In re ABU-ALI ABDUR’RAHMAN, Movant. ABU-ALI ABDUR’RAHMAN, Petitioner-Appellant, v. RICKY BELL, Warden, Respondent-Appellee.
Nos. 02-6547/6548
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: December 3, 2003 Decided and Filed: December 13, 2004
Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 04a0428p.06 Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 96-00380—Todd J. Campbell, District Judge.
ARGUED: Bradley A. MacLean, STITES & HARBISON, Nashville, Tennessee, for Petitioner. Joseph F. Whalen III, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Respondent. ON BRIEF: Bradley A. MacLean, STITES & HARBISON, Nashville, Tennessee, William P. Redick, Jr., Whites Creek, Tennessee, for Petitioner. Joseph F. Whalen III, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Respondent.
OPINION
COLE, J., delivered the opinion of the court, in which MARTIN, DAUGHTREY, MOORE, CLAY, GILMAN, and GIBBONS, JJ., joined. SILER, J. (pp. 11-16), delivered a separate dissenting opinion, in which BOGGS, C. J., BATCHELDER, ROGERS, SUTTON, and COOK, JJ., joined.
R. GUY COLE, JR., Circuit Judge. Petitioner Abu-Ali Abdur’Rahman appeals the district court’s denial of his motion for relief from that court’s earlier judgment denying his petition for a writ of habeas
This case requires us to determine whether and under what circumstances a prisoner may use Rule 60(b) of the Federal Rules of Civil Procedure to seek relief from a judgment dismissing a habeas petition. At issue, in particular, is whether and to what extent the availability of Rule 60(b) is restricted by the limits imposed on thе filing of second or successive habeas petitions by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub.L. No. 104-132 §§ 101-107, 110 Stat. 1214, 1217-26 (codified as amended in
Today, we eschew both of those extremes and align ourselves with those courts that use a functional approach to determine when a district court may entertain a Rule 60(b) motion filed by a prisoner who seeks to vacate a district court’s judgment denying him habeas relief. Although a petitioner should not be permitted to use Rule 60(b) to avoid AEDPA’s limitations on second or successive habeas petitions, the solution to that problem is not to bar Rule 60(b) motions in the habeas context altogether. Instead, we hold that a Rule 60(b) motion should be treated as a second or successive habeas petition only if the factual predicate in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction. In сases which the factual predicate in support of the motion attacks the manner in which the earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b), the motion should be adjudicated pursuant to Rule 60(b). See Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir. 2003).
Because Abdur’Rahman’s motion does not constitute a direct challenge to the constitutionality of his conviction, the motion is not the functional equivalent of a second or successive habeas petition. Rather, Abdur’Rahman’s motion challenges the procedural basis on which the district court’s judgment denying his habeas petition rested and, therefore, should be adjudicated pursuant to Rule 60(b). For that reason, we REVERSE the district court’s order of dismissal and REMAND petitioner’s motion to the district court for consideration as a motion brought pursuant to Rule 60(b).
I.
The history of this case is long and circuitous. See Abdur’Rahman v. Bell, 537 U.S. 88 (2002) (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted); Abdur’Rahman v. Bell, No. 3:96-0380 (M.D. Tenn., Dec. 17, 2002). Therefore, we set forth only the procedural background relevant to resolving the issues before us.
In 1988, on direct appeal, the Tennessee Supreme Court affirmed Abdur’Rahman’s conviction and death sentence for first-degree murder. His attempts to obtain post-conviction relief in the state court system were similarly unsuccessful. In 1996, he filed an application for a writ of habeas corpus in the federal district court and advanсed several constitutional claims, two of which raised troubling questions. The first claim challenged the competency of petitioner’s trial counsel; the second contained serious allegations of prosecutorial misconduct.
After hearing evidence on both claims, on April 8, 1998, the district court entered an order addressing each claim. First, the district court granted relief as to the ineffective assistance of counsel claim. Having found trial counsel ineffective, the district court granted habeas relief as to petitioner’s sentence and vacated the death sentence, although the court denied relief as to petitioner’s murder conviction. On appeal, however, a divided panel of this Court reinstated the death sentence, finding that although Abdur’Rahman’s
Second, the district court held that the prosecutorial misconduct claims were procedurally barred because Abdur’Rahman failed to seek discretionary review of those claims in the Tennessee Supreme Court and the time for doing so had expired. Abdur’Rahman, 999 F. Supp. at 1080-83. However, on June 28, 2001, while the appeal from the district court’s denial of Abdur’Rahman’s habeas petition was pending – and in response to the United States Supreme Court’s decision in O’Sullivan v. Boerckel, 526 U.S. 838 (1999) – the Tennessee Supreme Court promulgated a rule clarifying that criminal defendants were not required to appeal to the Tennessee Supreme Court in order to be deemed to have exhausted all available state remedies concerning claims of error for federal habeas corpus purposes. See Tennessee Supreme Court Rule 39 (“TSCR 39“). TSCR 39 states in relevant part:
In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to ... file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim.
As the Tennessee Supreme Court stated, TSCR 39 was designed to “clarify that denial of relief by the [Tennessee] Court of Criminal Appeals shall constitute exhaustion of state remedies for federal habeas corpus purposes.” See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies.
TSCR 39 made it clear that the district court’s refusal to consider Abdur’Rahman’s prosecutorial misconduct claims on the merits rested on faulty ground because Abdur’Rahman was never required to seek discretionary review of his prosecutorial misconduct claims in the Tennessee Supreme Court, as the district court believed he was. Petitioner alerted the district court to this error on November 2, 2001, when he filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from the district court’s judgment of April 8, 1998, which dismissed his prosecutorial misconduct claims as procedurally barred. Petitioner’s motion did not assert any new constitutional claims and did not rely on any newly discovered evidence. It merely asked the district court to vacate its order on the ground that its procedural bar ruling was based on the erroneous assumption that Abdur’Rahman was required to appeal his prosecutorial misconduct claims to the Tennessee Supreme Court.
Relying on McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996), which declared that “[w]e agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition,” the district сourt characterized petitioner’s motion as a second or successive habeas corpus application, governed by
II.
We turn to the question before us: Is a motion for relief pursuant to Rule 60(b) equivalent to a second or successive habeas petition pursuant to AEDPA? After addressing that question we will apply the answer to Abdur’Rahman’s case.
At the other end of the spectrum, several courts of appeals, as well as the dissent in our case, have concluded that a Rule 60(b) motion in a habeas case must always – or almost always – be treated as a second or successive habeas petition pursuant to AEDPA. See, e.g., Gonzalez v. Sec’y for Dep’t of Corrs., 366 F.3d 1253 (11th Cir. 2004) (en banc) (holding that Rule 60(b) motions must always be treated as second or successive habeas petitions except where the final judgment is recalled or reopened to correct clerical errors in the judgment itself or where there was fraud upon the federal court which led to the denial of the habeas petition); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (holding that the successive petition restrictions contained in
But neither of the categorical approaches just described is satisfactory. The wholly unrestricted approach taken by the Rodriguez court fails to appreciate the potential for some Rule 60(b) motions to subvert AEDPA’s objectives. But the rigid approach, adopted by the Eleventh Circuit and the dissent here, prohibits too much. It fails to appreciate both the significant functional differences between Rule 60(b) motions and habeas petitions and that those differences mean that many Rule 60(b) motions will not run afoul of AEDPA.
Rule 60(b) motions and habeas petitions serve different purposes. Contrary to the dissent’s assertion, Rule 60(b) does not permit parties to relitigate the merits of claims, or to raise new claims that could have been raised during the litigation of the case or in the initial habeas petition. Rather, the purpose of a Rule 60(b) motion is to allow a district court to reconsider its judgment when that judgment rests on a defective foundation. The “factual predicate [of a Rule 60(b) motion] deals with some irregularity or procedural defect in the procurement of the judgment denying habeas relief.” Rodwell, 324 F.3d at 70.
A second or successive habeas petition “is a different species.” Gonzalez, 366 F.3d at 1292 (Tjoflat, J., concurring in part and dissenting in part). Like an initial habeas petition, a second or successive habeas petition seeks to invalidate the state court’s judgment of conviction based on a constitutional error. Pursuant to AEDPA, a “second or successive” habeas petition is meant to address two specific types of constitutional claims by prisoners: (1) claims based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” and that was “previously unavailable;” and (2) claims that rely on a rule of constitutional law and that are based on evidence that “could not have been discovered previously through the exercise of due diligence” and that would establish the petitioner’s factual innocence.
Moreover, the dissent offers no reason for permitting Rule 60(b)(3) motions based on fraud while prohibiting motions brought pursuant to the other provisions enumerated in Rule 60(b). This is puzzling, because fraud is not the only reason to doubt the integrity of a habeas judgment. Rule 60(b)(1), for instance, states that a federal judgment may be reconsidered and vacated if it was based on “mistake, inadvertence, surprise, or excusable neglect.” As the Second Circuit noted, the integrity of a habeas judgment might be called into doubt pursuant tо Rule 60(b)(1) where the respondent engaged in unfair surprise by failing to notify the petitioner of the witnesses it planned to call in the habeas hearing. Rodriguez, 252 F.3d at 199. The dissent in our case offers no reason why fraud on the court would be a valid basis for a Rule 60(b)(3) motion, while such a claim of unfair surprise, filed as a Rule 60(b)(1) motion, would have to be characterized as a second or successive habeas petition. “In each situation, the motion challenges only the etiology of the habeas judgment itself,” not the constitutionality of the underlying conviction. Rodwell, 324 F.3d at 70. Accordingly, it makes sense to treat both motions pursuant to Rule 60(b).
There is another crucial distinction between Rule 60(b) motions and habeas petitions. Granting a second or successive habeas petition invalidates a prisoner’s conviction and/or sentence. Granting a Rule 60(b) motion has no such effect. It merely reinstates the previously-dismissed habeas petition, opening the way for further proceedings. Abdur’Rahman, 537 U.S. at 94 (“[T]he difference [between a second or successive habeas petition and a Rule 60(b) motion] is defined by the relief that the applicant seeks.”) (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted). Although a Rule 60(b) motion is “undoubtedly a step on the road to the ultimate objective of invalidating the judgment of convictiоn,” the motion itself does not seek that relief. Rodriguez, 252 F.3d at 198. As the Second Circuit logically pointed out, “[t]he fact that the Rule 60(b) motion contemplates ultimately the vacating of the conviction is shared with every motion the petitioner might make in the course of pursuing his habeas – motions to compel disclosure or quash the respondent’s discovery demands, motions for extension of time to answer the adversary’s motion, motions to be provided with legal assistance, motions for summary rejection of respondent’s contentions,” and even motions for relief from judgment grounded in fraud, which the dissent here would recognize. Id. at 198-99. But this fact does nothing to convert the motion into a second or successive habeas petition.
Having distinguished between motions pursuant to Rule 60(b) and second or successive habeas petitions, we are mindful that prisoners might attempt to subvert AEDPA by dressing second or successive habeas petitions in Rule 60(b) garb. The solution to this problem, however, is to adopt a conceptual framework that curtails the potential for abuse while permitting Rule 60(b) motions in appropriate circumstances. To that end, we adopt the First Circuit’s approach to this issue:
The inquiry must proceed case by case. The [district] court must examine the factual predicate sеt forth in support of a particular motion. When the motion’s factual predicate deals primarily with the constitutionality of the underlying state [or federal] conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion’s factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b).
This approach is functional in nature. Whether a motion will be treated as one pursuant to Rule 60(b) or as a second or successive habeas petition will depend not on the label affixed to the motion, but on its substance. Id. at 71. It is only when a petitioner presents a direct challenge to the constitutionality of the underlying conviction that the petition should be treated as a second or successive habeas petition. But if there is no such direct challenge and the petitioner instead challenges the integrity of the district court opinion for one of the reasons provided in Rule 60(b), then the district court must treat the motion as one pursuant to Rule 60(b). Compare Hamilton v. Newland, 374 F.3d 822, 824 (9th Cir. 2004) (holding that habeas petitioner’s motion for reconsideration of denial of habeas relief must be treated as motion pursuant to Rule 60(b) where petitioner sought to have district court reconsider its prior ruling that his habeas claims were barred by the one-year limitations period under AEDPA), with Rodwell, 324 F.3d at 71-72 (holding that petitioner’s motion for relief from judgment denying federal habeas relief, brought pursuant to Rule 60(b), was a second or successive habeas petition, and thus was required to be dismissed, because it asked the district court for an opportunity to offer facts – namely, that one of the key witnesses against petitioner was an undercover government agent – that would prove that his state-court conviction for murder was constitutionally infirm), and Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc) (treating a Rule 60(b) motion that raised a new claim that the state failed to disclose exculpatory evidence as a successive habeas petition). This ruling applies with equal force to motions brought in the
Although, as the First Circuit noted, “this test [would not] operate with mathematical precision,” it would preserve the independent goals of both Rule 60(b) and AEDPA, and we should be “confident that ... the district [court would] be able to sift wheat from chaff without undue difficulty.” Rodwell, 324 F.3d at 71.
The holding in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996), that endorsed the rigid approach we have just rejected is hereby overruled.
III.
We now consider Abdur’Rahman’s motion, which asks the district court to vacate its judgment denying his habeas petition on the ground that he was never required to raise his prosecutorial misconduct claims before the Tennessee Supreme Court for exhaustion purposes. That motion does not present a direct challenge to the constitutionality of his state court conviction. Instead, it relates to the integrity of the federal habeas judgment – and specifically, the basis for the district judge’s procedural default ruling. If Abdur’Rahman’s motion were granted, it would simply result in the reopening of the federal habeas proceeding, not the vacation of the state criminal judgment. Accordingly, the motion should be treated as one pursuant to Rule 60(b), not as a second or successive habeas petition.
The dissent erroneously argues that Abdur’Rahman’s motion is a second or successive habeas petition because his prosecutorial misconduct claims – by virtue of being deemed procedurally defaulted – were adjudicated “on the merits.” But that argument privileges the form of the judicial disposition over the substance of the motion, and once again ignores the key functional differenсes between Rule 60(b) motions and second or successive habeas petitions. That procedural default rulings are typically considered rulings “on the merits” does not change the fact that Abdur’Rahman’s motion does not directly seek relitigation of claims already adjudicated. Rather, Abdur’Rahman challenges the procedural basis on which the district court’s judgment concerning his prosecutorial misconduct claim rested. See Hamilton, 374 F.3d at 824 (holding that habeas petitioner’s motion for reconsideration of denial of habeas relief must be treated as motion pursuant to Rule 60(b) where petitioner sought to have district court reconsider its prior ruling that his habeas claims were barred by the one-year limitations period under AEDPA).
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence [the party] could not have ... discovered in time to move for a new trial under Rule 59(b); (3) fraud ... misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is nо longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of judgment.
Abdur’Rahman has characterized his motion as one pursuant to Rule 60(b)(6), which permits relief from judgment for “any other reason justifying relief from the operation of judgment.” This provision has been called a “reservoir of equitable power” to do justice in a particular case. Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 106 (4th Cir. 1979). For that reason, there is concern for abuse of a Rule 60(b)(6) motion in habeas proceedings – perhaps more concern than there is with other Rule 60(b) motions whose nature is more easily ascertained. But Rule 60(b)(6) has been narrowly interpreted and courts have stressed that such motions should only be raised in exceptional or “extraordinary circumstances.” Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 863-64 (1988); Pierce v. United Mine Workers, 770 F.2d 449, 451 (6th Cir. 1985). Furthermore, this provision and other provisions of Rule 60(b) are mutually exclusive – that is, if the reason offered for relief from judgment could be considered under one of the more specific clauses of Rule 60(b)(1) -(5), then relief cannot be granted under Rule 60(b)(6). Liljeberg, 486 U.S. at 863 & n.11.
Here, the only other provision pursuant to which Abdur’Rahman’s motion might conceivably be brought is Rule 60(b)(1)’s provision for relief from judgment when there has been a “mistake.” But in this case, it simply stretches logic to say that the district court made a “mistake” when it held Abdur’Rahman’s prosecutorial misconduct claim unexhausted based on his failure to appeal it to the Tennessee Supreme Court. Although TSCR 39 – which states that defendants do not have to appeal to the Tennessee Supreme Court in order for their claims to be considered exhausted for habeas purposes – is a clarification of preexisting law, review by a state supreme court was, before TSCR 39’s promulgation, an available state remedy that defendants traditionally pursued because all available state remedies had to be exhausted prior to the claims being eligible for habeas review. See Adams v. Holland, 330 F.3d 398, 405 (6th Cir. 2003) (holding that a discretionary appeal to the Tennessee Supreme Court is not required for federal exhaustion purposes under TSCR 39).1
Indeed, prior to TSCR 39’s promulgation, federal courts interpreting Tennessee law required appeal to the Tennessee Supreme Court as part of the habeas exhaustion requirement. See, e.g., Jones v. Jones, 76 F. Supp. 2d 850, 856-57 (E.D. Tenn. 1999); Cole v. Campbell, 703 F. Supp. 657, 659 (M.D. Tenn. 1988); Layman v. Russell, 300 F. Supp. 430, 431 (E.D. Tenn. 1969). These district courts – and the district court in this case – did not make a “mistake” in requiring defendants to appeal to the Tennessee Supreme Court, because they simply had no reason – based on United States Supreme Court law, state law, and federal court precedents – to know otherwise. Indeed, this presumption was later ratified by the Supreme Court in O’Sullivan. See O’Sullivan, 526 U.S. at 847-48.2 But TSCR 39 eventually clarified that such an appeal was not, in fact, required. As such, Abdur’Rahman’s motion is properly characterized as a Rule 60(b)(6) motion. It does not relitigate the merits of his prosecutorial misconduct claim, but rather asks the district court to reconsider its judgment, which was based on a defective foundation: namely, an unclear state of the law, which was later clarified. This analysis does not chart new legal territory, as the dissent suggests. Federal courts have applied Rule 60(b)(6), as opposed to a Rule 60(b)(1) “legal mistake,” where a state supreme court clarifies existing state law. See, e.g., Heirs-At-Law & Beneficiaries of Gilbert v. Dresser Indus., Inc., 158 F.R.D. 89, 92 (N.D. Miss. 1993).
Rule 60(b)(6) has no specific time limitation within which it must be filed, save that it be brought within a “reasonable time.” Fed. R. Civ. P. 60(b)(6). The reasonable time standard has been interpreted to depend on the factual circumstances of each case. Smith v. Sec’y of Health and Human Svcs., 776 F.2d 1330, 1333 (6th Cir. 1985). Here, Abdur’Rahman has satisfied the reasonable time requirement. TSCR 39
As noted above, Rule 60(b)(6) should be used only in “extraordinary circumstances.” Liljeberg, 486 U.S. at 863-64. Although TSCR 39 is not accurately characterized as a change in law, but rather a clarification of the law, the “extraordinary circumstances” analysis here is most analogous to that which would be used if we were confronting a change in law, and so we apply that analysis here. A change in decisional law is usually not, by itself, an extraordinary circumstance. Agostini v. Felton, 521 U.S. 203, 239 (1997); Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). There must be a change in decisional law “coupled with some other special circumstance” to grant relief under Rule 60(b)(6). Id. at 524.
In this case, relief pursuant to Rule 60(b)(6) is permissible for two reasons. First, TSCR 39 does not constitute a clarification in decisional law such that Agostini even applies or such that an “extraordinary circumstance” is even required. The decisional law in this case is comprised of the precedent governing claims of prosecutorial misconduct. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963). If the district court had reached the merits of Abdur’Rahman’s claims and determined that no prosecutorial misconduct took place, but then the Supreme Court altered Brady such that the district court’s holding was wrong, there would be no grounds for relief pursuant to Rule 60(b)(6). But TSCR 39 does not similarly alter decisional law; it clarified the law underlying the district court’s decision not even to reach the merits of Abdur’Rahman’s constitutional claim. Cf. In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989) (granting relief pursuant to Rule 60(b)(6) when Congress passed a statute, which capped referee fees in bankruptcy proceedings, shortly after the parties reached a settlement to pay fees that were four times the cap; court rejected the argument that unexpected changes in statutory law are similar to situations in which a party decides not to appeal but then gets a “second bite at the apple” by free-riding off of a change in decisional law resulting from an unrelated party’s successful appeal, which then alters the case law).
Second, even if TSCR 39 were considered a clarification of decisional law, there is an “extraordinary circumstance” here, stemming from the nature of Abdur’Rahman’s “default.” As is well-established (although sometimes muddled by courts), two types of procedural barriers might preclude federal review of claims in a habeas petition. The first type, procedural default, is a judicially created rule, grounded in fealty to comity values and requiring federal courts to respect state court judgments that are based on an “independent and adequate” state procedural ground. Coleman v. Thompson, 501 U.S. 722, 732 (1991); Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (establishing a four-part test for determining whether a procedural rule is an independent and adequate state ground). In procedural default cases, the state court or courts reject a direct or post-conviction appeal because the defendant failed to comply with some state law or rule concerning timeliness, pleading requirements, sufficient evidence, or the like.
The second type of bar, exhaustion, is similarly grounded in respect for state court procedures, but it is federally mandated by AEDPA, see
This second type of procedural barrier, forfeiture by failure to exhaust, is what the district court relied upon in dismissing Abdur’Rahman’s prosecutorial misconduct claim. But exhaustion and procedural default are distinguishable in an important sense. A defendant could fail to exhaust a claim without procedurally defaulting if he could return to the state courts to exhaust. Alternatively, as in this case, the defendant could fail to exhaust without defaulting if a clarification in procedural law indicates that he has already taken the necessary action to еxhaust. That is, forfeiture by failure to exhaust entails a legal fiction, of sorts. The state court has not rejected an appeal based on a state rule violation; there is no declaration
But, pursuant to TSCR 39, Abdur’Rahman was never required to raise his claims before the Tennessee Supreme Court for exhaustion purposes. Accordingly, the speculation supporting the district court’s default finding crumbles. It then becomes impossible to see how the State of Tennessee, the federal court, or the dissent here has any interest in upholding the district court’s ruling in this case, which contravenes the State of Tennessee’s express policy concerning the exhaustion of state remedies. Indeed, enforcing the district court’s judgment in this case would disserve the comity interests enshrined in AEDPA by ignoring the state court’s view of its own law. See Stringer v. Black, 503 U.S. 222, 235 (1992) (“It would be a strange rule of federalism that ignores the view of the highest court of a State as to the meaning of its own law.”).
IV.
We hold that the district court erroneously treated petitioner’s motion as a second or successive habeas petition. Because Abdur’Rahman’s motion is properly characterized as a motion pursuant to Rule 60(b)(6), we REVERSE and REMAND the case to the district court to consider whether the motion should be granted, based on the potential merit of Abdur’Rahman’s prosecutorial misconduct claims previously found to have been procedurally defaulted.
In re ABU-ALI ABDUR’RAHMAN, Movant. ABU-ALI ABDUR’RAHMAN, Petitioner-Appellant, v. RICKY BELL, Warden, Respondent-Appellee.
Nos. 02-6547/6548
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 13, 2004
DISSENT
SILER, Circuit Judge, dissenting. In analyzing the issue presented by this appeal, an important issue of federal law post-ADEPA, as to which the circuits are currently split, I begin from the dual propositions that (1) because Abdur’Rahman in his Rule 60(b) motion does not advance any new claims (and merely seeks reconsideration of the court’s earlier procedural default ruling as to the bulk of his prosecutorial misconduct claims),
On the other side of the coin, however, it is clear that in considering whether a second petition is “second or successive” for purposes of § 2244(b)(1), substance and not form is determinative. A subsequent filing can be considered a “second or successive habeas corpus application” even if not expressly labeled as such. “In a § 2254 case, a prisoner’s motion . . . [respecting] the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application . . . .” Calderon v. Thompson, 523 U.S. 538, 553 (1998).
The ultimate issue, of course, is just when is a numerically second petition or filing indeed “second or successive” for purposes of § 2244(b)(1). Beyond the faint contours set up by Slack and Martinez-Villareal, the boundaries of the statute are admittedly indefinite. But despite the uncertainty on the fringes, I find this much to be clear: a Rule 60(b) motion that seeks to relitigate a procedural default ruling already once adjudicated in a first habeas petition is “second or successive” under § 2244(b). To hold otherwise would be effectively to eviscerate AEDPA.
In arguing against the applicability of § 2244(b)(1), Abdur’Rahman places heavy reliance on Slack and Martinez-Villareal, as well as a third case in which the Supreme Court found § 2244(b) inapplicable, Calderon, 523 U.S. at 538. It is true that such cases can be read to support the proposition that, at least in some cases, the statute does not mean what it says. The problem, however, is that Slack, Martinez-Villareal, and Calderon are all easily distinguished and in fact help Abdur’Rahman’s cause little, if at all.
Calderon arguably is not even a “successive” petition case. There, in the course of holding that the court of appeals had abused its discretion in recalling its mandate, the Court found § 2244(b)(1) inapplicable because in recalling the mandate the court of appeals had expressly stated that it had acted on the basis of petitioner’s first habeas petition. Calderon, 523 U.S. at 554. The court of appeals had not “consider[ed] matters presented in [the] later filing.” Id. In basing his Rule 60(b) motion on the Tennessee Supreme Court’s newly-promulgated Rule 39, Abdur’Rahman, however, asked the district court below to consider matters going beyond those included in his initial petition.
Slack and Martinez-Villareal are of only slightly greater relevance. In both of these cases, the dismissal of the petitioner’s first habeas petition was not “on the merits.” Slack, 529 U.S. at 489 (first habeas petition dismissed as unripe); Martinez-Villareal, 523 U.S. at 645-46 (first habeas petition dismissed for failure to exhaust). Despite Abdur’Rahman’s efforts to characterize the dismissal of his petition for procedural dеfault as a purely procedural dismissal that failed to reach the merits of his claim, we have
In the final analysis, it is this fact - that Adbur’Rahman’s prosecutorial misconduct claims were adjudicated “on the merits”- that makes this case different. The question may fairly be asked: if a Rule 60(b) motion that seeks to relitigate a claim already adjudicated “on the merits” in a first habeas petition is not “second or successive,” what is? Abdur’Rahman was entitled to an adjudication; he got it. It is not the province of this court to sit in judgment of Congress’s prohibition against rehashing claims - only to recognize it.1 The fact of a “subsequent legal development” does not change this. AEDPA cannot be whimsically cast aside. We cannot rewrite the language of the statute to provide for a secоnd merits adjudication when the statute clearly says otherwise. If the statute is to mean anything, it must mean that when a petitioner has had certain claims in a first habeas petition adjudicated “on the merits,” a subsequent filing seeking reconsideration of that adjudication is “second or successive.”
While my view rests primarily on the recognition that Abdur’Rahman’s claims have already been once adjudicated, I note that it is supported by other considerations. For one, AEDPA’s structure and history support my conclusion. In AEDPA, Congress dramatically altered the habeas corpus statute governing successive petitions.2 Most significant was the removal of any reference to “adjudication” on the “merits.” This textual change suggests that Congress intended to relax the standard for what is considered a “petition,” and consequently - by inference - what is considered a “successive” petition.
A vital tenet is that AEDPA’s limitations on habeas relief trump Federal Rule of Civil Procedure 60(b). See, e.g., Pitchess v. Davis, 421 U.S. 482, 489 (1975) (“Since the exhaustion requirement is statutorily codified, even if Rule 60(b) could be read to apply to this situation it could not alter the statutory command.”); Dunlap v. Litscher, 301 F.3d 873, 875 (7th Cir. 2002) (Posner, J.) (“Th[e] provisions [of AEDPA] are clear and bar a district court from using Rule 60(b) to give a prisoner broader relief from a judgment rendered by the court in a prisoner’s federаl habeas corpus . . . proceeding. Otherwise AEDPA’s limitations on collateral attack would be set at naught.”);
Although acknowledging the well-established rule that a party may not bring a claim under Rule 60(b)(6) if his claim could be considered under Rule 60(b)(1), the majority dismisses the applicability of Rule 60(b)(1), declaring that “the district court in this case [] did not make a ‘mistake’ in requiring defendants to appeal to the Tennessee Supreme Court, because they simply had no reason–based on United States Supreme Court law, state law, and federal court precedents–to know otherwise.” The majority also holds, however, that Rule 60(b)(6) is applicable here because “the district court erroneously treated petitioner’s motion as a second or successive habeas petition.” In other words, the majority holds that Rule 60(b)(6) is applicable because the district court had previously made a legal error – failing to recognize that even prior to the promulgation of TSCR 39, Tennessee law did not require criminal defendants to raise their claims before the Tennessee Supreme Court to meet AEDPA’s exhaustion requirement. But “[t]his Court has recognized a claim of legal error as subsumed in the category of mistake under Rule 60(b)(1).” Pierce v. United Mine Workers of Am., Welfare & Retirement Fund for 1950 and 1974, 770 F.2d 449, 451 (6th Cir. 1985) (citing Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir. 1983)) (emphasis added); accord United States v. Reyes, 307 F.3d 451, 456 (6th Cir. 2002). To borrow the majority’s phrase, it “simply stretches logic” to construe the district court’s decision as anything other than a “mistake.” And yet the majority does just this without providing a reason to explain how ignorance alone–however justifiable–transforms a court’s legal error into something other than a “mistake” for the purposes of Fed. R. Civ. P. 60(b).
The majority nonetheless offers justification for the district court’s failure to know the legal exhaustion rule by noting that “TSCR 39 eventually clarified that such an appeal was not, in fact, required.” Here, the majority seems to agree with Adams v. Holland, 330 F.3d 398 (6th Cir. 2003), in which a panel of this court declared that “Rule 39 clarifies existing law rather than changing the law.” Id. at 405 (emphasis added). While the distinction between clarification and change may seem trivial, the Adams court recognized that the difference is important in determining the retroactive effect of Rule 39. Because it deemed Rule 39 a mere clarification–that is, Rule 39 made clear what Tennessee’s rule always had been–the Adams court found that the rule applied retroactively. Conversely, the Adams court suggested, if Rule 39 effected a change in the exhaustion requirement, then it is unclear that Rule 39 would apply retroactively in general, in turn raising doubts as to whether Rule 39 would apply to Abdur’Rahman in particular.
Despite calling Rule 39 a “clarification,” for purposes of determining whether Abdur’Rahman’s claim may be brought under Rule 60(b)(6), the majority undertakes the “extraordinary circumstances” analysis ordinarily utilized when the claim is that there has been a change in the law. While the majority opinion states that it is reasoning by analogy, it is difficult to see how such an analogy would apply unless the “clarification” substantively “changes” the very rule in question. The majority therefore seeks to maintain the “clarification” nomenclature of Adams, while infusing it with the meaning of “change.”
We are left then with two inescapable options: either Rule 39 merely clarifies what had always been the law, in which case the district court made a legal mistake in holding that Abdur’Rahman had failed to exhaust his claim because he did not raise it before the Tennessee Supreme Court, or Rule 39 changed the
Finally, while acknowledging that a change in the law alone does not constitute an extraordinary circumstance sufficient to permit relief under Rule 60(b)(6), the majority nonetheless finds that “the district court’s presumption about Tennessee’s procedural rules is the factor that renders the promulgation of TSCR 39 an ‘extraordinary circumstance,’ permitting possible relief pursuant to Rule 60(b)(6).” The majority therefore asserts that the promulgation of what is essentially a “new rule” does not constitute an extraordinary circumstance for the purposes of Rule 60(b)(6), but the district court’s misapplication of the “old rule” does meet that requirement. Applying this reasoning, it is difficult to see how any change in the law will fail to meet the extraordinary circumstance test.
One other oddity about Adams deserves comment. Whether Rule 39 “clarified” Tennessee law or “changed” it, there can be little doubt that it effectively overruled O’Sullivan v. Boerckel, 526 U.S. 838 (1999). At issue in O’Sullivan was whether the option of seeking discretionary review in the Illinois Supremе Court represented an “available” procedure for exhaustion purposes under AEDPA. See
I do not believe that Abdur’Rahman’s Rule 60(b) claim survives AEDPA’s bar on second or successive habeas petitions; however if it does, then it should be construed as a claim arising under Rule 60(b)(1), and dismissed as untimely.
The majority’s holding today conflicts with not only our own precedent, see McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996) (“We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition . . . .”), but also with that of our sister сircuits. See, e.g., United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003); Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir. 2002); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (per curiam). Of particular relevance is the Eleventh Circuit’s recent decision in Gonzalez v. Secretary for Dep’t of Corrections, 366 F.3d 1253, 1281 (11th Cir. 2004) (recognizing two narrow exceptions - for clerical errors and fraud - to the rule that a Rule 60(b) motion is “second or successive” and
Contrary to petitioner’s suggestion and to the observations of some courts, this conclusion does not mean that a claimant who brings a Rule 60(b) motion for fraud on the court will have it re-characterized as a “second or successive habeas corpus application” under AEDPA. In the first place, it is not Rule 60(b) that empowers litigants to seek such relief. That authority stems from “the inherent power” of a federal court, which allows it “to vacate its own judgment upon proof that a fraud has been perpetrated upon the court.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Rule 60(b) acknowledges the point when it says that “[t]his rule does not limit the power of a court . . . to set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(b). AEDPA nowhere purports to alter this “‘historic power of equity to set aside fraudulently begotten judgments,’” Chambers, 501 U.S. at 44 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 235, 245 (1944)), even assuming Congress has the power to do so.4
In the second place, the conclusion that a fraud-on-the-court claim genеrally should not be treated as a “successive” petition has much in common with the Supreme Court’s conclusion that a petitioner may bring a second petition if the first one was dismissed as unripe (Slack) or if the first petition was dismissed for failure to exhaust (Martinez-Villareal). Much of the historical debate over habeas corpus litigation has turned on the question of whether res judicata should apply to state court criminal proceedings or federal court habeas corpus decisions - and those res judicata principles contain exceptions that are relevant here. Historically, res judicata did not apply to habeas petitions. See Fay v. Noia, 372 U.S. 391, 423 (1963) (invoking “the familiar principle that res judicata is inapplicable in habeas proceedings”); see also Sanders v. United States, 373 U.S. 1, 7-8 (1963). But in the 1966 amendments to
This background principle not only helps to explain these exceptions to the “successive” petition bar (and potentially others, though only those consistent with AEDPA), but it also shapes the rule I would follow today and explains why I would reaffirm the essence of our decision in McQueen, 99 F.3d at 1335. AEDPA announces a “modified res judicata” bar because it does permit “successive” petitions, but only in two discrete settings - new rules of constitutional law and claims of actual innocence - and, even then, only after specific requirements have been met. See
For the foregoing reasons, I would affirm.