880, (quoting Barefoot 484, ruling wrong. is Id. at S.Ct. 3383, 4, n. 893 n. 103 S.Ct. components 1604. Those are the two (1983)); accord Miller-El v. L.Ed.2d 1090 showing petitioner in that situation Cockrell, 322, 335-36, 123 S.Ct. U.S. in order to must make be entitled to (2003). 1029, 1039, 154 L.Ed.2d If appealability. certificate of either of the appealability The certificate of re components lacking, may deny a court is at the quirement is be administered application for a certificate because of deciding appeal, threshold of the and that de- component the absence of without requires whether to issue one neither nor ciding whether the other one exists. Id. at factual permits full consideration of the (“Each 485, 120 component at 1604 claims, legal and merits of the Miller-El at 2253(c) showing part of a thresh ques 123 S.Ct. at because “[t]he inquiry, may and a court find that it old debatability underlying- tion is the of the application can in a fair and dispose of claim, constitutional not the resolution of proceeds if it first to re- prompt manner debate,” at 1042. id. at ap- whose answer is more solve issue required That is not means arguments.”). from the record and parent appellate demonstrate entitlement to relief given opportunity in order to be an A. Still, pursue appeala it. the certificate of principles With these mind we one, bility requirement is not a toothless specific The easiest turn to the cases. applied purpose and it with its should mind, separate is to out those case in which to decide the certificate majority opinion the circuit is contained in the In Part IV of its the dissent recasts law of dissenting opinion’s our conclusions and the rules we announce. opinion, de- not in the reject recasting, We and we remind scription of it. reader that in decision of this Court the question grounds. is Lazo. The under- statute of limitations

appealability claim that case as- lying constitutional may not be available in these circum- charging indictment Lazo serts that (a stances, but before we decide little later possess with intent to conspiracy opinion) apply in this what standards cocaine, possession with in- distribute post-AEDPA era to Rule motions cocaine, tent to was insufficient distribute cases, say in habeas we cannot Gonzalez’s subject district court matter give the position procedural issue is not jurisdiction allege because of its failure among jurists debatable of reason. Ac- foreign com- effect on interstate cordingly, grant we will Gonzalez a certifi- merce, provide failure to Lazo with and its cate of to a full appealability proceed specific penalty notice of the he faced. appeal. consideration of his no basis at all for those claims. There is keeping with the dictates indictment, An which is examination 2253(c)(3), specify we the issues on us, reveals that it is the record before granted being which the certificate is respects. in all con- fully adequate Lazo’s the last two for which requested indictment we en tentions defective ju- among are not reasonable briefing debatable banc in this case: standards What he has failed to rists. Because make applicable are to Rule motions showing of the denial of a substantial con- cases, in light of those stan- deny him right, stitutional we a certificate dards was it an abuse of discretion for the appealability of on that basis. doWe so deny the motion? reaching procedural compo- without required showing, nent of which is C. whether of the Rule motion is- case, As in Gonzalez’s so also Mob- gives sues that his case rise to are debata- ley’s case. His jurists may ble constitutional claim among of reason. merit, say lack but we cannot upon based B. the record before us that it is not debata- jurists Gonzalez’s claim is a different mat among ble of reason. The same is guilty plea ter. He contends that his procedural arising true of the issues from unintelligent, unknowing, involuntary his case. we Until decide what standards upon specific prof based evidence he has apply to Rule motions habeas us, fered. From the record before which cases, Mobley’s position that he is entitled transсript guilty does not contain a judgment denying relief from the him (there plea proceeding is some indication habeas among jurists relief is debatable of exists), say no transcript we cannot he, too, gets reason. So a certificate of among Gonzalez’s claim is not debatable appealability, specifying and it is one jurists Therefore, of reason. same two specified issues we for Gonzalez. dispensed cannot be with at the certificate appealability of stage on the basis of the IV. component. constitutional claim 2253(c) Having decided that the certif- procedural

As for the component, Gon- appealability requirement icate of does among zalez must show that it is debatable ply appeals from denials of Rule jurists of intervening reason whether the cases, and that a certificate Bennett, 4, decision Artuz v. 531 U.S. 361, appealability ought to be issued in the (2000), 121 S.Ct. 148 L.Ed.2d 213 cases, Mobley entitles him to Gonzalez and we turn now relief from the prior judgment denying habeas relief on to granted the third issue for which we en

1269 more, placed AEDPA have rather than govern standards banc review.6 What fewer, judgments aimed at power motions restrictions on the of federal is, when should proceedings, grant corpus courts to writs of habeas granted? Cain, those motions be Tyler v. prisoners.”); state 533 U.S. 661, 656, 2478, 2481-82, 121 150 S.Ct.

A. (2001) (“AEDPA greatly L.Ed.2d 632 re- critically important be- question This power stricts the of federal courts to consistent direction and the cause of the prisoners award relief to state who file on extent to which limitations substantial corpus appli- second or successive habeas petitions have second or successive cations.”); Taylor, Williams v. 529 U.S. evolved. The evolution has been toward 420, 436, 1479, 1490, 120 146 L.Ed.2d S.Ct. in- finality judgments through greater (2000) (“AEDPA’s purpose 435 to fur- [is] creasingly tight restrictions second principles comity, finality, ther the gone have petitions. We federalism”); Thompson, Calderon v. 523 days permissive of the more ends 538, 558, 1489, 1502, 118 140 U.S. S.Ct. standards, justice of the writ and abuse (1998) (“AEDPA’s L.Ed.2d 728 central see, States, e.g., Sanders v. United 373 concern that the merits of concluded [is] 1075, 1, 12, 10 L.Ed.2d U.S. proceedings criminal be revisited (1963); post-MeCleskey to the era with strong showing of a of actual absence permissive prejudice its less cause innocence.”); States, Johnson v. United Zant, standard, see, e.g., McCleskey v. (11th Cir.2003) (“It 1219, 1224 467, 493, 1454, 1470, U.S. S.Ct. generally accepted princi- that one of the (1991); Whitley, Sawyer L.Ed.2d 517 v. AEDPA pal functions of was to ensure a 2514, 2518, convictions.”); greater degree finality (1992); present post- L.Ed.2d 269 to the States, F.3d Jones United times, AEDPA claims total ban on (11th Cir.2002) (“A pur- fundamental presented prior petition, that in a were AEDPA final- pose for the establish 2244(b)(1), § and a near-total ban on those ity post-conviction proceedings.”). in 2244(b)(2). not, § that were see AED- purpose That central of the purpose The central behind the provisions specifically PA and its restrict finality of greater AEDPA was to ensure peti or successive ing filing of second judgments state and federal court crimi of Rule severely application tions limit the cases, provisions that nal and to end its cases. Rule of the habeas filing of second or suc greatly restrict the § Governing provides Rules Cases petitions. cessive Court Rules of Procedure that the Federal Civil points many have made these this Court “may applied, appropriate” when ha Cockrell, times before. See Miller-El proceedings, only “to the extent 322, 337, 1029, 1039-40, beas but (2003) (“Statutes they not inconsistent with these such as that are 154 L.Ed.2d collapsed briefing explanation way we on the certificate 6. We offer this about the have realize, course, proceeding. appealability We of are issues with that about the of procedure dealing we our with the cases § proper scope in 2254 of Rule motions have us does not follow the usual before cases, § because we determinеd Ordinarily, whether course in these matters. way to decide all that this is the most efficient grant appealability a certificate of in case given ample parties were of the issues. The first, granted decided and if a certificate is is argue fully all of opportunity to brief and briefing specified full on the issues we decide here. the issues case, we certificate follows. In this en banc petitions, 28 U.S.C. fol. 2254. of second or successive see 28 rules.” Rule 2244(b), trump example habeas rules the civil U.S.C. Con- Given that the any inconsistency, gress doing that to some extent. ones to the extent statutory provisions certainly follows that it, Regardless explains of how one trump governing proceedings habeas also adopted if the earlier rule is inconsistent provisions that are incon- general civil rule statutory provision, with the later enacted sistent, especially and that is true subse- yields the rule to the statute to the extent statutory provisions such quently enacted inconsistency. opera of the And unless its AEDPA. The civil rules as those cases, Rule tion is throttled back habeas by as much explicitly recognize themselves 2244(b). Ap is inconsistent with they applicable are to habe- providing 60(b) full final plying judg throttle to only “to the extent corpus proceedings essentially ments in habeas cases would practice proceedings that the such is not repeal provi the later-enacted AEDPA forth in statutes of the United States” set restricting peti sions second or successive or in the rules. Fed.R.Civ.P. provisions broadly tions. The rule’s are 81(a)(2).7 permit judgments worded and to be re way explain opened “upon just” a different are There’s such terms as reasons, ing point. Congress any including same allowed number of cor mistake, through to be created the Rules rect a to undo the of inad result vertence, process, generally, remedy Act see or to Enabling neglect, excusable 2071-2077, by 60(b)(1); exercising newly §§ its Fed.R.Civ.P. or U.S.C. because authority evidence, 60(b)(2); legislative modify to veto or discovered Fed.R.Civ.P. rule, Congress “any can supercede justifying see or for other reason promulgated operation judgment,” other rule from the Fed. 60(b)(6).8 by through process actively the rules as R.Civ.P. The latitude that serting legislative authority gives reopen judgments to enact rule courts to final provisions govern procedure. frequently described as a “broad discre See, filing e.g., AEDPA with its restrictions on the tion.” v. Dr. Pepper/Sev- Bennett rules, too, (1) mistake, explicitly following 7. The will soon for the reasons: inad- vertence, recognize point (2) the obvious that the civil rules surprise, neglect; or excusable apply proceedings do not to habeas to the newly discovered evidence which due they any extent are inconsistent with diligence could not been have discovered in statutory provision. Judicial Conference time to move for a new trial under Rule approved has to the Su- recommended 59(b); (3) misrepresentation, fraud ... or rules, preme Court a of the habeas revision (4) party; other misconduct of an adverse following restyled which includes the Rule 12: void; (5) judgment judgment is has "The Federal Rules of Civil Procedure and the satisfied, released, discharged, been or or a Procedure, Federal Rules of Criminal to the prior judgment upon which it is based has they any extent that are not inconsistent with vacated, been reversed or otherwise itor is rules, statutory provision may ap- or these longer equitable judgment no plied proceeding to a under these rules.” (6) prospective application; should have or Proposed Proceedings Amendments to under 28 justifying other reason relief from added). (emphasis U.S.C. 2255 The accom- operation judgment. of the panying committee states note The motion must be made "within reason- change stylistic only is intended to be and that time,” (1), (2), (3), able and fоr reasons change being no substantive made. Id. year judgment, "not more one than after the 60(b) provides may 8. Rule that the court re- order, proceeding was entered or taken.” party judgment, lieve a from final order or 60(b). Fed.R.Civ.P. proceeding: (8th “mistake, inadvertence, sur- 805, resulted from Inc., Cir. 295 F.3d Up, en 2002) (“We neglect,” a district court’s or excusable would have prise, will reverse if there Rule ruling vitiating on a effect. the same broad of the court’s a clear abuse rule, applied if it were part No Fosber discretion.”); Inc. v. Marquip, cases, could do more harm to the habeas (Fed. 1363, America, Inc., F.3d finality judgments pro- and the interests of Cir.1999) (“[T]his of detects no abuse than Rule by the AEDPA tected discretion to court’s broad a final permits reopening which Hoult, 60(b).”); 57 F.3d Hoult ply Rule justifying relief from “any other reason Cir.1995) (“We (1st at the outset 1, note judgment.” Judge As operation discretion enjoy broad that district courts limiting opera- Tjoflat explained, has Rule brought under deciding motions 60(b)(6) in habeas cases is tion of Rule Forest, 60(b).”); River Village Lee v. critically because important, “[a] 1991) (“A (7th 976, trial Cir. provision ‘catch-all’ court that uses this Rule grant broad discretion judge has corpus petitioner to obtain allow a habeas judgment.”). relief claim will of a new constitutional review 60(b), provisions Most of of AEDPA.” provisions ... eviscerate the with broad discretion which vest courts J., (Tjoflat, at 1101 n. 3 Mobley, 306 F.3d variety of on a wide reopen judgments dissenting). and irreconcil- grounds, are inconsistent judgments final reopen The discretion to purpose, AEDPA’s which with the able provisions in most of the contemplated power of federal “greatly restrict[ ] co-exist in a habeas case cannot prisoners to state to award relief courts 2244(b). statutory provision, That habeas cor- or successive who file second Cain, re- or successive Tyler v. whose second pus applications,” 2481-82, at and with for the “grounded respect at 121 S.Ct. strictions are con- Calderon, the merits of concern judgments,” “central finality of criminal proceedings not be revisit- cluded criminal explicit- at 118 S.Ct. U.S. showing of strong of a in the absence ed judgments final setting aside ly forbids Calderon, innocence,” 523 U.S. at actual in rare cir- except denying habeas Consider, ex- at 1502. narrow fit the two cumstances that within 60(b)(2), permits ample, Rule statutory pro- in that contained exceptions upon a final based reopening revisit- restrictions on The severe vision. If that rule evidence. newly discovered contained judgments final that are ing cases it would ef- applied were antithesis of the virtually are the more fectively erase from the books 60(b) generally discretion that broad require- specific statutory recent and more them. reopen courts to gives district judgments denying final ment that enacting reject, Congress because We or set aside because reopened relief not be that rejected, any notion AEDPA has evidence, unless “the newly of discovered just another cate- are proceedings habeas whole, to be sufficient as a would evidence of Rule purposes gory of civil cases convincing evidence by clear and establish 60(b). Or, in of the Feder- put to terms error, that, no rea- but for constitutional themselves, we Procedure Rules of Civil al have found the factfinder would sonable final reopening insofar conclude offense,” underlying of the applicant guilty concerned, in cases is judgments habeas 2244(b)(2)(B)(ii). 60(b)(1), And Rule ] set proceedings [ in such practice “the a final reopen a court to permits States,” see the United in statutes of loss that forth litigation to undo a 81(a)(2), in specifically court’s mandate. Both motions were Fed.R.Civ.P. 2244(b). the new had based on evidence that there rape been no because the sex been had cannot and does means That Id. consensual. way it in cases thе does apply habeas cases, ordinary it does not in civil but denying Thompson’s mo- necessarily aspect mean that no rule tion, court the district construed it to be may relevance to It has habeas cases. under ex- play some limited role to habeas have “Thompson per- plained that ‘must not be is, cases; may aspect there of be some mitted to utilize a Rule motion 60(b) that is not inconsistent with the [statutory] make an around the end-run guidance AEDPA. For about what limited requirements’” of the AEDPA governing habeas might play role Rule cases petitions. second or successive Id. at to the Calderon we look Court’s at 1496. Even new with his decision, analogy which involves the closest witness, in view of the other evidence (the appellate recall of mandates habeas him, Thompson against could not show cases) provides we can find and some com- actually that he was innocent that his so reasoning. pelling jus- miscarriage execution would be a of tice. Id. at 1496-97. B. panel Thomp- Circuit The Ninth denied lengthy proce- Calderon case had a appellate son’s motion recall the man- history, part but the of it dural relevant date, days but two before he was sched- purposes began panel for our after a uled to executed the court en banc Circuit reversed a Ninth district court’s mandate, recall the voted to which had grant rape-mur- of habeas relief as to the days 547-48, been issued earlier. Id. at der conviction and death sentence 118 S.Ct. at The en banc did court petitioner, Thompson. Thomas The dis- so not on basis of the new evidence granted trict court had relief after recall, Thompson’s asserted motion to concluding that Thompson had suffered sponte solely but instead acted sua based counsel, from ineffective assistance of but the claims evidence that been had Calderon, disagreed. the panel See presented in his first petition, 544-46, U.S. at 118 S.Ct. at 1495-96. Af- led grant one had the district court to rehearing denied, ter en banc relief originally be reversed appellate directing mandate panel. The en banc gave court two rea- deny all court relief Id. at was issued. recalling sons for the mandate. 546, 118 S.Ct. at 1496. One was that rehearing reason en banc Thompson brought then forward new granted been have before the man- evidence that there had no rape; been he procedural date issued but for misunder- testify had found a witness who would standings and mistakes within the court seen having engaged the victim what itself. other reason pan- was that the appeared to be consensual sex with el’s reversing grant decision Thompson night on the she was murdered. jus- lead to a miscarriage “would Thompson filed in appeals the court of tice.” Id. at 118 S.Ct. at 1497. The mandate, recall the and the next justice miscarriage en day he filed banc district court Rule perceived motion panel to set aside was was decision denying him wrong. habeas relief that had been It held that Thompson had been appellate entered obedience to the denied effective assistance of counsel appeals of has issued a a federal court to issue the writ court directed so, en At that doing In banc habeas relief. mandate ground. on that if determine no effort simply made is entitled not point, court State actually innocent Thompson but, finality of to use terms from assurance ' 548-49, 1497. S.Ct. at at crime. Id. finality” to “real or opinion, the Calderon 556-57, Id. at 118 S.Ct. finality.” “actual the en reversed Supreme Court mandate recalls at 1501-02. Because so, doing decision. Circuit’s banc Ninth the critical that entitlement and threaten generally the acknowledged that the Court it, of its that underlie their field to recall interests appeals a court of power of unquestioned. severely restricted permissible inherent and use is mandate is 549-50, at 1498. Habeas 118 S.Ct. Id. at cases. habeas different, cases, however, and that dif- are said, Or, Supreme as the Court when reopen- when it comes ference matters of exercise of judging propriety opin- judgments. The Calderon ing final mandate, “we mea- power to recall profound of “the explains ion because gen- of only against it not standards sure of the exercise costs that attend societal. the statu- application, against but also eral “found the Court had jurisdiction,” applicable tory jurisprudential limits limits on impose significant necessary at corpus in habeas cases.” Id. grant courts to of federal the discretion course, the most rele- at 1499. Of 554-55, at 118 S.Ct. Id. at habeas relief.” §in statutory limits are those vant examples given Among the stringently restrict consideration which had limitations the Court are the opinion petitions. Because second or successive ability of lower courts on the imposed application what the Court said about pro- to consider petitions, second consider to mandate recall mo- provisions those claims, and to consider cedurally defaulted directly on Rule mo- so tions bears upon based new decisional claims that are cases, it is worth a block tions in law. Id. quote: imposed limitations Underlying those case, prisoner’s § In a Supreme Court is what the its decisions the basis of the mandate on to recall the enduring respect for as “our characterized can be underlying decision merits of the finality in the of convic- interest the State’s or successive regarded as a second direct review that have survived tions 2244(b). § purposes plication system.” Id. at state court within the Otherwise, evade the petitioners could (citations and marks at 1500 118 S.Ct. pre- of claims relitigation against bar omitted). judgment is of criti- Finality of application, prior sented justice sys- criminal to our importance cal 2244(b)(1), against litigation or the bar finality tem, explained, because the Court prior appli- in a presented of claims retributive and the to both the is “essential 2244(b)(2). cation, grants If law,” criminal it “en- functions of deterrent motion, subject to action is such and it judging,” quality hances the mo- of whether the irrespective AEDPA the federal preserve “serves as well (in which case on old claims tion is based at 1501. Id. at 118 S.Ct. balance.” 2244(b)(1) new ones apply) would finality judgment, The interest (in apply). case when importance considerable which is of That would at 1500. Id. and sentence of a conviction state review case, if the end of have been the truly com- becomes completed, has been as a had come view, recall Calderon mandate after Court’s pelling, 1274 however, Supreme motion. the held petitioner’s of the See id. because Court

result (“Had 562, 1504 [the S.Ct. at en that post-judgment at 118 even where a situation the additional evi- considered court] banc does not fit within the actual of the terms in presented Thompson’s or claims dence AEDPA, a “must exercise its discre- mandate, course, of to recall the its motion in tion consistent with ob- manner the subject would have been decision statute,” jects of the and “the court must 2244(b).”). § guided by general principles the under- case, required in analysis was that More lying corpus jurisprudence.” our habeas however, a procedural because of wrinkle: by principles Id. Guided those and en had insisted The banc Ninth Circuit AEDPA, eye objects of the that it did not recall the mandate based that though Court concluded even sua in anything Thompson’s contained upon sponte mandate recalls are not within the motion, coincidentally instead recalled but statute, literal terms of the none should be solely based ‍​‌​​​‌‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌​​​‌‌‌‌‌‍sponte upon mandate sua its granted necessary prevent unless a mis- original in the the claims contained carriage justice, of as that term is defined the evidence had been pre-AEDPA jurispru- corpus presented support petition. of Id. 557-58, dence. Id. at at 1502.9 S.Ct. 548, 1497, 554, 118 at at S.Ct. This justice of miscarriage standard wrinkle procedural potentially mattered situation, appropriate § in that the text of covers the Court because reasoned, petitioner’s pursuant “comports court action because with the 554, 1500; AEDPA,” at plication. purposes See id. S.Ct. at values and underlying 2244(b)(1) (“A presented § also claim see even though provisions the AEDPA did second or corpus successive habeas not literally apply that case because 2244(b)(2) (“A ”); § .... application claim en banc court action had not been based presented a second or successive habeas 558, upon the petitioner’s motion. Id. at ”). application.... corpus 118 S.Ct. at 1502. The of miscarriage justice recognized standard was Because the recall mandate had Court “altogether to be consistent ... with Thompson’s not been based upon AEDPA’s central concern that the merits the en banc court had not considered proceedings concluded criminal not be anything in that motion in contained mak- revisited in strong the absence decision, show- ing Supreme Court ac- ing of actual innocence.” Id. fac- knowledged Actual the terms tual required; legal innocence is govern peculiar did innocence circumstances specific 554, is not enough. of that recall. Id. at It is narrow well- mandate S.Ct. at 1500. exception rarely It made little defined that will difference be found technically 559, did not apply, exist. Id. at 118 S.Ct. at 1502-03. dence, 9. Court drew actual inno- the standard is whether "it more likely standard sponte juror cence it announced for sua than not that no reasonable recalls Schlup mandate from its decision in have light convicted new him of the Delo, 298, Schlup, evidence.” 513 U.S. at (1995), Calderon, using quoted L.Ed.2d instead of one 523 U.S. at Calderon, 2244(b)(2)(B). contrast, By contained in See 118 S.Ct. at 1503. under 559-60, 2244(b)(2)(B) 523 U.S. at S.Ct. at 1502-03. standard is whether it has are "by convincing There some between differences the two been established clear and that, error, example, Schlup standards. For under the evidence but for no constitutional constitutionality formulation when the reasonable would have factfinder found petitioner guilty underlying conviction is at issue of new because evi- offense.’' 566, Thompson to was reversed. Id. at C. at 1506. ha- a final reopening about The lessons from the that we draw judgment beas D. and are that opinion decision Calderon Calderon’s lessons about whether and granted relief should not be Rule appellate power when an court’s to recall a judgment denying habeas relief from a may mandate be in habeas used cases met, and demanding is a standard unless much apply question with as force to the of demanding applies which of two standards and when a trial court’s whether the on whether recall results depends 60(b) authority to final reopen judgment a by petitioner a made the or is done in may be used a case. Recalling habeas on own If the recall the court’s initiative. reopen mandate to alter the final the and by that petitioner, is on a motion the based judgment a habeas case is the closest equivalent the functional of motion is thing appellate on the to the use of level the and second or reopen to change and final 2244(b) apply the terms of AEDPA’s judgment at the trial level. The unfet- If, put of the label it. on the regardless application procedure tered of either hand, a court of is consider- appeals other judgments final in habeas reopen cases ing its own mo- recalling the mandate on undermine important principles §of do not tion the literal terms con- protected values the restrictions mаndate be recalled apply, but the cannot law and tained habeas decisional the miscarriage necessary prevent unless AEDPA. of means must justice; petitioner that emphasized Court Cal- crime, of or of the factually be innocent enduring “our for a respect” deron state’s sentence, pre-AEDPA defined in finality judgment interest of a jurisprudence, n. see federal sys- review the state has survived within above. tem, finality judg- stressed that indicat- Supreme Court in Calderon proper function- ments is essential to the exceptions to the apply ed two justice system criminal ing of the judgment that the final rule balance. Cal- preservation federal reopened by a recall of may case not be deron, 555-56, at 118 S.Ct. at demanding stan- the mandate unless the enduring respect for the 1500-01. Our applies exception dard that is met. One judg- criminal finality interests behind may to cor- that the mandate be recalled ments, understanding finality and our judgment. rect a mere clerical error in the and to our justice to criminal is essential Id. 118 S.Ct. at 1501. The other system, vary depending federal does not may re- exception is that the mandate finality comes on whether threat upon there was “fraud called where the mandate or from a motion recall court, very legiti- calling question into a federal from a Rule motion. When 557, 118 judgment.” id. at macy of the See deny- court has a mandate appellate issued at 1501-02. Neither situation relief, interests in ing habeas the state’s case, present in the nor did the Calderon judgment its courts are no finality of demanding standard meet 118 S.Ct. at “compelling,” id. at less (actual innocence) As a applied finality” there. to “real and its entitlement result, sim- finality” the Ninth Circuit diminished and “actual is not recalling petitioner’s attempt mandate and re- ply en court because banc wrapped affirming grant open federal habeas judgments by recall reopen recalling instead of mandate its mandate packaging reopen and the than a district has to them The interests threatened paper. 60(b). Calderon, Compare under Rule 523 the of those interests are same importance 549-50, (power at 118 at to U.S. 1498 at of whether the attack comes regardless only in recall mandate to be exercised appellate or level. A the court district circumstances) extraordinary Ben- reopened judg- is a reopened nett, F.3d at 807 a district (describing ment. 60(b) authority grant court’s Rule mo- 60(b) between Rule re Two differences discretion”); involving tions as one “broad mind, lief mandate recalls come to but and Inc., (“the Marquip, 198 F.3d at 1369 dis- weighs in favor permitting neither of the apply trict court’s broad discretion to Rule finality to undermine of criminal former (“district Hoult, 60(b)”); 57 F.3d at 3 any judgments more than the latter. One enjoy deciding courts broad discretion in is that for procedure difference obtain 60(b)”); Lee, brought motions under Rule from a ing relief at (“A trial judge 936 F.2d at has broad 60(b), court is set out in while level Rule 60(b) grant discretion Rule relief from no comparable there Federal Rule of However, judgment.”). that difference Appellate pro Procedure sets out the shows is even restrict there more need to recalling a once it has cedure for mandate 60(b) cases, the use of Rule in habeas issued, generally R.App. see P. Fed. because the broader to up- the discretion mandates). 60(b), (governing Rule howev judgments, greater set final threat er, provides procedural frame finality to the interests that the Su- drove work, governing while substantive law preme decision in Court’s Calderon. Ev- judgments trial level erything the Court about said law, supplied decisional see Fed. why given mandate recalls must be more 60(b) advisory R.Civ.P. committee’s note restricted role than in habeas cases (“It 60(b) should noted Rule does applies other equal, cases at least and not assume to define the substantive law perhaps greater, reopening measure to grounds judgments, as to the for vacating 60(b). judgments under Rule merely prescribes practice pro but reasons, of For all these a Rule relief.”), ceedings just obtain as the motion at the trial equivalent, level is the applicable substantive law to mandate re present for all purposes, intents and of a decisions, calls is to be found in court see motion recall appel- the mandate at the Calderon, 549-50, 523 U.S. at 118 S.Ct. at Parke, See late level. Burns v. (“the of appeals recognized courts are (7th Cir.1997) (“Appellate courts an power have inherent recall their agree a post-judgment motion under mandates, subject to review for abuse court, Fed.R.Civ.P. in the district discretion”). So, there real is no differ equivalent the court of event, in that respect. ence And in peals is to say, a motion to recall —-which subject Rule is itself to the limitation the mandate —is a ‘second or successive’ 81(a)(2), provides that the 2244(b).”). application purposes apply rule does not corpus pro to habeas why That is it is no surprise that the two ceedings to the extent practice that the together. often travel In one Calderon statutes, them forth in is set and the AED- day petitioner appellate filed in PA is such statute. mandate, court a motion to recall the The other difference between day the next he filed in relief and mandate an appel- recalls is that motion containing the same generally Calderon, late court grounds has less discretion to allegations. regarded “ean be as a second or at 1496. U.S. at 2244(b),” now, application §of purposes have before us Mobley case that we “[ojther- regarded in this Court his motion should be so because filed wise, day petitioners mandate on the same he could evade the to recall the bar of appealabil- against presented for a certificate claims applied relitigation to us ity to the district court’s denial prior application, against or the bar litiga- 60(b) motion, and both of those his Rule in a presented tion of prior claims judgment denying him Calderon, attacks the final application.” 523 U.S. at omitted). (citations habeas were based the same relief Be- Mobley, 306 F.3d ground allegations. petitioner’s attempt a to reopen cause a at 1099-1100. pursuant final to judgment habeas application is to an be treated as to not

To a it does matter wheth- petitioner petition, file a second or successive it ordi- him judgment final gets against er he the narily by the should be dismissed mandate or reopened through a recall 2244(b)(4).10 pursuant § court to through motion. the State a Rule To matter, injury to it does not because the course, if grounds Of the regardless of is the same its interests satisfy stated the Rule motion the weapon is used to inflict procedural which stringent §of requirements & it should matter the wound. To us not (2), petitioner put the should those used, either; which habeas procedure grounds a move governed by cases the same both should be 2244(b)(3)(A) § under for an order from subject to same re- principles and be the appeals authorizing the court of the dis strictions. point court it. The trict to consider today peti rule we announce is that the that those principles conclude We may the get statutory tioner around discussed, and which those restric were or successive out, peti restrictions on second by Supreme tions which were set the 60(b) motion, by tions filing a unless to apply attempts Court in Calderon 60(b). fit within grounds the of the motion one of under Rule reopen judgments final about exceptions § a the two we are to disc petitioner’s That in a 2254 case means reopen uss.11 judgment motion to the - States, -, by district court. their characterized the All Castro v. United U.S. 10. § (2003), pleadings werе filed under 2254 or initial L.Ed.2d 778 the by prisoner, § as such the were labeled Supreme that when a Court held faced with by accordingly. and were the court treated prisoner by proa se federal that is not motion, beyond extend The Castro does not decision § a a district court labeled as nothing filings, initial the Court the mo- cannot without more recharacterize implies said or did in that case tion one under court must by can be evaded restrictions prisoner recharacteriza- inform expedient labeling simple second or succes- contemplated subject being tion will his sub- filings something they sive to be are not. sequent filings to the restrictions on second or filings, provide and it must him may petitioner circumvent re- 11. Nor a opportunity to amend or withdraw an by petitions or successive strictions on second filing. If the court does not do initial filing independent simple expedient of that, filing recharacterized cannot denying judgment action aimed at the purposes motion for counted as a 60(b) (3d generally relief. See Fed.R.Civ.P. against applying the restrictions second or sentence). reasoning and All of the all of Id. at 792. successive motions. discussing fully principles apply we have been designed set independent action what we have here. None of the That is not reopen federal prisoners filing re- aside before us had initial E. paragraph tained begins which “We should be clear about the circumstances reasoning Because Calderon ....”) we address in this case the Court Rule 60 apply does motions as well as meant to recognize a fraud exception or cases, in habeas mandate recalls two simply to reserve for question later the extra-statutory exceptions discussed in whether that exception exists. Since we apply. This decision also means that have before us petitioner one who con- there are two different circumstances or tends that he is entitled exceptions will be to the benefit of a permitted to file Rule 60 motion and fraud exception, we put cannot off until have it treated the district court aas day another the decision of whether one motion under that rule instead of as a non- exists. thinkWe it does. (by appellate pursu authorized A State’s finality interest of a 2244(b)(3)(A)) ant application file judgment denying corpus federal habeas petition.

second or successive relief is not if compelling One circumstance is where the final would not have been obtained but for fraud judgment reopened is recalled or to cor- agents perpetrated upon the feder- judgment rect clerical errors in the itself. al court. permits judg- a Supreme explained, As the Court “[t]he ment reopened fraud, to be for and the interest, can State have little based on savings specifies clause of the rule that it reliance grounds, or other a preserving does not “limit power of a ... mandate not in accordance with the actual set judgment aside a upon fraud by decision rendered the court.” Id. at extent, court.” To that a has 557, true, at 118 S.Ct. 1501. The same is operation field of in habeas cases. The course, judgment reopened when a is exact parameters of the fraud exception 60(a) under Rule to correct a mere clerical may have to be worked out on a case-by- So, mistake. exception. there is that basis, case Supreme but the Court’s cita- The other circumstance in which peti- tion to the Hazel-Atlas decision in its Cal- tioner will be able to file a Rule 60 motion opinion, 557, deron 523 at U.S. at S.Ct. by and have it treated the district court as (The 1501-02, is instructive. Hazel-Atlas a motion under that rule instead of as a decision by is cited commentary non-authorized second or peti- as an illustration of a situation tion is where there upon was fraud involving perpetrated fraud upon a court. fedеral court which led to the denial of the See Fed.R.Civ.P. advisory commit- petition. habeas In its Calderon opinion, note.) tee’s Supreme Court said: “This also is not In the HazeV-Atlas case the Hartford court, case of upon fraud calling into Company had been unsuccessful in question its ef- very legitimacy of judg- forts to obtain a patent ment. for a particular See Hazel-Atlas Glass v.Co. Hart- Co., way pouring glass molds, ford-Empire 238, into 322 U.S. called the S.Ct. 997, (1944).” Calderon, “gob feeding” L.Ed. 1250 method. Its application 557, U.S. at at S.Ct. 1501-02. It faced “apparently insurmountable Patent (eon- unclear whether with those words opposition.” Hazel-Atlas, Office Accordingly, independent relief. such petition may granted not be in an subject 2253(c) actions are require- to the independent except action in the two circum- ment that a appealability certificate of be ob- stances we are about to discuss in which tained before the may appeal- denial of one be may granted be on a Rule motion. ed, judgment and relief from a (finality final be- had become To overcome at 998. 64 S.Ct. rule, the term in those ing by defined company, lawyer opposition, assistance, refused to set days). appeals The court of knowledge his client’s Hartford, in favor of aside its a trade publication an article for drafted After feeding Supreme but the Court reversed. gob that described journal story,” Id. at recounting “this advance as “a remarkable method sordid machine,” held that the and 64 S.Ct. at the Court fashioning glass art correcting term rule was no bar ‘revolutionary devices’ with of the two “one fraud, delay that Hazel-Atlas’ bottle-blowing effect of the workmen skilled bar, not a uncovering the fraud was they orga- since had had been confronted of the fraudulent 240-41, the effectiveness at 998-99. Id. at nized.” in the court of article for Hartford’s case in the fraudulent scheme was The fraud 244- disputed. not Id. at advocacy penned appeals could overblown passing off the at 1000-02. tes- attorney as a fact-based by Hartford’s by a disin- independently written timonial explained in Hazel- Court That was expert the field. terested that, simply a case of a Atlas “[t]his the head of a na- accomplished by having the aid of a wit- judgment obtained with sign the arti- glass tional union of blowers who, on the basis of after-discovered ness though even he purported cle as its author evidence, been possibly is believed to have writing it. Id. nothing to do with had was “a de- guilty perjury,” but instead carefully executed liberately planned published, and phony article was not the Patent scheme to defraud After the article the intended effect. had Appeals.” the Court of Office but Circuit Office, it out to the Patent pointed was 245-46, at 64 S.Ct. at 1001. The Id. patent process. for the issued Hartford di- decision was reversed with appeals of infringement patent then filed a Hartford man- original for it to recall the rections Hazel-Atlas, using which was against suit before, years to it had issued issue date glass. Hartford produce that method to directing the district court new mandate bogus article to the emphasize did not the of Hart- judgment the favor set aside court, against court ruled and that district ford, action that and to take additional at 999. In the at 64 S.Ct. it. Id. at Id. necessary appropriate. was Hart- attorneys appeals court of at 1004. 64 S.Ct. ford, in the had been involved one whom scheme, article directed spurious example Supreme That case is the article, and as the attention to the court’s of the kind of gave Court Calderon it, reference was Supreme put finality “[t]he justifies upsetting Court fraud which reversing not without effect.” Id. criminal that arise when State interests judgment directing standing court and after has been left judgment Hartford, the court in favor of review. Cal- be entered full round of federal habeas copiously deron, from the arti- at 1501- appeals quoted at U.S. teachings that the district other holdings its that and the support cle to 02. With mind, valid, turn erred, we will patent that the was decision court had the Calderon the two circumstances of infringement. particular Id. to the and that there had been us, doing so but before 2254 cases before of hush payment Hartford’s Despite competing to consider the pause we leader who money the national union adopt. have us proach the dissent would article, the fraud phony signed had we inquiry, as dissent’s functional after the ultimately years discovered it, First from the adopted procure understand that it had been used opinion Pepe, Circuit’s Rodwell 324 assure us that it emphasize to dis- (1st Cir.2003), ignores F.3d trict applying courts that when Rule 60(b)(6) only Supreme Court’s Calderon decision. one of the six subdivisions — critically broadly of the Although important they Calderon worded are to rule — “special exercise caution” in decision had been on the books for five order to avoid eviscerating provisions of 2244. years the First released See before Circuit Dissenting Op. at 1297 n. 20. are not opinion, opinion Rodwell does We assured. even mention the Court decision. Calderon, by

Uninformed the First Cir- Special caution is difficult to define and approach requires cuit’s a court to deter- impossible police fuzzy area of every mine in case where a Rule is debating predicate whether the factual of a seeking filed to set aside a judg- primarily” “deals with the constitu- predi- ment whether the motion’s factual tionality of underlying judgment, or primarily cate “deals with the constitution- primarily” “deals with some irregularity or ality underlying state [or federal] previous judgment defect sentence,” primarily conviction or or “deals relief from that earlier judgment. The with an irregularity pro- or defect same is true “special about caution” in curement of the denying habeas determining how to exercise the broad dis- Dissenting Op. relief.” at 1296-1297 cretion that district courts given are Rodwell, 70) (altera- (quoting decide judgments whether to set aside dissent). tions exactly added What grounds “mistake, inadvertence, such primarily” applies “deals means as it to the surprise, or neglect,” excusable myriad predicates arising of factual in 60(b)(1), and because of “newly discovered would, course, type these of cases evidence,” 60(b)(2), as well as for subject litigation. continuous debate “any other justifying reason relief from the result, aAs the states would be denied the 60(b)(6). operation of judgment,” finality” “real finality” judg- “actual sum, the Supreme Court good had ment Supreme says they Court are reasons for recognizing in Calderon that Calderon, entitled to have. at U.S. the nature of habeas cases and the critical 556-57, 118 S.Ct. at 1501-02.12 importance finality and comity inter- Nodding slightly to that inevitable con- they require ests affect special for rules sequence, drops dissent a footnote to them, motions to recall the mandate in 12. judgment fuzziness of the test the denying dissent would a habeas relief set aside adopt by have us is illustrated change inconsistent a by because of in the law is seen way apparently apply dissent it in dissent as one of those “misuses of Rule materially 60(b).'' Yet, two identical circumstances. The Id. at 1300-1301. when it pre-AEDPA dissent discusses our decision of attempt comes to Gonzalez's to use the same (11th Lindsey Thigpen, get judgment denying rule to a habeas relief Cir.1989), concluding without that decision change set aside because a controlling wrong law, apply was require- the certificate the dissent tells us that "Rule is the appeal by petitioner ment to an perfect a who had invoking vehicle change-in-the- 60(b)(6) unsuccessfully sought Rule exception law to the mandate rule.” Id. at grounds. 60(b), from the district assured, court on two One 1308. Rule we are is "tailor grounds of those controlling was that the law made for this situation.” Id. Use of the rule applicable to a claim he non-fitting had raised in his is seen as and even abusive ain denied, petition, initial which was involving had been change situation controlling in the changed way by case, in a intervening decisive an law in one while use of the same rule is Supreme Court Dissenting Op. decision. See just perfect seen as involving another case at attempt by Lindsey 1300-1301. That get change controlling law. by deny attacking him relief. He is courts abide ed to insisting that lower term trial merits of decision—the “merits” is true of the rules. The same those referring to the correctness of the decision the man- a motion to recall analog of level though ground par- of this itself even is the Rule appeal, in a habeas date of limita- ticular decision was the statute judgment deny- re-open motion to tions, an affirmative defense. Besides, Calderon is ing relief. decision, so we must

Supreme Court .follow an at Gonzalez’s Rule motion is we would have regardless of whether already tempt relitigate a claim that has The dis- approach. at a different arrived in a presented prior application been really with the quarrel sent’s rejected, which means it must be dis decision. 2244(b)(1). Court’s Calderon missed under As the Su Calderon, preme explained in “[o]th- Court

Y. erwise, evade the bar petitioners could we have de- apply the lessons We now of claims in a against relitigation presented Calderon, with the two along rived Calderon, prior application.” recognized, that decision exceptions law, at 1500. An error of remaining before us. two habeas cases intervening even one demonstrated decision, does not fit either of the extra-

A. statutory to the rule we have exceptions not contend that Gonzalez does and announced borrowed from Calderon in the final was clerical error there otherwise, today. peti If it were a habeas him habeas re federal judgment re-open could use Rule tioner lief, obtain that or that fraud was used to denying habeas relief based judgment that the His sole contention is judgment. the cor upon implicating a new decision case, wrong, because the subse judgment was rectness of the denial of relief ten, twenty, v. Ben decision Artuz even if that decision came quently released nett, thirty years 148 L.Ed.2d after the had been U.S. rendered, if it had not been made (2000), “properly filed” and even shows that the 2244(d)(2) retroactively applicable to his case.13 misinterpret- language of met, re-open Congress can be used to a new circumstance in which decision 13. judgment, re- otherwise. permitted a final habeas to be but not contrast, position, By opened of a new decision is where under the dissent's because 2244(b)(2)(A) purpose for the first time a claim no what- asserts would serve prisoner seeking to Why that "relies on a new rule of constitutional would a soever. law, retroactive to cases on collateral ever to ob- made a new decision seek benefit from Court, Supreme previ- by the that was permission review a or successive tain to file second 2244(b)(2)(A). ously Gonza- by meeting stringent require- unavailable.” requirements statutory to meet the provision lez’s claim fails when he ments of that exception against filing second or that to the bar a easier time of it would have much 60(b)(6) successive claims. Under the dissent’s motion? under rule position, relief is available that sharply the difference This case illustrates (as case) not new decision in this is approach the restric- even if the how our treats between law, if the and even and how the one of constitutional tions contained in has not made that decision Court would treat them. Under our dissent 2244(b)(2)(A) retroactively applicable on collateral impor- to cases proach still serves an ' says that "Rule review. The dissent It serves to limit the circum- tant function. invoking interven- perfect vehicle for judgment denying habeas in which a stances Dissenting exception.” ing-change-in-the-law re-opened upon a new relief can be based is, thinks that Op. at It if one stringent requirements of decision. If the targeting statutory provision specially statutory provision carefully are that drafted finality. testimony no in with prosecutor Because of former There would Fuller, explained no jury why case there is clerical error who to the he Gonzalez’s allegation rejected Mobley’s of fraud affect had plea and there is no offer. The ing proceeding, Georgia Supreme the dis Court had indicated ear- prior interlocutory denied his Rule lier in the in properly trict court the case Mobley’s plea that if motion. offer came into evi- dence, rejected the reasons that Fuller B. Mobley offer could come as well. See Mobley contends that the fraud State, 810-11, at Ga. S.E.2d at permit exception applies his Rule testimony 152-53. Fuller’s was not for motion to be decided under that rule with the purpose establishing aggravating being subject out to the bar circumstance, but pur- instead was for the However, petitions. second and successive pose weakening mitigat- whatever small his effort to establish that the claim con ing might effect otherwise arise from evi- tained his motion fits within the fraud Mobley’s attempt escape dence of claim that exception falls short. The death plea bargaining. sentence Fuller, who at Andrew testified the sen factual being explored issue was not stage prosecutor tence as the former victim, family whether John case, testimony false gave about the Collins, supported a death sentence for his position family victim’s regarding murder, why but attorney Mobley the sentence should receive for the that time had decided to seek one. begin by murder. putting We that testi transcript stage of the sentence mony in context. testify shows Fuller did not that the vic- (actu stage At the sentence of the trial family tim’s was firm in wanting death retrial), ally Mobley put evidence sentence, jury and he never told the through testimony of one of his attor family’s feelings were a material con- neys Mobley plead had offered to sideration his decision to seek death. sentence, guilty any crime with so Instead, he testified that ques- “without long as the sentence death. How punishment tion” the decision about the clear, mitigating evidence is is not but capital seek case “falls on the shoul- may theory have been that the offer attorney,” ders of the district and while Mobley reflected well on because it demon attorney he had made that deci- willingness strated a to accept pun some sion. Although generally Fuller listened ishment for the cold-blooded murder he family’s to the victim’s views about the had committed.14 If that theory was the it penalty, were, words, their views in his stretch, is a Mobley’s plea because efforts only “a small percentage factor on the simply skin, show a desire to save his own things.” explained scale of He that: “I a willingness to deal in order to avoid the want appreciate them to the fact I penalty full for his crime. make the decision. general- And families Mobley’s To evidence that ly family he had of- this did not want to make —and plead guilty, decision, fered to responded the State they don’t want to come to a narrowing that, the circumstances in which that of remorse. We know because the de- exception throughout should be invoked should be ren- fense was adamant the sentence perfectly meaningless. hearing Mobley dered sociopath that awas who remorse, could not feel and for that reason he mitigation theory The defense's acting was not should not be faulted for in a remorse- Mobley's plead way during offer to showed kind less and after the murder. alone, words, facts “it they’ve through those Fuller’s meeting after what been decision, they glaringly apparent ... don’t want to make that this was a became make, any- to it’s not their decision and I capital proceed case and would [with it] “But, yeah, I listened to way.” He added: more, a case.” But a capital there was give every opportunity I them and want more, that lot cemented Fuller’s decision everybody input to have their a case to insist on a death sentence. big it a decision.” because is—it’s Before the trial Fuller learned that big how a factor point asked blank When Mobley spoken had to another inmate a family’s was in his decision to position Collins, disparaging way about how while sentence, a Fuller answered seek death kneeling, begged had for his life. Then “90, percent that: of the decision” was Mobley Fuller learned had said that he I on the evidence see describes “based get jail, out of wanted to because “he knew and defines the defendant for me.” He job get quick, where he could a real when testified he had concluded the facts jail, got he out of at Domino’s Pizza be- case, in the called for a sentence of death a if vacancy.” cause he knew there was As family his de- although supported and enough, that were not Fuller found out they pressured cision to seek had never jailhouse Mobley gotten had himself a him, him, they actually told “[i]t had symbol. of the Pizza Full- tattoo Domino’s decision, put you.” our trust your we mean, “I I er’s reaction: could not believe cross-examination, Mobley’s coun- During it, I could not believe it.” family, you alluded sel asked: “The Collins this, you one they pushed have never Still, Mobley got there was more. into a case, in this is that way or the other deputy aspirin confrontation with a about Fuller answered: “That is cor- correct?” medication, or some similar and as Fuller always “They He was asked: have rect.” Mobley jury: related it to the “Mr. told judgment at the time as your deferred to deputy looking that he was more and done, correct?,” to which to what should be delivery boy.” more like a Domino’s Pizza he answered: “Yes.” I “Again, Fuller’s reaction: would have testimony stage, at the sentence it, you I know.” Fi- say couldn’t believe simply deny Fuller did not that the views nally, Mobley, Fuller learned that while he factor in family significant of the were a trial, awaiting participated had sentence, he his decision to seek death another inmate. rape of important factors elaborated on the more In all of those statements and actions that had him to his decision. The case led unadulterated Mobley, Fuller saw: “[P]ure robbery mur- against Mobley for the una- nothing pure It was but meanness. strong one. The der of John Collins was my viewpoint.” meanness in dulterated and the re- evidence included a confession determined to seek the death Fuller was killing, covery pistol of the used protection people “for the penalty Mobley had thrown out after the Georgia.” asked the State of When merciless, cold- crime. The murder was point from the whether there was ever blooded, killing stemming execution-style throughout pros- beginning of the case robbery well-planned from a of Domino’s gave serious consid- ecution when he ever Mobley marched Collins Pizza franchise. seeking the or came close to not eration get him to the back where he forced plea accepting penalty death knees, and while Collins was down on his offer, “Never.” When Fuller answered: Mobley him in the begging for his life shot questioned if had ever the deci- range. From asked he of the head at close back penal- sentence, him support made to seek the death its for a death sion he had ty, any Fuller answered: “Never.” claim is A legal without basis. defen- dant has no right constitutiоnal have closing arguments at the sentence prosecutor explain accurately the law Mobley’s trial show that no one stage family, if the victim’s and even such a far- testimony to mean interpreted Fuller’s right fetched constitutional were created it family strong had been that the victim’s would not be available to a feelings for a or that their death sentence already whom there is a final Fuller’s decision to had affected seek one. denying federal habeas relief. family position victim’s about proper penalty the case was never Mobley’s To the extent claim is that by prosecution during even alluded to testimony stage Fuller’s at the sentence was, lengthy closing argument. It how- family’s support about the defrauded the ever, brought up by the During defense. sentence, jury returning into a death closing argument his defense counsel re- claim is not about fraud on the federal jury minded the that Fuller had testified Tjoflat Judge explained courts. As when family that had not demanded the the case was panel, before the the fraud penalty up death but instead had left to Mobley alleges was not committed when penalty Fuller the decision about the to the case was before the federal habeas argued seek. Defense counsel that was a court but earlier when it was before the jury impose reason the should not a death state Mobley, courts. 306 F.3d at 1106 sentence. (“Read (Tjoflat, J., dissenting) the best Those Mobley’s are the facts. Here are possible light, Mobley’s allegations imply allegations that they we stress so far —and that may the State have committed fraud only allegations, supported by are so upon Georgia superior prof proffered much as a affidavit. his Rule fering allegedly testimony Fuller’s false 60(b) motion, Mobley alleges that Fuller during Mobley’s sentencing.”).15 Fuller had told the family victim’s that life with- testify did not pro- federal habeas out parole sentencing option, was not a ceeding, Mobley and the claim wants to using misrepresentation and after that to present at this late presented date was not support secure their for a death sentence during proceeding.16 that The fraud ex Fuller testified before sentencing jury ception to our rule that relief will not family support did his decision to granted to reopen judgments final de death, seek knowing along all nying federal applies habeas relief where family would not supported they have it if the fraud perpetrated on the federal had known life without parole op- was an court and resulted the denial of federal tion. relief, not where the fraud was Mobley’s perpetrated

To the extent on a state claim is court. To the ex that Fuller violated Mobley his constitutional tent is asserting alleged that the rights by defrauding family into giving fraud on the state court violated some agree 15. We testimony with those statements from state trial but that was a different Judge Tjoflat's dissenting opinion Mobley part claim about a different of Fuller’s testi- quote we opinion, beyond in this but mony, proce- and that claim was held to be adopt opinion we do not his in that case or its durally anyway, barred without decision approach. Head, Mobley about its merits. 306 F.3d at J., (Tjoflat, dissenting). 1106 n. 10 Mobley peti- did raise in his federal habeas during tion a claim that Fuller had lied his, during closing arguments he is tion right alleg- constitutional federal forward a new federal con- simply putting edly part prosecutor’s false of the former presented not in claim that was stitutional testimony bywas defense counsel who cit- petition. It is a classic his earlier habeas that testimony jury ed as a reason for the subject to the petition claim impose not to a death sentence. It is no 2244(b)(2) restrictions, this claim which court, wonder that the state trial when meet. It not a claim based does not claim, considering this fraud conсluded made upon a rule of constitutional law new any misrepresentations or false testi- by collateral review retroactive to cases on mony by along Fuller im- these lines was 2244(b)(2)(A). Court, § Nor jury material to the death sentence the newly upon is it a claim based discovered in Mobley, returned this case. See which, the evidence is con- evidence when F.3d at 1099.17 whole, as a would be sufficient sidered reasons, Mobley’s For all of these case convincing evidence by establish clear and not shouting does come within distance of error, that, no rea- but for constitutional the fraud exception outlined the Hazel- factfinder would have found the sonable decision, Atlas where there was “a deliber- offense, underlying applicant guilty of the ately planned carefully executed 2244(b)(2)(B). participated by attorneys scheme” in a only imply do not mean to We proceeding federal to defraud a federal Mobley’s theory fraud involves defect court, 245-46, 322 U.S. at 64 S.Ct. at alleged the court on which the fraud was carefully bogus constructed evidence There can be no fraud un- perpetrated. only presented was to that fed- material, less the falsehood is and here the eral court but which also affected the fed- all, immaterial. After alleged falsehood is 241, 244-47, eral court’s decision. Id. at of a talking aspect we are about one minor Mobley 64 S.Ct. at 1000-02. is not prosecutor’s explanation why about former judgment denying entitled to have the him rejected guilty plea he had a conditional reopened federal habeas relief on this or support offer of the defendant. And the any other basis.18 The district court did sentence, family the victim’s for a death not abuse its discretion in his Rule by prosecutor’s if it even was obtained 60(b) motion. misrepresentation, counted for little making process, decision prosecutor’s VI.

process explained great that he detail to jury. conclusion, a Rule motion seek- reopen in a 2254 or ing mitigating weight defendant’s by § 2255 case should be denied the dis- attempt to avoid a death sentence offer- court, trict unless it is filed to correct if it ing plead guilty slight, is so exists all, (meaning really it is clerical mistake that even undiminished the effect 60(a) motion) hardly register. pursuant And the men- Rule or is filed testified; probably jury We should add that the the time he he was then a state 17. presented Mobley had judge. with evidence that We need not decide how the fact committed six other robberies in the three attorney that Fuller was not an state weeks between his murder of Collins and his proceeding impacts analysis, because arrest for it. it does not matter. Even if he had been the attorney testimony at the time of his Georgia State of contends that even if proceeding, that would not in the sentence responsible there had been fraud is not change our conclusion. longer prosecutor at because Fuller was no remedy agents to a fraud of to me because it leaves Rule 60 more on the federal government perpetrated crediting intact as well as AEDPA. from the denial of a court. No Supreme Court’s decision Calder- seeking reopen motion on, think, I present does not control the 2254 or 2255 relief Calderon, In cases. the Court did not deal §a may proceed unless certificate governed by with Rule 60 and was not is issued. appealability AEDPA; so, Supreme Court did not Mobley’s application (as now) for a certificate of grapple duty we do with the GRANTED, appealability is but the dis give possible the fullest credit to two dif- trict court’s denial of his Rule motion laws, Congress ferent each of which had motion to is AFFIRMED. His recall I approved. agree extending cannot that DENIED, stay and the of exe mandate is inherent-judicial-powers Calderon —an by panel cution entered on his behalf case which the Court acted not Any applications VACATED. other or laws, interpreter as but also as Mobley motions has filed are DENIED.19 supervisor of lower courts—is either nec- essary proper present appeals. or for the application Lazo’s for a certificate of appealability is DENIED. suppose I sharp-edged formula- today’s tion Court makes of Rule 60 will be application for a Gonzalez’s certificate of easier for apply. might courts to It GRANTED, appealability is but the dis- approach easier because this seems to re- trict court’s denial of his Rule quire study less deliberate of the pertinent is AFFIRMED. study accurately to determine motion— EDMONDSON, just motion, Judge, specially pertinent Chief the name of the but (is concurring part’and dissenting part: reality the function of the motion it in illegal claim of detention: a peti- appeals, upon these we are called tion?) required by would be the law —than clarify the interaction of two laws which Tjoflat Judge as it. understands For this Congress approved: has Fed.R.Civ.P. 60 others, reason and I personally like the and AEDPA. I duty As understand our ingenious today’s formulation Court makes instances, give such we must each all the of Rule 60 in habeas cases. See, force that we can. e.g., Reg’l Rail Cases, If I Reorganization policy-maker Act were the for the na- (“A 335, 354, (1974) tion, I might today’s L.Ed.2d 320 embrace Court’s for- too.) wholly (Perhaps new statute will not be read as mulation. Congress or will But, course, even partially amending prior one un- federal judges are not the there a positive repugnancy rightful policy less exists makers of sphere. be- this provisions properly tween the of the new and And we cannot those favor what is con- reconciled.”) (em- what, of the old that cannot be venient over what is true. And added). however, me, phasis agree, truly I required jurisprudentially in a when, AEDPA trump approach Rule 60 case like this one is the degree, gives to the an Congress irreconcilable conflict both the laws has Tjoflat proved arises. I that Judge possible believe has their fullest force. More- over, understanding the better of how I am judges these confident that have the laws interact: his view ability apply Tjoflat seems more correct the law Judge There petition. is some confusion about whether applica- If he did file that filed, Mobley merely lodged tion, denied, with this Court it is because it fails fit within subsequently filing, application without 2244(b). requirements permit a certificate to him to file successive (3) (whether 59(b); has found it: it is hornbook law courts fraud heretofore de- extrinsic), legal misrep- to determine the effect of motions nominated intrinsic or are resentation, or rather than other misconduct of an by the motions’ substance (4) party; void; adverse judgment the their titles. (5) satisfied, the judgment has been re- by I know of the frustrations caused the leased, or discharged, prior or a judg- finality litigation. personally lack of in I ment upon which it is based has been finality am for in criminal keen more the vacated, reversed or otherwise or it is no justice process. today, finality But longer equitable judgment judges rightly impose that we as can prospective application; should have or process finality the criminal is no more (6) any justifying other reason than Rule 60 and AEDPA will allow when from operation judgment. of the faithfully given these each laws are Additionally, under what has been labeled In possible light fullest force. of this 60(b)’s clause,”2 Rule “savings the district join I principle, Judge the results power courts retain the “to entertain an Tjoflat appeals. would reach in these independent action to party relieve a from TJOFLAT, Judge, specially order, judgment, Circuit or ... proceeding or to concurring part dissenting part.1 set aside a upon fraud court.” I. Today, that, majority today holds 60(b) Federal Rule of Civil Procedure exceрtion ground provided with the of the authorizes the district courts relieve 60(b)(3),3 by Rule the Antiterrorism and party to a civil action from the force of a Effective Penalty Death Act of 1996 following final on the grounds: (“AEDPA”), 104-132, Pub.L. No. 110 Stat. (1) mistake, inadvertence, surprise, or 1214, precludes the district courts of the (2) neglect; newly excusable discovered entertaining Eleventh Circuit from Rule by 60(b) diligence evidence which due by [the prisoners motions filed who seek party] could not have ... discovered in judg the vacation of the district court’s corpus time to move for a new trial under Rule ment them habeas relief.4 Gore, join affirming majority 1.I TravelersIndem. Co. v. (11th Cir.1985); judgment Mobley. specially 11 Charles court's I con- Alan Kane, Wright, Mary Kay majority's judgment Arthur R. Miller & cur in the Lazo. majority grant Federal Practice Procedure refuses to Lazo a certificate of (1995). appealability effectively and therefore affirms judgment denying the district court’s his Rule majority recognizes motion. Because the district court 3. The also a second ex- subject jurisdiction ception. lacked matter entertain The district courts retain the author- 60(a) ity the motion—which was a second or succes- under Fed.R.Civ.P. to correct “a disguised judgment. sive motion under 28 U.S.C. 2255 mere clerical mistake” in final Maj. op. appeals at 1278. None of the three as a motion under Rule would affirm —I rule; hence, dissent, however, implicates judgment. before us this I make I from the majority's no further mention of it. decision to affirm in Gonzalez. case, the district court held that it lacked jurisdiction petitioner’s to consider the Rule majority's ability 4. The decision restricts the motion, majority and the affirms. I prisoners to file Rule motions and jurisdiction. by believe the district court had independent preserved actions the Rule’s Therefore, vacate savings Maj. op. I would the district court's clause. at 1277-1278 n. 11. ruling today, and remand the case with instruc- Before such actions were available to See, e.g., petitioners. tion that the district court consider the mo- Buell v. Anderson, (6th Fed.Appx. Cir. tion on its merits. remaining this court must issue certificate relief on To obtain (i.e., (“COA”) pursuant U.S.C. provided pealability grounds (4)-(6)), (2), 60(b)(1), § 2253. pursuant to 28 to this apply

must I dissent from these two respectfully leave to file his U.S.C. holdings supporting the rationale because treats majority motion.5 fundamentally them Aside flawed. or more those based on one any motion this, implementa- I am convinced that as a second grounds unnec- majority’s holdings tion of will (“SSHP”)6 if the even motion con court. essarily add to the workload of this constitutional claim all. The tains no organized This as follows. opinion peti that before the majority also holds majority’s the hold- Part II addresses first appeal the denial of a Rule tioner can 60(b)(3) motion, all motions— ing, the district court or which treats Rule either claim, (ii) 2002) ("An underlying proven if independent action for relief is an the facts the trials, remedy light as a equitable available in civil in and viewed in of the evidence whole, by cluding proceedings which are con would be sufficient to establish that, procedure.”); convincing of ducted under civil rules Hess but for clear and evidence Cockrell, (5th Cir.2002) error, 281 F.3d no factfin- constitutional reasonable (denying petitioner’s independent applicant guilty the habeas der have found the adverse for relief from be underlying action offense. the petitioner the failed to establish "[t]he cause provides: Section 2255 independent pre of an action” elements A or successive must be cer- second Mortgage Co. scribed Bankers v. United provided by panel tified as in section 2244 States, (5th Cir.1970)). Un appropriate appeals to con- the court of otherwise, opinion applies I note this less tain— equally to both motions and inde (1) that, newly prov- discovered if evidence by pendent preserved actions Rule. light en viewed in the evidence as whole, by would be sufficient to establish prisoners 5. Both state and federal must ob- convincing rea- clear and evidence that no appropriate appeals leave of the tain sonable factfinder would have found filing before second or successive collateral offense; guilty of the movant or upon or attacks their convictions sentences. law, (2) a new rule of constitutional made appeals may only grant court of such leave A by cases on retroactive to collateral review satisfy prisoners to state who the criteria of Court, previously Supreme was un- § prisoners 28 U.S.C. or federal who available. satisfy § the criteria of 2255. Section opinion, analyze Throughout this the ef- I ‍​‌​​​‌‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌​​​‌‌‌‌‌‍provides: litigation majority's holdings fects of the on (b)(1) presented 60(b). A in a claim second or involving Although write I often corpus application successive habeas under § 2244’s in terms of how restrictions on suc- presented (filed prior section 2254 that was by petitions prisoners cessive un- state application 2254) shall be dismissed. impact litigation, der will such this (b)(2) presented A in a claim second or generally equally to discussion extends application corpus successive habeas under comparable restrictions on succes- 2255's presented (filed section that was not in a by prisoners sive under motions federal application prior section). §§ shall dismissed un- are While 2244 and 2255 identical, less— textually are of their differences (A) applicant shows that that the claim my consequence analysis no unless I note law, on a relies new rule of constitutional otherwise. made retroactive to cases collateral re- Court, throughout opinion, previ- view the 6. Here and this unavailable; ously phrase peti- or "second or successive (B)(i) predicate factual the claim tions” and the abbreviation "SSHP” refer previously could not have been discovered also or motions under to second through diligence; due exercise of exception of those filed under to disregard [of court] void judg- 60(b)(3) III SSHPs. Part ad- Note, 60(b): ments.” Federal Rule —as Relief majority’s holding, dresses second Judgments, Civil 61 Yale L.J. of a requires the issuance COA be- (1952). n. 3 can fore a Each of the ancient permitted writs re- 60(b)(3) denial of a Rule motion. court’s lief different querela, scenarios. Audita practical implica- Part describes the IV writ, a common law typically “afford[ed] majority’s holdings. tions of the Part V relief to a judgment against debtor a judg- suggests dispositions we should make ment or execution because some defense appeals the three consolidated before discharge arising subsequent to the ren- us. dition of or the issue of the Wright, execution.” Alan Charles Ar-

II. Kane, thur Mary Kay R. Miller & Federal By treating all Rule motions —ex- Practice and Procedure at 394 cept those filed under Rule —as (Civil ed.1995). 2d Coram nobis and co- SSHPs, majority misunderstands the vobis, nature, ram equitable sought both 60(b), history purpose and of Rule fails to remedy fact, appearing “mistakes of not appreciate the functional difference be- record, on the face of the and but for 60(b) motion, tween an and a Rule SSHP judgment would not have been misapplies Supreme and Court’s deci- Commentary, supra, entered.” at 942-43. Thompson, sion Calderon v. 523 U.S. If 538, 1489, under attack issued from 140 L.Ed.2d (1998). Bench, I points King’s address these turn and the former writ was suggest then the course we should follow. if appropriate; any it issued from other court, the latter used. was Black’s Law

A. (7th ed.1999). Dictionary 338 A bill of law, At common “the term court of was equity any review in upon would lie of four in determining decisive whether or not the (1) grounds: “error of apparent upon law power district court had over final judg- (2) record,” “newly discovered evi- Note, History ments and decrees.” and (3) dence,” “the occurrence of new matter Interpretatiоn Federal Rule of of entry or new facts after the of the decree Procedure, Federal Rules 25 Tem- Civil of which make inequitable,” its enforcement (1951) 77, “Note, L.Q. ple [hereinafter (4) or “fraud in procuring the decree.” term, History.”]. During the a court “had Rog- James Moore B.A. Wm. & Elizabeth full power judg- to vacate or revise [its] ers, Judgments, Federal Civil Relief from Commentary, ments.” Rule 60b Effect of (1946). 623, 55 Yale L.J. 677-79 on Other Judg- Methods of Relief from distinctions, Despite their formal howev- (1941). ment, 942, 4 Fed. Rules Serv. er, practical the ancient as a writs matter term, party After the could obtain relief confusing had and “uncertain boundaries.” judgment only through types from a four States, 601, Klapprott United (1) of “remedial devices”: one of the an- (1949). 614, 390, 69 S.Ct. 93 L.Ed. 266 writs, i.e., querela, cient “audita coram no- example, For while the usual rule was that bis, vobis, review, coram and bill[s] querela lay only arising audita for matters (2) review”; in the nature bill[s] of bills subsequent judgment, many courts relief, “[independent an for based action[ ] granted relief this writ for under matters fraud, mistake, accident”; on extrinsic and (3) thereby arising judgment, blurring before power of the court to “[inherent (4) modify judgments”; “[p]ower querela the distinction between audita and (or vobis). the ‘term’ had not judgments 12 James Wm. trol where nobis coram Practice al, Note, Federal History, supra, et Moore’s expired.” Moore ed.2003). (3d 105, at 60 App.-29 § App. courts “read into [Rule ] Other recog- Klapprott Court traditionally pro- writs that had nebulous agreed ... as courts ever that “few nized Id. post-term vided relief.” justify relief circumstances what problem go not unnoticed. This did U.S. at old remedies.” 335 under these substantially amend at 390. today.7 In addition to ed to read as does Rules of enactment the Federal relief, grounds see supra six for providing was, part, an Civil Procedure I, Part caused to eliminate the confusion attempt power does limit the rule of a th[e] of these application the inconsistent independent action entertain form, Rule original In its ancient writs. party judgment, relieve a from a or- 60(b) stated: der, grant relief proceeding, or or to court, terms as upon such On motion actually personally defendant not noti- legal just, may party relieve a or his are 28, U.S.C., provided in Title fied order, judgment, from a representative toor set aside a through against taken him proceeding or upon fraud court. Writs coram mistake, inadvertence, surprise, nobis, vobis, querela, coram audita neglect. The motion shall be excusable of review and in the nature of bills bills time, in no a reasonable but made within abolished, review, are bill exceeding six months after such case procedure obtaining order, or tak- judgment, proceeding judgment by a motion as pre- shall be A motion under this subdivision en. judgment affect the a finality by not these rules or an indepen- does scribed suspend operation. rule does or This dent action. (1) power not limit of a court 60(b). Fed.R.Civ.P. party an action a entertain to relieve 60(b) Rule The drafters modern were order, judgment, proceeding, from a or unconcerned with “the substantive law as (2) year, aside or to set within one judgments.” grounds vacating to the for in Section the Judicial provided 57 or advisory committee’s Fed.R.Civ.P. note U.S.C., Code, 118, judg- Title a (1946). Rather, they sought create against not ment obtained defendant scheme, procedural comprehensive one actually personally notified. that would “remove the uncertainties and Moore, 10[1], supra, App.- at 60 App. historical of ancient limitations remedies face, 60(b) 2. progres- On its Rule seemed preserving while all of the various kinds of sive; parties judg- could seek relief they Wright, relief that afforded.” Mil- resort writs ments without to the ancient Kane, supra, § ler & at 227. The court, regard and without to the term of First, accomplished Rule three tasks. subject period. to the six-month limitations articulating set different time limits for many stripped But courts the Rule of its Second, grounds different of relief.

progressivity through common traditional writs, Rule abolished the ancient “shroud- courts, example, law devices. Some for they mys- in ancient lore and [as were] ed granted motions for more than relief filed note, Advisory tery.” supra. committee’s six after often judgment, months final “ 60(b) Third, their upon power’ based ‘inherent con- Rule four established devices 7. The minor made since 1946 are of no concern us here. amendments parties judg- to seek relief from civil procedure which has been historically ments: know simply independent as an action in 60(b) equity to obtain relief from a may judgment.

1. Rule A party motions. This action judgment seek relief from a should under no upon any circum- ground stances be ancillary enumerated the Rule. confused with com- mon equitable law and remedies or their 2. A Independent party may Actions. 60(b) substitute, modern motion. initiate new action to seek relief from a judgment. may It bring this action in grants When a court relief from a judg- court, just the one that ment by or decree a new trial or rehear- judgment rendered the from which relief ing, or by one of the ancillary common Kane, sought. Wright, Miller & law equitable or remedies or their mod- supra, at 229. substitute, motion, ern it is exercising Statutory 3. procedures. may A court a supervisory power of that court over grant relief from a without its judgment; bill, but the original or resort by as authorized independent action, to impeach for statute.8 fraud, accident, mistake or equita- other powers. Inherent ground ex- ble upon is founded an indepen- pressly permits a district court “to set dent and equitable jurisdic- substantive aside a upon fraud tion.

court.” litigant’s If the “right to make [Rule explanation by best of the interrela- motion is expiration ] lost tionship of Rule independent rules, and the the time limits fixed in these preserved by actions savings the Rule’s only procedural remedy by a new or clause is contained in the Fifth Circuit’s independent action to set a judgment aside opinion Mortgage Bankers v.Co. United upon principles those which have hereto- States, (5th Cir.1970):9 78-79 fore applied been such an action.” Id. procedure

The second contemplated at 81 n. 13. independent is an action to B. order, judgment, obtain relief from a In part appreciate ... because it failed to proceeding. saving clause spe- 60(b) cifically history, this provides majority does not lim- the overlooks the power important the of the court to entertain distinctions between the motions 60(b) important independent such an action. It to em- actions Rule author- phasize action,” “independent as used izes and SSHPs. Like the ancient proce- clause, 60(b) this was meant to refer to a replaced, dures it Rule was never Third, examples 8. There are at least three declaratory-judgment this court.” "the First, category. Rule states that it does statute U.S.C. [28 2202] authorizes the power grant grant not "limit the 'necessary proper of court to ... court to additional or relief actually personally any judgment defendant not relief based on entered under it, 28, provided party notified as in Title and a can seek [such relief] U.S.C. without 1655,” 60(b).” satisfying prescribes requirements the how courts of Rule should Kane, 2869, Wright, supra, deal with absent 11 Miller & at defendants in lien enforce- Second, proceedings. 408. ment the 1946 adviso- ry recognizes committee’s note that “under Prichard, ... the Soldiers' and Sailors’ Civil Act City Relief 9. v. Bonner 661 F.2d (11th (en Cir.1981) banc), of 1940 ... a rendered in ac- 1209 this proceeding governed by may tion or adopted binding precedent [Act] all deci- specified be vacated under certain circum- sions of the former Fifth Circuit handed down upon proper application prior stances to the to October 1981. entirely “alleged concerned with violations permit parties relitigate intended to defenses, rights” during or that occurred to raise federal of claims or merits proceedings resulting petitioner’s have could claims defenses new litigation Rodriguez sentence. v. during the conviction or asserted been (2d Cir.2001). Mitchell, Rather, Rule 252 F.3d aim of case. my panel I grant As noted dissent from court to relief when allow a district opinion Mobley, upon a defective foun- judgment rests dation. types [cogni- of claims [n]either [the] chal- section ] zable under context, habeas applied in the As lenges previous de- court’s a Rule predicate motion] “factual [of nial of relief under 28 U.S.C. irregularity or primarily with some deals Instead, alleges contextu- each that the procurement defect in procedural proceeding al circumstances of the have denying habeas relief.” petitioner’s so much that changed (1st 66, 70 v. 324 F.3d Cir. Pepe, Rodwell afoul conviction or sentence now runs 2003). to an respect The same is true of the Constitution. brought independent action under J., (Tjoflat, at 1101 dis- savings Mobley, clause. See Buell v. 306 F.3d Rule’s (6th Anderson, 491, 498 Fed.Appx. senting). Cir.

2002) of an inde (explaining the elements Thus, [between “the difference SSHP action, of which concern the pendent all and a motion] is defined judgment); integrity of Hess the habeas relief Ab applicant seeks.” (5th Cir.2002) Cockrell, 212, 217 dur’Rahman, 537 U.S. at at S.Ct. (same). 60(b) motion A “seek[s] true (Stevens, J., SSHP, An dissenting). from a court’s final order federal corpus petitions, like is meant all habeas proceeding entered a habeas on one or (al- remedy constitutional violations in” grounds more of the forth the Rule. set beit arise ones which out of facts discov- Bell, 88, 94, Abdur’Rahman v. ered or laws evolved after an initial ha- (2003) 594, 597, 154 L.Ed.2d 501 corpus proceeding), beas while a (Stevens, J., dissenting). Neither proceed- designed proce- motion is to cure ing constitutes a collateral attack on the in an proceed- dural violations earlier underlying or sentence. conviction ing here, a corpus proceed- — ing questions raise about species. An SSHP a different Like —that integrity. proceeding’s corpus, first for a writ upon an SSHP is a collateral attack J., (Tjoflat, Mobley, 306 F.3d dis- applicant’s conviction or sentence. After SSHP, By granting an the dis- senting). AEDPA, may an seek applicant SSHP re- trict “invalidates]” court the conviction “(1) by asserting ‘rel[y] lief claims on Rodriguez, By at sentence. F.3d 198. (2) law,’ rule of new constitutional 60(b) motion, granting a Rule court the rely claims that a rule of constitutional “merely previously the dis- reinstate^] law and are based on evidence that ‘could habeas, the petition opening missed not have previously been discovered way seeking for further ulti- proceedings diligence’ through the exercise of due and mately the to vacate conviction.” Id. petitioner’s would establish factual in- C. Head, 1096, nocence.” Mobley v. F.3d (vacated (11th Cir.2002) 1100-01 In panel holding defense of its that all opinion) (Tjoflat, J., dissenting) seeking (quoting except motions motions — 2244(b)(2)). Thus, 60(b)(3) § U.S.C. are Rule relief—are that can- SSHPs SSHPs in the district court without motion. Id. at not be filed 118 S.Ct. at 1500. Nonetheless, pursuant leave of this court obtained the Court had say this to 2244(b)(3)(A), majority upon § relies about AEDPA’s application when a court decision in Supreme appeals considering Court’s Calderon. grant whether to petitioner’s a habeas motion to recall its case, moved mandate: appeals court of to recall its mandate de- case, § In a a prisoner’s motion to Calderon, nying habeas relief. recall the mandate on the basis of the 545-46, panel at 118 S.Ct. at 1496.10 The merits of the underlying decision can be petitioner’s of the court that decided the regarded aas second or denied his motion. The court 2244(b). plication purposes § thereafter convened en banc to hear oral Otherwise, petitioners could evade the argument question on the of “whether the against bar relitigation of claims pre- panel decision ... would result in a funda- sented prior application, miscarriage justice.” mental at Id. 2244(b)(1), against or the bar litigation at hearing argu- 1497. After presented of claims not in prior appli- ment, court, acting the en banc sua cation, 2244(b)(2). If the court grants sponte, recalled the court’s mandate motion, subject such a its action is affirmed the district court’s decision. Id. irrespective AEDPA of whether the mo- 548-49, at 118 S.Ct. at 1497. (in tion is based on old claims which case Supreme The Ac- Court reversed. 2244(b)(1) apply) would or new ones knowledging that in some circumstances a (in which apply). case appeals court of power has “inherent 553, 118 Id. at at 1500. S.Ct. ],” 549, 118 recall id. at [its] mandate[ majority’s I concur in the at view that once the Court concluded that the en appeals court of issues its in a banc court’s exercise of such mandate power this case, discretion, a petitioner’s Calderon-type case constituted abuse of id. mandate, motion to recall 118 S.Ct. at 1506. As for the which asks court argument appeals State’s that AEDPA to entertain a barred new mandate, claim, recalling claim or revisit an old constitutes an Court held that AEDPA had no application SSHP as defined AEDPA.11 I further Calderon, the court because recalled the mandate on observe that in application, initiative, not on petitioner’s yields petitioner’s own this result: day, petitioner’s 10. next he moved the district court that a habeas for rehear- pursuant ing to Rule to vacate its decision prior must be filed to the court’s issuance granted part mandate, part and denied in of its while the court can still revisit application corpus. for a writ of habeas its decision. See Fed. R.App. P. 41. filing bearing of the Rule motion had no Furthermore, I read Calderon only apply on the Court's eventual decision in to motions to recall the mandate that ask the Calderon, bearing and it has no on our deci- appeals court of to entertain new constitution- today. sions challenges petitioner's al conviction or disagree sentence or ones. I revisit old majority I assume here that insofar as it reads Calderon more majority the concerned with motions to an reconsider broadly. If the motion to recall the mandate pellate decision after the mandate issues. De- challenged integrity, the rather than spite its correct- treatment of motions to recall the mandate, ness, decision, appellate majority opinion that motion the does not ex- would, view, my beyond Calderon to treat plicitly interpret timely peti- Calderon's fall confess, however, rehearing scope. tions for as SSHPs. I believe this I must that such discrepancy might explained by imagine. be fact the motion is difficult to recalling from its mandate If the court denied. bars must be mandate the to recall case) (in mo- petitioner’s on the to revisit a habeas asks the court merely the motion that, the alter the fact once petitioner claims the tion does not the disposition its 2244(b)(1) recalled, court the is litigated, mandate is (unsuccessfully) had man- the occupied motion.12 it before deny position the same that the court requires claims, considering a motion the court new date issued. When motion raises If the to that ad- rule the mandate similar the time-honored to recall deny it under will Calderon, appeals the court of not consider dressed appeals will that a court the a collateral attack seasonably entertaining to not presented is claims not legitimacy or of its integrity the questions in the first instance.13 court district Instead, note 11. judgment. supra See to the authori speak not does Calderon it the same record had before drawing on grant court to a habeas district ty of the decision, the court it rendered its it whеn 60(b). The under Rule relief petitioner reconsidering whether to adhere simply by analogy.14 that it does majority believes way. another or come down to its decision but, blush, may appear at first analogy An least, disappears when one it to me at power The district courts lack broad recalling appellate an mandate compares to recall their appeals possess the courts of provided by attacks the collateral If it does not receive a judgments. actions the independent 59(a) 50(b), 52(b), to Rules pursuant filed clause. savings under its preserves 59(d) (e), under Rule sponte or act sum or no Rules of Civil Procedure mandate, of of the Federal the court By recalling entry days than “10 after Cal- later may reexamine its decision. appeals jurisdic court loses judgment,” man- the court to recall its permits deron the claims and defenses the so on its tion to revisit purpose does date for such if in Part judgment explained resolved.15 As The fact that Calderon initiative. own which, According majority, to the after the court of In a case in 14. 12. issued, Supreme Court appeals mandate whether and when Calderon's lessons about law a new rule of constitutional handed down appellate power a man- an court’s to recall to cases on collateral review made retroactive apply may be used in habeas cases date required appeals the court of that would have question to the with as much force of, rather than a claim in favor to decide when a trial court's Rule whether and AEDPA, query against, petitioner, whether may authority reopen judgment a final Calderon, interpreted permit as Recalling the man- used in a habeas case. grant petitioner's motion to recall court rule) (on reopen date to and alter the final of the new or the mandate the basis deny require thing motion under on the the court to in a habeas case is the closest 2244(b)(1). would bar the court If AEDPA appellate level to the use of Rule motion, petitioner's pe- granting the reopen change a at the final (1) be to titioner's avenues of relief would trial level. pursuant to Rule move the district op. Maj. at 1275. rejecting the to vacate its decision action, claim, (2) bring independent or it receives a motion filed under one 15. After 60(b)'s savings permitted clause. 10-day time more of these rules within this limit, jurisdiction obviously retains the court motion, although law beyond days rule on the motion. A the 10 so, require could would not it to do the court injunctive judgment that contains final petitioner’s attention call may give jurisdiction enforce the court 2244(b)(3)(A) and inform the jurisdiction such relief. Such retention claims, pursue he if he wishes to his new implicated in of the cases now before apply to this court for leave to file must us. in the district court. claims 60(b) II.A, Rule supra, indepen- analogy cannot be drawn between a motion savings clause preserves appellate dent actions recall an mandate and a mo power the court the tion or give independent set aside brought action under 60(b). judgment integrity lacking. whose Rule None of the motions or inde independent pendent and these What actions by authorized provide actions do not is a means for liti- should assert that the petitioner’s underly gants to obtain the district court’s recon- ing criminal conviction or sentence is in sideration of the claims and firm defenses its on the basis of a constitutional claim judgment adjudicated. See Am. Bankers that was or was not included in the habeas Co., Ins. Co. v. Northwestern Nat’l Ins. petitioner litigated to final (11th Cir.1999) 1332, (“[T]he judgment 198 F.3d in the district court. If such 60(b) may law is clear that Rule not be motions or independent present actions challenge claim, used to mistakes of law which constitutional they must be dis appeal[,]” could have bеen raised on direct missed unless the court appeals has implication being that all that the Rule granted leave to file the provides attacking is a vehicle for the in- same district court. The motions to tegrity judgment); Calderon, of the district court’s recall the mandate discussed Gore, Travelers Indem. Co. v. 761 F.2d comparison, adjudication seek the (11th Cir.1985) (“[T]he plaintiff claims; they constitutional do not consti cannot an independent use action as a tute collateral integrity attacks on the issues.”); relitigation vehicle for the appeals’s Hence, the court of judgment.16 (5th Co., Mortgage they Bankers 423 F.2d at 79 differ from true Rule motions Cir.1970) (“The independent action can not and must be denied.

be made a vehicle for relitigation D.

issues.”); Ltd., Donovan v. Sovereign Sec. (2d Cir.1984) (“[Litigants] Having distinguished between SSHPs may proceedings seeking not use 60(b) motions, and Rule I nonetheless or modification of a under majority’s general share the concern that F.R. P. 60 simply relitigate Civ. matters petitioners disguise will the former as the by the original judgment....”); settled latter to avoid AEDPA’s restrictions. We Signals, Kustom Inc. v. Applied Concepts, holding must craft a that curtails this Inc., (D.Kan. 247 F.Supp.2d abuse. (“Like 2003) reconsider, a motion to a mo- here, do not write on a We blank slate tion under op- is not a second virtually all of our sister circuits have

portunity for the losing party to make its addressed this issue.17 Some circuits have case, strongest to rehash arguments, or to held that all Rule motions are up arguments dress previously SSHPs, regardless of the nature of the failed.”). presented. Lopez Douglas, claims See (10th foregoing Cir.1998) What discussion estab (holding F.3d lishes, believe, I legally significant is that a peti without extended discussion that the If the primarily post- district the court of I am 16. concerned with the attack, cases, appeals subject affirms is pre-AEDPA collateral AEDPA but also treat the the attack must be mounted cases from circuits that have not since ruled 60(b), independent court via Rule pre- action on the issue. For collection of the Rule, cases, brought aegis Randy under the or the AEDPA see 2 Hertz & James S. Liebman, implementation exceptions Corpus of one of the Federal Habeas Practice and (4th ed.2001). the mandate rule. Procedure 1533 n. 16 1296 60(b) “conduct[] district courts to (directing was an motion SSHP Rule

tioner’s to whether AEDPA); Shillinger, inquiry 1998 initial determine v. brief Gee under 60(b) motion in U.S.App. in the Rule 43155, *1-*2, allegations 1998 LEXIS WL Cir.1998) (10th col- to a second or successive 2644, (holding, with fact amount *3-*4 60(b) Calderon, attack”); that Rule v. exceptions, Thompson lateral specifying out Cir.1998) AEDPA); (9th 918, under & are SSHPs 151 921 n. 3 motions F.3d 1302, (“We 99 F.3d 1335 McQueen Scroggy, possibility [that] v. not foreclose the do Cir.1996) (6th pre-AEDPA 60(b) in a (holding filed of an motion after denial 60(b) motion is the that “a Rule initial corpus for not petition context would equivalent of a successive the AEDPA’s succes- practical comply have with subject and therefore corpus petition bright petition requirements.... [A] sive analysis”). 60(b) The Sec prejudice a cause with equating line all motions rule hand, Circuit, appears on the other ond petitions would be im- successive habeas 60(b) that motions should have held Rule consists of proper.”). The second subset Rodriguez, treated as SSHPs. never be various, developed gen- if courts that have (“We that a now rule 60(b) 252 F.3d 198 eral, mo- governing Rule rules 60(b) judg under to vacate a motion Rule Winestock, tions. v. 340 See United States is not second or denying habeas ment (4th Cir.2003) (“[District F.3d 206 should successive habeas 60(b) Rule motions as courts must treat any other motion be treated as therefore applications collateral review successive 60(b).”).18 under Rule do so allow failing when relitiga- applicant against to ‘evade bar circuits, however, of our Most sister presented prior applica- tion of in a claims middle, down have come somewhere against litigation tion or the bar claims may that district courts recharac- holding ” (ci- presented priоr application.’ not in a 60(b) under Rule as SSHPs terize motions omitted)); Rodwell, F.3d at tation 70 fall circuits some circumstances. These (“When predicate the motion’s factual subset consists into two subsets. The first constitutionality primarily deals all to hold that of courts have declined 60(b) SSHPs, state or sen- underlying conviction Rule motions are but tence, the motion be treated then should distinguish- not a rule for have articulated petition. as a or successive habeas Boyd v. second ing these devices.19 See United (8th Cir.2002) States, distinguished This situation should be 304 F.3d Edwards, Although unclear. See United States v. other courts have characterized absolute, see, (3d Cir.2002) as position (holding Second Circuit’s F.3d without Rodwell, (stating e.g., at 69 F.3d extended discussion that even if categorically” Second has ruled ”[t]he Circuit petitioner’s court should have construed the SSHPs); 60(b) no Rule are Dun motions 3582(c)(2) motion under 18 U.S.C. Litscher, (7th lap Cir. 301 F.3d motion, 60(b) Rule would nonethe- 2002) ("The ... Circuit[ ] Second in Rodri less Rule have had to recharacterize the n .. did not limit its ruling guez Rule [true Hess, SSHP); at 214- motion as an 60(b) motions]."), I do not wish mischarac- (noting parties^] dispute [as "the to] holding. Rodriguez, I am terize its Even after has com- [the Circuit] whether or Fifth litigant say unable to certain that pletely closed the door motions a purported Second Circuit maintain could whether all habeas cases—in other words aim motion whose true is to chal- such motions must be construed as lenge underlying conviction on constitu- declining petitions,” to decide but grounds. tional under the circumstances which a Rule might proper). may 19. The Third Circuits fall and Fifth also precedent category, this their within but

1297 predicate in which the motion’s factual Rather follow one than the majority’s primarily irregularity with some or deals proach, should recognize we that Rule procurement defect procedural 60(b) survives AEDPA’s wake and fash- judgment denying habeas relief. That ion a holding accounts for the essen- 60(b) classic function of a Rule mo- is the 60(b) tial differences between Rule mo- tion.”); Litscher, 873, Dunlap v. 301 F.3d vein, tions and SSHPs. this I would Cir.2002) (“It (7th only is when Rule 875 adopt substantially the First Circuit’s solu- 60(b) conflicts with AEDPA that is un- tion to our problem: prisoner.”). to a available The must inquiry proceed case by case. our majority today places court The [district] court must examine ground. the middle But rather than near factual set predicate forth in support permit a adopting flexible rule that would particular a motion. When the motion’s district courts to honor AEDPA’s aims factual predicate primarily deals with 60(b) punishing true Rule mov- without constitutionality underlying ants, majority specifies hard-and-fast a sentence, state conviction [or federal] or holding to its that all Rule exception then the motion should be treated as remedy are motions SSHPs: motions second or successive petition. habeas 60(b)(3). upon the court fraud under Rule This situation should be distinguished majority is somehow convinced from one in which the motion’s factual only way a habeas who predicate primarily deals with ir- some seeks Rule relief will to avoid be able procedural or regularity defect in the AEDPA’s restrictions on SSHPs as- procurement judgment serting judgment that the district court’s habeas That relief. is the classic func- sure, fraudulently obtained. To 60(b) motion, tion of a Rule and such “fraud, ... misrepresentation, other motion should be treated within the usu- [perpetrated by respon- misconduct 60(b). al of Rule confines is one ground seeking valid for re- dent]” (citation Rodwell, omitted); F.3d at 70 324 from a lief under Rule States, United Lazo v. 314 F.3d cf. require- without implicating 2244’s (11th Cir.2002) (vacated 573 panel opinion) ments, many of our have sister circuits (concluding purported that Lazo’s Rule Winestock, recognized. See F.3d at was the equivalent motion “functional 207; 876; Dunlap, Rodriguez, 301 F.3d at motion”). of a To fur 199; Thompson, 151 F.3d at courts, guide ther I re Obviously, n. 3. such misconduct is peat I my the observation made dissent legitimacy not the reason to doubt the habeas judgment. Mobley panel:20 of a from the (6), reemphasize party would also I that district relief under subsection must show 60(b)(6) 'extraordinary suggesting should treat courts motions circumstances’ special party delay.” caution. allows is faultless in the Pioneer grant "any relief from a Inv. v. Brunswick Serv. Co. Associates Ltd. 380, 393, beyond P’ship, reason" in Rule U.S. specified other those 60(b)(1)-(5). (1993). Klapprott, See at 614- 123 L.Ed.2d The amor ("[I]n English, simple phousness particu 69 S.Ct. at 390 this subsection makes it clause, language Mobley, larly prone of the 'other for all abuse. reason' As I noted in except specified, particularly the five court that "[a] reasons district uses this 'catch-all' power adequate provision corpus petitioner vests in courts enable allow a habeas judgments to vacate such ac of a new them whenever to obtain review constitutional claim appropriate accomplish justice.”). provisions tion will ... of AEDPA.” eviscerate held, J., justify (Tjoflat, dissenting). "[t]o As the Court n. 3 has 306 F.3d at 1102 reject already has been district court must who petitioner[

[I]f ] jurisdiction. subject lack of matter See files corpus federal denied Winestock, (vacating F.3d at 208-09 presents new constitution- a motion that petition- the district court’s denial of the court, mo- this to the al claims motion and re- purported er’s or considered a “second should tion be manding with the instruction to dismiss ‍​‌​​​‌‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌​​​‌‌‌‌‌‍for corpus petition— habeas successive” Rodwell, jurisdiction); lack of 324 F.3d at 60(b) calls petitioner it a Rule if the even (affirming 73 the district court’s dismissal Likewise, if petitioner the motion. 60(b) of an SSHP dressed as a Rule mo- habe- [br]ought a or successive” “second tion); (holding 301 F.3d at 876-77 Dunlap, questions raise corpus petition as failing that the district court erred aof integrity prior the about 60(b) recharacterize a Rule an court ... then the corpus proceeding reversing with the instruction SSHP stan- filing the under the should review jurisdiction); for lack of United dismiss 60(b) and not for Rule motions dards (5th Rich, States F.3d of 28 U.S.C. the strictures under Cir.1998) (affirming the court’s dis- 2244(b)(2). lack petitioner’s filing missal of the for of (Tjoflat, J., dissent- F.3d at 1101-02 jurisdiction). Winestock, at 207 accord ing); operate Although [would “this test not] (“[A] brand-new, allegation free-standing Rodwell, precision,” mathematical underlying of constitutional error F.3d it elevates substance over form always im judgment virtually criminal will independent the aims satisfies of ap plicate governing the rules 60(b). AEDPA and Rule Like the First arguments Similarly, legal new plications. Circuit, I ... the am “confident that dis- evidence will usu proffers or additional trict courts be able to sift wheat [would] prisoner seeking the not ally signify that is difficulty.” from chaff undue Id. without 60(b) Rule but is relief available under III. attack on continuing instead his collateral (citations sentence.” omit his conviction or 2253(c)(1), § Pursuant to 28 U.S.C. ted)). If the finds that the motion court justice judge Unless circuit or issues a under Rule ground states valid appealability, appeal an certificate of 60(b), If it may the motion. entertain may appeals not taken to the be filing instead determines from— 60(b) motion, Rule parading as a SSHP (A) corpus the final order a habeas case, In § 2244 the latter applies.21 then proceeding which the detention com- may not the district court entertain plained of arises out of issued process court; without our authorization. State SSHP 2244(b)(3)(A). If (B) petitioner U.S.C. proceeding final order un authorization, has obtained our der section 2255.22 discussing passing allegations how a district court should on the merits of the actually cognizable are Rule. under the true SSHPs treat Rule motions and motions, masquerading as Rule I omit petitioner 22. The must first a COA seek might “mixed” reference what termed 22-l(a). 11th district court. Cir. R. If part that are in motions—motions COA, the district court denies a part true Rule motions and in SSHPs. may R.App. seek our Fed. one from court. P. difficulty judge A district should have no Furthermore, 22(b)(1). weeding allegations, disposing out the SSHP a[COA], if the district court and at denies jurisdiction, of them lack of and then docketing appeal [our the time 60(b)’s scope reducing After of Rule motions or post- other fraud, motions, majority judgment holds requirement claims of 2253’s requires petitioners to ob- just COA as to the one final clearly denial of appealing tain a COA before order petitioner’s extends to the efforts, any, relief. I cannot ascribe to if to appeal final court’s holding because lan- plain judgment denying this 2253’s him habeas relief. The no guage requirement. discloses such district court’s on the habeas majority’s can I seemingly Neither ascribe to the deci “final deny reliance the decisions in circuits sion” petitioner’s other that could con not, to, appear support that might challenge but do stitutional to his conviction or Therefore, position. sentence. is the 2253(c)(2) only § decision that seems to A. address; only it is the final order jurisdiction of appeals Courts have “of could serve as the basis for petitioner’s the appeals from all final the dis- decisions of showing “substantial of the of a denial trict 1291. A courts....” 28 U.S.C. right[,]” showing constitutional the he litigant faced with an district unfavorable must to make obtain the COA. In con judgment may timely appeal court make a judgments relief, denying trast to may of that also file a Rule final orders a Rule motion 60(b) motion for relief with district the adjudicate do challenge a constitutional filing court either before or his ap- after to the movant’s conviction or sentence. peal. Immigration Stone v. and Nat- See They state simply that the court Serv., 401, 386, 514 115 uralization U.S. will not exercise discretion to set aside 1537, (1995). 1547, 131 S.Ct. L.Ed.2d 465 judgment it the final entered.23 of the motion [Rule “The denial is ] agree majority’s I the statement appealable separate as a final order....” that the “the” can word sometimes be read Thus, an adjudicating Id. order a Rule circumstances, plural. the certain 60(b) motion, in judg- addition to a final singular can terms be construed in the whole, adjudicating ment the case as a (“[U]nless 1 plural. § 1 See U.S.C. the appealable, an final decision. otherwise[,] context im indicates words Although appellate jurisdiction our ex- singular porting apply include and to decisions, § all final tends to 2253’s COA parties, persons, things....”). several or requirement does mat- not. As a textual obviously “But this rule to is not one ter, requires § 2253 a COA to except applied necessary where it is to proceed- order in a corpus one final carry out the evident intent of the statute.” all ing, not orders. See 28 U.S.C. Missouri, First Bank in St. v. Nat’l Louis 2253(c)(1) (providing that COA re- 640, 657, 215, 44 68 quirement applies to “the order” in final (1924) (interpreting L.Ed. prede 486 proceedings attacking state or con- federal importing cessor rule that “words the sin added)). or (emphasis victions sentences gular may applied number extend and be involving

In habeas cases than one persons things”); more to several or see also order, America, appealable disposing such Toy as orders Inc. v. Consumer Mfrs. (c)(2). [petitioner] has not a re- 22-1 court] filed llth Cir. R. application [our newed for a [COA] court], application by IV, denied length point 23. This is discussed at in Part ... by shall be construed [our court] infra. application as a renewed for a [COA]. Comm’n, brought appeal” an F.2d should have Safety Prods. Cir.1980) (2nd that 1 1 the district court’s dismissal his habeas (holding U.S.C. petition for failure to exhaust reme where it is neces state apply “except does not Bowersox, dies.); Zeitvogel v. of the F.3d sary carry out the evident intent Cir.1996) (8th grant statute”). (refusing a COA legislative AEDPA evinces no petitioner’s denial review the requirement intent apply COA purported motion because Nor does it evince more than one order. merely 2253(c)(2) presented constitutional legislative apply intent to counsel, claim, ineffective assistance showing” requirement of “substantial petitioner previously had raised that does not determine whether order SSHP).24 a motion for lеave to file an I has of a suffered the denial fair of the suggest reading opinions that a right. AEDPA clear- constitutional While in these cases indicates that none of the ly appeals limits of the denial of habeas motions at issue was a true Rule relief, nothing there text motion. Act that narrows the reach of Rule independent collateral attacks the Langford Day, F.3d Thus, interpreting “the” authorizes. (9th Cir.1998), majori- also relied

in in this plural improper would be ty, possible remains as a outlier. In that context, apply final and 2253 must to one case, the petitioner, Langford, convict- was order: the district court’s final capital ed of murder a Montana court petition. on the habeas and sentenced to death. At the time sen- imposed, tence pre- was Montana law

B. hanging injection scribed or lethal join I ma- trial respectfully decline means of execution. The court al- jority’s petitioner reliance on the of our lowed the to choose means decisions execution, he proposition hanging. sister for that the and chose In circuits challenging appeal his sentence on requirement §of 2253 direct COA extends 60(b) and on habeas corpus, petition- federal appeals the denial of Rule relief. unsuccessfully that hanging er claimed vio- courts, By large, the in reaching these Eighth lated the Amendment. Prior to decisions, simply § 2253 assumed that execution, the date for his set “the Mon- 60(b) Moreover, plies in the Rule context. legislature tana hanging, leaving abolished most these involve cases obvious mis- injection lethal means as a of execu- uses Rule inappo- and are therefore tion.” Id. at 1382. The petitioner thereaf- site to circumstances true Rule involving 60(b) ter filed a Rule motion Rutledge motions. See v. United court, alleging change this Montana States, (7th 1041, 230 F.3d 1052-53 Cir. law judg- authorized court to revisit its 2000) (considering appeal de- from the ment his for habeas cor- nial of a Rule motion based on an motion, pus relief. The court denied his ineffective assistance of counsel claim that petitioner and the appeal. filed a notice of petitioner have ... “should raised Horn, motion”); his 2255 Morris v. 187 appeals interpreted pre- court of its (3d Cir.1999) (“What 333, F.3d [the AEDPA precedent, Lynch Blodgett, v. (9th Cir.1993), petitioner] attempting 401, to raise as pre- F.2d 402-03 motion is fact what he clude it entertaining petitioner’s majority Kellogg

24. The also relies on v. in that motion case are unclear from the Strack, curiam) (2d (per F.3d Cir. opinion. court’s 2001). grounds petitioner’s for the appeal probable light [Maynard absent a certificate of Cartwright[, v.] (the pre-AEDPA analog). COA’s cause U.S. 100 L.Ed.2d 372 view, (1988)]”; (2) AEDPA required the court’s a COA judge’s “the trial over in all circumstances which a certifícate jury’s ride of the recommendation of life of probable previously required. cause was imprisonment violated the sixth amend petitioner Because the could obtain neither ment....” Lindsey, 875 F.2d at 1511. cause, probable nor a certificate of COA filing really Because his an SSHP in AEDPA the court did not decide whether 60(b)’s clothing, petitioner pre-AEDPA applied.25 law In other today have to obtain leave of this court words, the denial of a meritorious constitu under presenting before case, required tional claim was in either SSHP to the district court.26 petitioner Lang failed to show this. In Langford, 134 F.3d at by con- ford, trast, view, at least in the Ninth Circuit’s Lynch, The Ninth Circuit’s decision in petitioner’s so-called Rule result, Langford’s basis relied on “sought relief from a of the dis- Lindsey Thig this circuit’s decision in trict denying Langford’s petition court (11th Cir.1989) pen, 875 F.2d corpus....”27 It did assert curiam). however, (per Lindsey, inap- constitutional attacking underly claims posite Langford and to the three cases ing conviction or Consequently, sentence. First, today. Lindsey, we decide a pre- SSHP, his motion was not an and no COA case, AEDPA opportunity we had no to should required have been consider AEDPA’s SSHP restrictions. Ultimately, denial. Langford Second, in Lindsey did not made the same error panel our made in 60(b) motion, though file a true Rule even Mobley: comprehend failed to that he labeled it petitioner as such. The al- Lindsey and cases like it are limited to motion, leged his which challenged the 60(b). misuses of Rule sentence, constitutionality of his death that IV.

(1) “the district court should reconsider his heinous, regarding claim the ‘especially Before suggesting dispositions the atrocious or cruel’ aggravating factor in court should make in these consolidated Langford entirely appeal 25. While clear on this of a district court's dismissal of an issue, I (clothed 60(b) motion) assume that AEDPA’s effective date SSHP aas Rule petitioner fell after the filed his motion but proceed § requires lack of 2244 leave to no appeal. before he filed his notice of The only preliminary COA because it involves Supreme question Court had not settled the jurisdictional inquiry: whether the district requirement applied whether AEDPA's COA concluding court was correct it did not year in this circumstance until after motion, have a true Rule which it Langford of the decision. See Slack v. entertain, course, should before it. Of if a McDaniel, 473, 481, petitioner filed an SSHP in the district court (2000) (holding 146 L.Ed.2d 542 leave, obtaining § after the district "§ applies appellate proceedings ini- court's denial of SSHP would be "the post-AEDPA[,]” underly- tiated even when the corpus proceeding" final order in a habeas ing proceeding was initiated a district 2253(c)(1). petitioner § under pre-AEDPA). appeal therefore need a COA court’s denial. not, majority sug- 26. This conclusion is as the gests, my in tension with observation rely § 27.We requires appeal on the Ninth Circuit's view as to a COA judgment denying petitioner's district court's the content of the claims. Obvi- habeas re- Maj. op. ously, lief. See at 1265-1266 nn. 3-4. An the record of that case is not before us. 2253(c)(2). I now holdings, these Given discuss the it useful to think I appeals, 60(b) litigation will Rule illustrate what majority hold- implications practical from now on. look like first, holds, majority recap, the To ings. filed (with of a motion exception mo- to the Rule respect With 60(b)(3)) under tions, to obtain relief not come majority opinion does

under Rule to this court has denied 60(b), apply must until the district petitioner play into Rule appeal seeks to doing petitioner In and the his motion. relief leave to file court for petitioner cannot the denial. The satisfy requirements so, must he by until he obtains COA unless and 2244(b)(2),meaning that: 2253(c)(2) “sub- making requisite (A) mo- forth [set ... the claim the denial of a constitu- showing of stantial a new rule of constitution- relies on tion] to motions respect right.” tional With law, to cases made retroactive al 60(b)(1), (2), and under Rule seeking relief Court, collateral review (4)-(6), comes immedi- majority opinion unavailable; or previously that was petitioner apply must ately play. into (B)(i) for the claim predicate factual proceed this court for leave previous- not have been discovered could leave, court; such he to obtain diligence; through the exercise of due ly requirements satisfy must 2244(b)(2)(A), (B), In quoted above. claim, (ii) if underlying the the facts short, seeking petitioner whether the light of the evi- and viewed proven un- grounds or on these Rule whole, would be sufficient dence as 60(b)(3), have to his motion will der convincing evi- by clear and establish presenting a the court that he is convince error, that, for constitutional dence but underlying challenge to his constitutional have factfinder would no reasonable or sentence. conviction underlying of- guilty of the [him] found constitu examining his motion for a fense. claim, find none. the court will tional Thus, majority separates petitioner has filed Why? Because the first, Rule groups: motions into two 60(b) motion, motions and such true Rule 60(b)(3)motions, presented are to be claims. See do not contain constitutional second, court; and to the district might Part II.B. The supra (4)-(6) motions, 60(b)(1), (2), the 60(b)(3) only if in the context obtain COA that must be majority treats SSHPs court or this court—the district the 2244(b)(2) § to this court as presented 60(b) motion beyond court—looks the to seek relief the plications for leave to determine wheth to his habeas majority next holds district court. The presented there a consti petitioner er the appeal that can the before the 2253(c)(2)’s § claim that satisfies tutional 60(b)(3) denial of his Rule district court’s requirement. The showing” “substantial motion, he must obtain a COA. This prevail on a motion petitioner will never (6) (2), (5), application 60(b)(1), (4), for a COA must means or under Rule to this showing petitioner’s application of the denial make “a substantial because the to file such a motion will right.” 28 U.S.C. court for leave28 of a constitutional major- jurisdiction. Would Suppose petitioner does not seek U.S.C. 28. 2244(b)(3)(A) court to file in ity require leave of this of a COA as condi- issuance 60(b) court a Rule motion under entertaining appeal, precedent or tion to instead, (5), (6) but, (1), (2), (4), subparts majority permit appeal pro- to would the the district court. The files the motion in explicit I do not find an ceed without a COA? motion, peti- court denies the and the district majority opin- question to this answer invoking appeal, our 28 tioner files a notice of 2244(b)(2)’s alterna satisfy provisions not either of are now off books in the Second, Why? Because Eleventh requirements.29 tive Circuit.30 the majority literally, away taken does requirements, significant part text those with a of a precludes looking beyond petitioner’s right prosecute the court a true Rule by limiting the Rule the court motion. petitioner may The file motion, presented to a “claim[s] consideration of but if the district court denies it, corpus ap a second or habeas whether he will obtain COA and thus plication appeal under section 2254 that was not able to is problemati the denial ” presented in a c.31 prior application....

The this I explain bottom line of discussion is further this second conse- First, majority completely quence opinion twofold. majority examin- (4)-(6). 60(b)(1), (2), ing four hypothetical eviscerates Rule scenarios. These they apply petitioners, As these habeas scenarios consider how court’s decision disposition majority’s provisions ion. these by implication. But "[i]n the Gonza- case, however, implies that a COAmust he showing lez absence of some affirmative of an sought obtained. Gonzalez relief from a ha- only permissible repeal, justi- intention to beas in the district court on a Rule implication repeal by fication for a is when 60(b)(6) ground, namely subsequent that a the earlier and later statutes are irreconcil- decision of the Court cast doubt on Mancari, 535, 550, able.” Morton v. judgment. district court de- 2474, 2482, (1974). L.Ed.2d 290 motion, nied his Rule and Gonzalez Tellingly, Congress was blind to the ef- appeal. disposing filed a notice In of this pro- fects AEDPA on the would have rules of case, majority grants a COA now and then cedure; example, focusing on the relevant affirms the district court because the Rule Procedure, Appellate Federal Rules of Con- fraud, 60(b) motion did not claim which is the gress Appellate amended Federal Rule Pro- only Rule claim remains available cedure 22. See AEDPA Pub.L. No. collaterally attack the denial of a habeas 104-132, Congress 110 Stat. did corpus petition. question I the wisdom of however, 60(b); rather, nothing, to Rule having expend this court its resources decid- simply allowing let the as is. Rule stand ing passing then issue a COA and on the limiting to stand while avail- appeal. merits of Gonzalez’s Instead of tak- AEDPA, ability under of habeas relief Con- ing steps, these it would be more efficient gress did not create an "irreconcilable” situa- simply appeal ground to dismiss the on the nothing tion. There is irreconcilable about longer that a Rule motion is no avail- cutting and at the down on SSHPs same time granted able. Had the court not Gon- permitting the district courts set aside a appeal applied zalez leave to IFP and he not stand under should leave, this court for this such court could have 60(b). ground denied it on the that the frivolous. petitioner's respondent note 31.I here that the (the State) to does not have obtain a COAas a satisfy 29. Nor could a true Rule motion appealing precedent condition a to district comparable § ap- the of criteria (that setting court’s order aside the final order plies prisoners. supra to federal See note 5. relief). petitioner denied the AEDPA § As true Rule motions filed in a requirement only petition- extends the COA to proceeding challenge only § the ers, respondents. not to Section 103 of AED- judgment, no such could motion assert that expressly PA amended the Federal Rules of prisoner's the conviction or sentence was im- Appellate guarantee Procedure to this result. posed "imposed in violation of the Constitu- 104-132, No. See AEDPA of Pub.L. tion or laws of the States.” United 103; 22(b)(3) ("A R.App. Stat. 1214 Fed. P. 60(b)(1), (2), (4)-(6) required appealability certificate of is not writing In Rule off the 30. books, majority holding representative when a state or the Unit- what the seems to be or its AEDPA, Congress, enacting repealed representative appeals.”). is that ed States or its of as to isfies the constitutional-claim element a COA a grant to whether 2253(c)(2) majority affect the the “cannot petition would because denying a habeas a to an grant say to COA as claim is not decision whether Gonzalez’s debatable 60(b)(3) Rule motion. Be- among jurists Maj. a op. order of reason.” two though, concluded, observations begin, fore I the Having majority so un- assumptions the made about must be a then affirms grants COA and the district derlying the scenarios. Finally, in Mobley, court’s decision. the Lazo, looks, majority allega- to as the 60(b) motion a First, Rule that states a 60(b) motion, tions of concludes the Rule SSHP, claim is an new constitutional 2253(c)(2)’s satisfy that such allegations court, lacking jurisdiction to the district COA, grants a showing,” “substantial reject it, must it on that entertain court’s Thus, then affirms the district decision. supra Part II.D. ground.32 See majori of implications the discussing the hypothetical I now to the four sce- turn I refer to true ty’s holdings, 60(b)(3) narios, true involving each a (which by definition do not state a motions motion, the majority’s illustrate how claim). constitutional holding petitioner the must a obtain —that 60(b)(3) Second, a true Rule appeal because the COA order to denial of not contain constitutional motion does play motion—will out. petitioner’s to the challenge state scenario, petitioner In the the first ob- sentence, the be- question conviction or appeal tained the denial of COA habe- the look comes: where would COA court relief, appeal. affirmed on The and we petitioner the determine whether has the petitioner then moved district court showing made “a substantial of the denial 60(b)(3) set pursuant to Rule aside its right?” majority’s of a constitutional The ground decision the that is on decision question answer is that court— to this the through obtained fraud. The district court the court or this court—must look petitioner denied motion. the ob- the Can In deciding else. these somewhere tain a appeal? COA to Our earlier affir- peals, majority chooses to two the examine rejection mance of court’s the district Lazo, example, majori- In sources. petitioner’s constitutional claims should ty allegations petition- examines the prompt the district court this court to motion, brought er’s which was under say satisfy petitioner cannot 60(b)(4) (6).” “Rule and/or 2253(c)(2)’s requirement he make alleged

was an because the denial SSHP showing “substantial of the denial of a rights. merit Finding constitutional no If a COA right.” constitutional were pre- constitutiоnal claims motion issue, it would cast doubt the correct- sented, majority denies a COA. affirming ness our earlier decision Gonzalez, however, majority faces relief; district court’s denial of habeas true Rule motion. Because the hence, issuing a is not cards. COA motion does contain consti- situation, the petitioner Result: In this claims, majority tutional not to looks appeal. never obtains a COA to allegations motion but to the scenario, In the petitioner’s second evidence sought order right. denial of constitutional court’s majority denying that such failed a concludes evidence sat- habeas relief but to obtain court, 2244(b)(3)(A). § pursuant To obtain relief in the there- this fore, petitioner the must first obtain leave of sum, thereafter moved In petitioner COA. The these four scenarios indicate the district court set aside decision 2253(c)(2) § that under the majority’s 60(b)(3), court denied under Rule and the holding, the merit of petitioner’s a the motion. Can a COA issue so that the 60(b)(3) motion will have no bearing on the Yes, petitioner appeal ruling? can the but court’s decision on grant whether COA, issuing the the court—the district 2253(c)(2), COA. Under only ques- the casting court or this court—-would be tion for the COA court is whether on the correctness of the doubt earlier petitioner has “made a substantial showing decision the COA. Absent a of the denial of a right.” constitutional All effectively overruling sound reason for 60(b)(3) that a true alleges motion denial, suggest I that a prior COA COA that petitioner’s adversary obtained a would not issue. Result: In this situa- final through order fraud from the district tion, petitioner never obtains a COA. court. It does not sufficiency address the scenario, granted In the third this court petitioner’s claim that his conviction COA, petitioner’s appeal and while the or sentence was obtained violation of the pending, petitioner moved the dis Constitution. trict court to set aside its decision under 60(b)(3).33 The court denied the mo V. likely

tion. Is a COA to issue? Since the Having expressed my disagreement with previously district court or this court found the majority’s principal holdings, I turn to 2253(c)(2) petitioner that the had made a Lazo, us, Gonzalez, appeals before and showing “substantial of the denial of a Mobley. right” appeal constitutional and the is still I pending, suggest that a COA would issue A. petitioner’s appeal and the of the Rule 2, 2002, January On after Emile Lazo 60(b)(3) ruling proceed.34 Result: had lost his first 2255 motion failed situation, petitioner In this obtains a appeal, obtain a COA to he “filed a COA. brief, motion and which he as be- labeled scenario, In the fourth the district court 12(b)(2) ing pursuant to Fed.R.Crim.P. relief, petitioner denied habeas and the did 60(b)(4), (6), seeking Fed.R.Civ.P. appeal. thirty-day After from the previous district court’s denial of period expired, petitioner filed a Rule his 2255 motion.” Lazo v. United 60(b)(3) motion. The court denied the mo- Cir.2002) States, (11th tion, petitioner applied and the for a COA. (vacated motion, In panel opinion). this if allegations He obtains a COA the of his Lazo claimed that 2253(c)(2)’s petition satisfy § “sub- his conviction is void because showing” stantial criterion. Result: In situation, subject jurisdiction court lacked matter this might obtain impose COA. to hear his case and a sentence jurisdiction appealable separate 33. The district court has to con- final order, though original appeal pend- sider the Rule motion even and if the is still petitioner's appeal ing appeals of the denial it would seem that the court of of habeas pending. Immigration proceedings.”). relief is Stone v. can consolidate the Serv., 386, 401, Naturalization 1537, 1547, (1995) likely 131 L.Ed.2d 465 34. This scenario is not to occur. fact, ("Either filing appeal, years before or after in over 28 on this court and its Circuit, litigant may predecessor also file Rule motion for Fifth I have never en- relief with the district court. The denial of countered it. merely new ar clothing,” insuffi- since it “[made] indictment was because cient[,] jury аllege guments attacking validity [the] to an of failed grand sentence,” not a valid for- and did articulate interstate interference with and/or 60(b). 801, § of Id. at ground under 21 relief under U.S.C. eign commerce Lazo had obtained him “notice” as to 573. Because give failed to file under 28 defend in leave to a successive which he must penalty against Amendment, 2244(b)(3)(A),36 § recog and the panel U.S.C. violation of the Sixth court have nized that the district should jurisdiction to the sentenc- give failed purported his under dismissed Lazo’s ing impose court to sentence 841(b)(1)(A) jurisdiction. panel The by failing motion lack of 21 U.S.C. interstate nonetheless determined “the district interference with establish an court’s denial of successive [Lazo’s] commerce. § 2255 motion a ‘final order’ in a [was] 1, 2002, the district Id. at 573. On March ” proceeding,’ § 2255 and Lazo need explana the motion without court denied at appeal ed a COA to denial. Id. indicating tion—and whether without panel The Lazo’s 575. then construed no filing Lazo’s a true Rule treating was as appeal a motion for a tice COA April or as SSHP. On motion it. Id. at 574-75.37 denied notice appeal35 filed a Lazo proceed leave applications agree panel I with the that Lazo’s Rule forma (“IFP”) and The for a COA. pauperis SSHP, really an motion was application for IFP but granted court jurisdiction the district court lacked to con- denied a COA. Thus, than “denying” sider it. rather implied motion without explanation probable jurisdic- noted

We thereafter —which that the court the motion adjudicating was Ad- tion and the was briefed. on its district should merits —the court dressing question threshold jurisdiction. have it for lack of dismissed the motion Lazo peal posed—whether turn, panel, The should have affirmed be treat- in the district should filed court’s on the or motion under ed as second juris- panel ground that the district court lacked § 2255—a of this court 28 U.S.C. Lazo’s pan- in the affirmative. diction entertain motion. answered view, “really majority motion a suc- ground. Lazo’s should also affirm on that el’s 60(b)’s Instead, the majority in Rule searches for a cessive Court, days previously date of the that was un- 35. Lazo had 60 from the available. district decision to file a notice court's 4(a)(1)(B). appeal. R.App. P. reference See Fed. 2244(b)(3)(A), which states: application Before second or successive 36. 2255 states that Section permitted by this section is filed must be [a] second or successive motion court, applicant shall move in by provided in certified as section appeals appropriate court of for an or- panel appropriate appeals to of the court of authorizing der the district court to consid- contain— application. er the that, (1) newly prov- discovered evidence if light McDaniel, en and viewed in the evidence as a 37. Relying upon U.S. Slack whole, by (2000), would be sufficient to establish 146 L.Ed.2d 542 convincing that no rea- panel clear and evidence that a could not determined COA bar,” "plain procedural sonable would have found the factfinder issue because of offense; i.e., guilty movant Lazo's to seek failure leave from our law, Lazo, (2) petition. made new rule constitutional court to file a successive retroactive to cases on collateral review F.3d 2253(c)(2) showing of “a denial of a con- COA. The district court refused issue a COA, COA, right” and denies a which it granted stitutional but Gonzalez leave to prosecute that Lazo cannot his appeal means IFP. law, therefore, By operation of

peal. Gonzalez then applied to this court for a district court’s decision stands. panel A COA. of the court acknowledged that Gonzalez’s motion is a true Rule B. motion, apparently filed under Rule 9, 1998, September On 60(b)(6),38but, as majority today, does dismissing entered a final order Aurelio denied application. Id. at 1311-13. Gonzalez’s 2254 as time-barrеd The panel did so independently “[f]or two 2244(d)(1) under 28 U.S.C. because the First, adequate reasons.” Id. it held that petition had not been filed within AED- Head, under our decision in Mobley one-year PA’s limitations period. Gonza- (11th Cir.2002) (from F.3d 1096 which I Corr., Dep’t lez v. Sec. 317 F.3d dissented), “all Rule motions in habe- for (11th Cir.2003). 1308, 1310 Gonzalez filed as cases are to be treated as second or timely appeal applied notice of for a Gonzalez, petitions.” 317 F.3d appli- COA. The district court denied his at 1312. alternatively, Second and cation; we did on April likewise 2000. panel found that “extraordinary cir consequence Id. at 1310. The of our deni- Smith, cumstances” Ritter v. 811 F.2d (11th al of a COA Gonzalez was that Cir.1987), requires as a condi district court’s final order stood as if we 60(b)(6) precedent tion to granting Rule appeal. had affirmed it on relief were absent. Id. at 1312-13. Ac cording to the panel, Gonzalez had not 2, 2001, Gonzalez, August On proceeding shown that se, pro asking “filed Rule motion (1) the erroneous had not the district court ... reconsider (2) executed; been there was mini- order him habeas relief on statute delay mal entry judg- between the of the grounds light of limitations of the inter- sought ment the motion to set aside and vening Supreme Court decision Artuz v. (3) motion; filing of the there Bennett, was a close connection between the case (2000), interpreted L.Ed.2d 213 which gave and the case that rise the inter- ‘properly filed’ clause of the tolling provi- vening upon decision 2244(d)(2).” Gonzalez, sion contained was based. 317 F.3d at 1310. As I read Gonzalez’s Id. at 1313. disjointed motion, somewhat handwritten he contends that had Artuz been decided We review district court denials of Rule before the district court ruled on the time- 60(b) motions for abuse of discretion. petition, liness his habeas the court Co., Light Davis v. Fla. Power & 205 F.3d would not have held it time barred. The (11th Cir.2000). n. 4 Applying district court denied Gonzalez’s motion on standard, panel refused to issue a 5, 2002, “[petitioner March because the COA because it not find it “[did] debatable already taken an ha[d] the Elev- among jurists of reason whether the denial Accordingly, enth Circuit. [the no court] of Gonzalez’s Rule motion was an longer jurisdiction Gonzalez, ha[d] over his claims.” abuse of discretion.” timely appeal, Gonzalez filed a notice of panel though at at 1312. The so held even applications proceed IFP and for the district court had not entertained the justifying operation 38. Rule authorizes district court son relief from the "any judgment.” vacate its final other rea- the that attacking He merits of deci- mistakenly thought that is it motion because referring to the to hear it. sion—the term “merits” jurisdiction it lacked itself correctness of decision even decision, panel’s not- with the disagree I particular of though ground this de- by it has been vacated withstanding that limitations, an cision was the statute of case en I taking this banc.' the order affirmative defense. is hornbook law that disagree it because is an Gonzalez’s Rule motion at- it its discretion when court abuses has relitigate claim that al- tempt to reaching decision. misapplies law applica- ready presented prior in a been law; Here, misapplied court the district rejected, COA] tion and [for it erroneously the motion because denied means it must dismissed under to it. I jurisdiction it lacked hear thought 2244(b)(1).... law, An of error even the district court’s therefore vacate by intervening one de- demonstrated case with the in- ruling and remand the cision, fit does not either of extra- consider the mo- that the court struction statutory exceptions the rule we have to tion on its merits. borrowed from Calderon and announced however, majority, issues a COA39 today. court’s affirms the district decision as Maj. op. at 1281. actually had enter if the district majority is motion and What overlooks that Gonzalez’s ruled on its tained seeks, in Gonzalez’s Rule le merits: effect, gal exception to invoke an not contend dоes that there Gonzalez above, I legal rule.40 As state mandate judg- was clerical error final effect our denial of a to review the COA relief, denying him ment federal habeas denying final district court’s decision habe- fraud that or that was used obtain as relief is that district court’s final that judgment. His sole contention is as if affirmed this court. decision stands judgment [denying the [district court’s] relief) is, purposes That for the mandate wrong, was because the rule, order we entered [Supreme COA subsequently released Court] equivalent of a the was the functional mandate ] decision shows that [Artuz 2244(d)(2) language affirming §of this court the district “properly filed” misinterpreted deny him was relief. court’s decision.41 Inc., (11th deciding Imp., whether to issue F.2d 39.In Gonzalez Elecs. Cir.1984), COA, majority petition that our review of a district court’s looks to his habeas denied) disposition (which of a Rule motion is "restrict- the district court had to see ed 2253(c)(2) [the movant’s] to those issues raised in he has made the sub- whether motion.” showing stantial of the denial a constitu- right. According majority, to the tional alleged "guilty petition plea Gonzalez’s 40. mandate rule the law of the case unintelligent, unknowing, interchangea- purposes involun- doctrine are for our tary specific prof- on he Bailey, based evidence has ble. F.2d See Piambino rule,' Cir.1985) ("The (11th Maj. op. majority at 1268. The con- ‘mandate fered.” known, 2253(c)(2)’s nothing specific it is than a more cludes that Gonzalez satisfies application say of the ‘law of the case’ doc- requirement because it “cannot that Gon- Thus, trine.”). referring the mandate among jurists zalez’s claim is not debatable rule, referring I am also to the law case looking beyond Id. I reason.” submit doctrine. Gonzalez's motion—to the habeas evidence of the denial of a con- —for right contrary way looking stitutional to this court's at this Another situation is Fans, deny- decision Coast Inc. v. Midwest to treat the district court's final statement Gulf sum, disagree denied relief on the I the majority’s The district court required decision that a COA is to review ground one-year limitations AEDPA’s the district court’s refusal entertain period petition. barred Gonzalez’s Gonzalez’s motion. I also dissent from its precludes The mandate rule Gonzalez from disposition, which is asking the district court reconsider its ruling court’s stands unreviewable. The request decision he can base his unless message majority sending the is to the exceptions one of the to the rule: judges district circuit they this is that rule,” known, as it The “mandate is deny can with a impunity Rule mo specific nothing application more than a tion. Can it be that the framers of Rule doctrine. “law of the case” This 60(b) governing and the rules peti habeas proposition doctrine for the that stands tions and Congress the that enacted them appellate an on an issue decision must to say meant that a court district decision subsequent be in all trial court followed not to entertain petitioner’s a true Rule 60(b)(6) proceedings presentation the unless motion is I unreviewable?43 think not. intervening change new evidence or an

in controlling the law dictates a different C. result, or decision is clear- appellate the In Mobley, COA, majority grants the a and, ly implemented, erroneous if petitioner’s reviews the collateral motion a injustice. work manifest 60(b)(3), if he had filed it under Rule Bailey, Piambino v. motion, no finds merit in the and affirms (11th Cir.1985) (citations omitted). What court, which denied the motion 60(b)(6) alleges, Gonzalez’s Rule motion in Turpin, it felt bound Felker v. because words, many intervening so is that “an (11th Cir.1996).44 I disagree 101 F.3d 657 change controlling in law the dictates a majority’s holding with the that a Rule suggest different result.” I that Rule 60(b)(3) appealed decision cannot ab perfect invoking is the vehicle however, a I agree, sent COA. with the intervening-change-in-the-law exception to majority my the reasons stated in —for fact, In I can think mandate rule.42 panel’s Mobley, dissent to the opinion, no оther procedural rule is as tailor majority appears F.3d at which the 60(b)(6). adopt made for as Rule motion Mobley’s this situation fails to —that ing petition prior Gonzalez’s habeas as if Gonzalez "attacks the court habeas order federal appealed had relief from state court not the decision. sentence, of conviction and instead of attack- ing underlying conviction sentence majority misapprehends point 42.The this Gonzalez, itself....” F.3d at asserting mean that interven- 1311. ing change in the law is true Rule explained, motion if filed as such. As I have granted 43. Had the district court Gonzalez 2244(b)(2)(A) applies ato collateral attack seeks, State could relief he have petitioner’s on a habeas sentence or convic- pealed obtaining decision without COA. tion, upon change even if rests that attack supra See note 31. hand, 60(b), the law. Rule on the other apply requiring should free of AEDPA's limitations The district court read Felker as integrity when a circuit attacks of a district courts of this to treat all majority judgment. pan- district court’s As the Rule motions as SSHPs. understood, correctly effectively interpretation el Gonzalez’s motion limits this of Felker's motion, holding by omitting a true because it as- motions law, change mandatory serts a but in the because it SSHP treatment. 60(b)(3).45 prior I rests on defective case under

state majority’s upon decision relied concur foundation because court therefore court’s judgment.46 affirming district attorney Fuller’s (regarding facts testimony) that knew or

prior the State my should have known were false. BARKETT, Judge, specially Circuit view, clearly although Mobley alleges dissenting part, concurring part misleading testimony given Fuller’s WILSON, joins: Judge, Circuit in which court, regarding state actions State’s Judge Tjoflat’s with agree completely I testimony in federal habeas Fuller’s exception of his thorough opinion with proceeding infirmities created I Mobley’s agree claim. resolution proceedings. Fur- addition to the state Tjoflat the district court denied Judge thermore, Mobley’s con- motion could be the basis an im- Mobley’s motion on 60(b)(2) strued to also raise under claims Felker interpretation Turpin, v. proper evidence”) or (“newly discovered Cir.1996). (11th I do not 101 F.3d (“any relief from justifying other reason however, that we should nonethe- agree, Thus, operation judgment”). of. Mobley’s affirm court’s denial less Mobley’s claim should be remanded to it fails state a case motion because merits. district court for resolution on the 60(b)(3). under Rule This Court reviews motion for of dis- denial of abuse F.3d Singletary,

cretion. See Booker (11th Cir.1996).

440, 442 Under that stan-

dard, district court where the bases ‍​‌​​​‌‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌​​​‌‌‌‌‌‍interpretation on an incorrect

decision law, we are to remand for further than rather exercise our dis

proceedings by affirming the court’s denial

cretion agree I do not grounds.1 that Mob-

other a claim

ley fails state under

60(b)(3). Mobley argues in his motion evidence

recently discovered indicates judgment denying court’s perhaps premises, majority reaching question as as 45. I read raises on review (1) holdings: jurists if alternative reasonable the trial have come whether court would Mobley's having motion could construe as using proper prem- to the same conclusion 60(b)(3), filed been under motion satisfy ises. That it could have does meritless; (2) jurists if reasonable could con- inquiry as whether would have reached Mobley’s alleging con- strue new the same result. The affirmance of a dis- claim, stitutional it is an SSHP and fails to cretionary decision that on an im- is based 2244(b)(2). meet the criteria merely proper view of facts or the law appellate dis- reflects the court’s exercise of I also concur in the court's decision to Mobley’s rightfully deny belongs trial motion to recall the mandate cretion that 00-13980, Head, Mobley v. No. proper and Mob appellate role court. The review ley’s stay his execution. motion to permits proceedings a remand for further discretionary when a has been decision Co., 1. As stated in Collins v. Seaboard C.R. premises. made on false discretionary A decision that within falls Id., (11th Cir.1982). bounds, permitted but is based on false

Case Details

Case Name: Gonzalez v. Secretary for the Department of Corrections

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 26, 2004

Citation: 366 F.3d 1253

Docket Number: 02-12054, 02-12483 and 02-14224

Court Abbreviation: 11th Cir.