Lead Opinion
OPINION
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 corpus. Abdur’Rahman v. Bell,
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 the 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 28 U.S.C. §§ 2244, 2253-2255, 2261-2266 (2000)). Some courts have held that any motion labeled as one pursuant to Rule 60(b) remains fully viable in the habeas context and unaffected by the strictures of AEDPA. Others — including the dissent in this case — would treat any motion based on one or more of the grounds enumerated in Rule 60(b) as a second or successive habeas petition, even if the motion contained no constitutional claim at all.
Today, we eschew both of those extremes and align ourselves with those courts that use a functional approach to
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 habe-as 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, 5B7 U.S. 88,
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 advanced 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 counsel’s performance was deficient, Abdur’Rahman had not been prejudiced. Abdur’Rahman v. Bell,
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,
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’Rah-man was required to appeal his prosecuto-rial misconduct claims to the Tennessee Supreme Court.
Relying on McQueen v. Scroggy,
II.
We turn to the question before us: Is a motion for relief pursuant to Rule
The courts of appeals that have heretofore grappled with this question have provided divergent answers. The Second Circuit seems to be the only court of appeals to have ruled categorically that a motion pursuant to Rule 60(b), brought after a district court’s ruling on an initial habeas petition, is not a second or successive ha-beas petition, and that such motions should always be treated as any other motion pursuant to Rule 60(b). Rodriguez v. Mitchell,
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.,
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,
A second or successive habeas petition “is a different species.” Gonzalez,
The dissent would hold that, with the exception of the ground of fraud provided in Rule 60(b)(3), AEDPA precludes the district courts of this Circuit from entertaining Rule 60(b) motions filed by prisoners seeking to vacate a district court’s judgment denying them habeas corpus relief. To obtain relief on any of the remaining grounds — Rule 60(b)(1), (2), (4), (5), or (6) — the petitioner would have to fashion his claim as a second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2), and must apply to this Court pursuant to 28 U.S.C. § 2244(b)(3) for leave to file it. In other words, the dissent would treat any motion based on one or more of the grounds enumerated in Rule 60(b) as a habeas petition, even if the motion contained no constitutional claim at all. But that approach plainly ignores the significant functional difference between Rule 60(b) motions and habeas petitions, discussed above.
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 to 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,
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,
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 set forth in support of a particular motion. When the motion’s factual predicate deals primarily with the constitutionality of the underlying state [or federal] conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the- motion’s factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b).
Rodwell,
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,
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,
The holding in McQueen v. Scroggy,
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 Ab-dur’Rahman’s motion is a second or successive habeas petition because his prose-cutorial 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 differences 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 Ab-dur’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 prosecuto-rial misconduct claim- rested. See Hamilton,
Rule 60(b) authorizes the district courts to relieve a party to a civil action from the force of a final judgment on the following grounds:
(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 no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of judgment.
Here, the only other provision pursuant to which Abdur’Rahman’s motion might conceivably be brought is Rule 60(b)(l)’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,
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.,
As noted above, Rule 60(b)(6) should be used only in “extraordinary circumstances.” Liljeberg,
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 Agosti-ni 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 prosecu-torial misconduct. See, e.g., Brady v. Maryland,
Second, even if TSCR 39 were considered a clarification of decisional law, there is an “extraordinary circumstance” here, stemming from the nature of Abdur’Rah-man’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,
The second type of bar, exhaustion, is similarly grounded in respect for state court procedures, but it is federally mandated by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), (c), and requires petitioners to give state courts a “fair opportunity” to assess petitioners’ claims. O’Sullivan,
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 exhaust. 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 by the state court of an independent and adequate state ground to which the federal court must defer. Instead, the federal court makes a presumption that the state court would reject the appeal on independent and adequate state grounds if the petitioner tried to file it. But, by declaring the claim forfeited, the federal court saves the petitioner and the state court from respectively preparing and rejecting a futile filing. The federal court then views the claim through the lens of procedural default to determine whether there is cause and prejudice to excuse the default. In short, the crux of forfeiture by failure to exhaust is that the federal court’s default decision rests upon a presumption about what the state court would do, rather than respect for what a state court actually did. Accordingly, here, 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 district court held that Ab-dur’Rahman’s prosecutorial misconduct
But, pursuant to TSCR 39, Abdur’Rah-man 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 dis-serve the comity interests enshrined in AEDPA by ignoring the state court’s view of its own law. See Stringer v. Black,
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’Rah-man’s prosecutorial misconduct claims previously found to have been procedurally defaulted.
Notes
. In O’Sullivan, the Supreme Court held that absent an express pronouncement by the State, a federal court must require a habeas petitioner to exhaust all state remedies, including discretionary review before the state supreme court, in order to satisfy federal ha-beas exhaustion requirements. See O’Sullivan,
Contrary to the dissent's assertions, Adams v. Holland did not "effectively overrule!] O’Sullivan v. Boerckel,
However, the Supreme Court noted that such a ruling may, in fact, result in a greater burden on the state supreme courts.
We acknowledge that the rule we announce today — requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State — has the potential to increase the number of filings in state supreme courts. We also recognize that this increased burden may be unwel*184 come in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas court. See, e.g., In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases,321 S.C. 563 ,471 S.E.2d 454 (1990); see also State v. Sandon,161 Ariz. 157 ,777 P.2d 220 (1989). Under these circumstances, Boerckel may be correct that the increased unwelcome burden on state supreme courts disserves the comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that the remedy is unavailable.
Id. at 847,
As noted in the above quotation, the O’Sullivan majority cited approvingly to South Carolina's statement regarding habeas exhaustion, In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases,
[I]n all appeals from the criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of 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 Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.
Id. at 849,
In response to O'Sullivan, the Tennessee Supreme Court promulgated TSCR 39, modeled after the South Carolina Rule, to clarify that a request for discretionary review was in fact, not required for the purposes of exhaustion. This is the essential holding of Adams,
Given the Tennessee Supreme Court’s adoption of a rule specifically endorsed by the majority opinion in O’Sullivan for a purpose specifically advocated by a concurring justice, it is surprising that the dissent believes Adams somehow overrules Supreme Court precedent.
. For this reason, the dissent in not persuasive in stating that the district court made a "legal mistake” in ruling the petitioner failed to exhaust. Like the Supreme Court in O’Sullivan, the district court merely applied a presumption that a state supreme court wishes to be the first court to review a habeas petitioner’s claims. See O'Sullivan,
Dissenting Opinion
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 prosecu-torial misconduct claims), 28 U.S.C. § 2244(b)(1) is the controlling subsection; and (2) the scope of this subsection is less expansive than the text suggests. We know this latter proposition to be true because, though a literal reading of the statute would hold that any petition filed after a first would be “second or successive,” the Supreme Court has rejected such a view. See Slack v. McDaniel,
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
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,
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,
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,
In the final analysis, it is this fact — that Abdur’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
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 AED-PA, Congress dramatically altered the ha-beas corpus statute governing successive petitions.
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,
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 habe-as 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 1971,
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,
Despite calling Rule 39 a “clarification,” for purposes of determining whether Ab-dur’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 law, in which case Adams is wrongly decided, and the majority should make clear that it is overruling that precedent. If the first option is true, then, to the extent Rule 60 motions are now deemed permitted post AEDPA, Abdur’Rahman’s claim properly arises under Fed.R.Civ.P. 60(b)(1) rather than 60(b)(6)-and the motion should accordingly be dismissed as untimely. If the second option is true, then the change in law raises grave questions as to whether retroactive application of the rule is appropriate in this case.
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,
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,
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.,
In the second place, the conclusion that a fraud-on-the-court claim generally 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 habe-as corpus decisions — and those res judica-ta principles contain exceptions that are relevant here. Historically, res judicata did not apply to habeas petitions. See Fay v. Noia,
That Congress is trying to impose a “modified res judicata rule” on habeas corpus applications helps explain why some repeat habeas corpus petitions are “successive” and why others are not. The doctrine of res judicata has several well-established exceptions to the bar against subsequent actions, each of which accounts for the Supreme Court’s prior decisions in this area as well as the appropriate treatment of a fraud-on-the-court motion. Slack and Martinez-Villareal, for example, are consistent with the res judicata principle that a dismissal without prejudice does not bar a second action on the same claim. See Restatement of Judgments (Second) § 20(2) (“A valid and final personal judgment for the defendant, which rests on the prematurity of the action [as did the dismissal on ripeness grounds in Martinez-Villareal ], or on the plaintiffs failure to satisfy a precondition to suit [as did the dismissal on exhaustion grounds in Slack], does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.”); see also Martinez-Villareal,
This background principle not only helps to explain these exceptions to the “successive” petition bar (and potentially others, though only those consistent with AED-PA), but it also shapes the rule I would follow today and explains why I would reaffirm the essence of our decision in McQueen,
For the foregoing reasons, I would affirm.
. The majority asks “how the state of Tennessee, the federal courts, or the dissent here has any interest in upholding the district court’s ruling in this case.” But I submit that this is the wrong question. This court is not called upon to weigh the various "interests” involved here — only to enforce the plain language of AEDPA.
. The predecessor version of § 2244(b) read: When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States ... release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus on behalf of such a person need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ ....
28 U.S.C. § 2244(b) (1994) (emphasis added).
. The Second Circuit recently reaffirmed this "functional” approach in Harris v. United States,
. The majority states that “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).” Not true. As explained above, the exception for fraud does not derive from the Rule itself but from a court's inherent power.