In Re Abu-Ali Abdur'rahman, Movant. Abu-Ali Abdur'rahman v. Ricky Bell, Warden

or mitigating tory circumstances which would employees attitudes about women justify a distinction between general, either the not an inference that setting supervisor’s conduct or the workers’ treat salary Birch’s motivated sex- Swage ment of the workers. See Jones v. based discrimination. A claim of sex- Co., lok No. 2004 WL based discrimination cannot succeed based (Ohio 2004). *4 App. July Birch has on such diffuse discriminatory evidence of attempted satisfy this standard animus, where the record contains no evi- pointing to the male workers in the Front connecting dence discriminatory atti- Department highly Office who are more any employment tude to involving decision However, compensated. these male em plaintiff. v. Reeves Sanderson Plumb- different, ployees perform substantially Prods., Inc., ing 133, 141, demanding possess more functions and L.Ed.2d 105 (holding Therefore, greater responsibility. I can protected the trait under Title VII agree employees that these are simi actually “must have played a role in the fact, larly In situated. the reasons laid employer’s decisionmaking process and out in majority opinion finding had a determinative influence the out- Birch satisfy “equal failed to work” come.”) (internal quotation marks and cita- provide standard support also for the no omitted). similarly tion that Birch is not situated to above, For the all of the reasons stated I Magistrates the male Front Office cannot conclude that Birch has raised compares whom Birch herself. See Conti genuine issue of material fact on her sex- Enter., Inc., Appx. Univ. 50 Fed. based wage discrimination claim under the (6th Cir.2002) (finding that the rele Ohio Rights Civil Act and therefore would vant in determining factors to consider find that the district court properly grant- plaintiff whether a Title VII has satisfied summary ed judgment in favor of the de- identifying similarly her burden of situ fendants. employee wage ated discrimination case include those factors considered in

determining an employee whether has sat “equal

isfied the work” standard under the Act). result,

Equal Pay As a Birch fails to present prima evidence to establish a facie ABDUR’RAHMAN, re Abu-Ali claim of sex discrimination based on cir Movant. evidence, cumstantial satisfy as she cannot all four elements of the McDonnell Doug Abdur’Rahman, Abu-Ali Petitioner- las test. Appellant, majority correctly notes that there may conceivably be situations which a Ricky Bell, Warden, Respondent- plaintiff prima cannot establish a facie case Appellee. under conventional McDonnell Douglas Nos. 02-6548. analysis, yet may still summary withstand in a circumstantial evidence United Appeals, States Court of This, however, case. is not such a case. Sixth Circuit. Here, plaintiff has made no effort Argued: Dec. 2003. compare whatever to herself to other Decided and Filed: Dec. employee. individual Her evidence of Donnelly’s permits only statements in-

ference Donnelly harbored discrimina-

tH r> BOGGS, C.J., opinion, in which BATCHELDER, ROGERS, SUTTON, COOK, JJ., joined. OPINION COLE, Judge. Circuit Petitioner Abu-Ali ap- Abdur’Rahman peals the district court’s of mo- denial his tion for from relief that court’s earlier judgment denying his for a writ of Bell, corpus. habeas Abdur’Rahman v. (M.D.Tenn.1998). F.Supp. court held that petitioner’s district judgment, for from which he filed 60(b), pursuant to Rule amounted to an impermissible second or successive habeas defined by 28 U.S.C. 2244(b)(1). requires This case us determine whether and under what circumstances 60(b) prisoner may use Rule of the Federal Rules of Civil Procedure to seek relief a judgment dismissing peti habeas MacLean, A. Bradley ARGUED: Stites issue, At in particular, tion. is whether Harbison, Nashville, Tennessee, & for Pe- availability and what extent the of Rule Joseph III, titioner. F. Whalen Office 60(b) imposed restricted the limits on General, Attorney Nashville, Tennes- filing of second or successive habeas see, Respondent. Bradley ON BRIEF: petitions by the Antiterrorism and Effec MacLean, Harbison, Nashville, A. Stites & (“AEDPA”) Penalty tive Death Act Redick, Tennessee, Jr., William P. Whites §§ Pub.L. No. 104-132 Creek, Tennessee, Joseph for Petitioner. (codified 1214, 1217-26 Stat. as amended in III, F. Attorney Whalen Office Gen- 2244, 2253-2255, §§ 28 U.S.C. 2261-2266 eral, Nashville, Tennessee, Respon- (2000)). courts Some have held that dent. motion labeled as one 60(b) fully remains viable in the habeas BOGGS, Judge; Before: Chief context and unaffected the strictures of MARTIN, SILER, BATCHELDER, AEDPA. including the dissent in Others— DAUGHTREY, MOORE, COLE, CLAY, this case—would treat any motion based GILMAN, GIBBONS, ROGERS, on one or grounds more of the enumerated SUTTON, COOK, Circuit Judges. in Rule as a successive petition, even if the motion con COLE, J., opinion delivered the tained no constitutional claim all. court, MARTIN, DAUGHTREY, in which MOORE, CLAY, GILMAN, and Today, we eschew both of those ex- JJ., GIBBONS, joined. SILER, J. (pp. align tremes and ourselves with those 187-95), delivered a separate dissenting courts that approach use functional 2002). (M.D.Tenn., Dec. may enter- 3:96-0380 a district court when determine Therefore, procedur- we set forth by prisoner motion filed tain a resolving background al relevant judg- vacate district who seeks to us. issues before Although him habeas relief. denying ment to use permitted not be petitioner should In direct the Tennessee appeal, on AEDPA’s limitations to avoid Abdur’Rahman’s Court affirmed petitions, second or successive and death sentence for first- conviction is not to bar problem to that the solution His degree attempts murder. obtain in the habeas context motions sys- post-conviction relief in the state court Instead, we hold that Rule altogether. similarly tem were unsuccessful. as second motion should treated filed a writ of application he petition only the

or successive and corpus in the federal district court the predicate support of factual claims, constitutional two advanced several challenge to the consti- constitutes a direct troubling questions. which raised The of tutionality underlying the conviction. of challenged competency of first claim the predicate In cases which the factual counsel; trial the second con- petitioner’s of motion attacks the manner support the allegations prosecutorial tained serious judgment was in which the earlier habeas misconduct. more based on one or

procured and is claims, hearing After on both evidence 60(b), Rule grounds enumerated in 1998, 8, court April on district entered ' adjudicated pursuant to motion should be First, addressing claim. an order each 60(b). Pepe, Rodwell v. Rule See as granted the district court relief to (1st Cir.2003). 66, 67 of counsel claim. ineffective assistance ineffective, motion does Having Because Abdur’Rahman’s found trial counsel to challenge a direct granted not constitute habeas relief as to district court conviction, the constitutionality of his mo- sentence and vacated petitioner’s sentence, equivalent is not the functional court although death denied petition. successive habeas murder petitioner’s relief to conviction. as Rather, however, motion chal- appeal, panel Abdur’Rahman’s of this On a divided sentence, on which the lenges procedural basis find Court death reinstated judgment denying his habe- ing .although district court’s coun Abdur’Rahman’s and, therefore, deficient, performance rested should be Ab as sel’s was d 60(b). For adjudicated pursuant prejudiced. dur’Rahman ha not been reason, Bell, the district we REVERSE v. 226 F.3d 696 Abdur’Rahman denied, Cir.2000), and REMAND court’s order of dismissal 534 U.S. cert. (2001). to the court for petitioner’s motion district 151 L.Ed.2d 294 S.Ct. motion, pursu- brought as a consideration Second, the district court held that 60(b). ant pro- claims were prosecutorial misconduct because Abdur’Rahman cedurally barred

I. discretionary review those failed to seek Supreme long claims in the Tennessee Court history of this case is Bell, doing expired. so had and the time circuitous. See Abdur’Rahman Abdur’Rahman, 88, 123 594, 154 F.Supp. 1080-83. L.Ed.2d 501 5B7U.S. (2002) J., However, ap- while (Stevens, on June dissenting court’s denial of peal irom the district improvidently of certiorari as dismissal Bell, pend- was No. Abdur’Rahman’s habeas granted); Abdur’Rahman v. response to the States he Petitioner ing United was. alerted the district —and 2, 2001, Court’s decision in this error on Supreme O’Sullivan November Boerckel, 1728, 144 when filed a motion he Supreme L.Ed.2d Tennessee of the Federal Proce- Rules Civil —the promulgated clarifying seeking a rule Court dure from the district required 8, 1998, judgment April criminal defendants were not which dismissed appeal Supreme prosecutorial pro- to the Tennessee Court his misconduct claims all cedurally order be deemed to have exhausted barred. did Petitioner’s motion concerning any state remedies claims available not assert new constitutional claims corpus pur- rely of error for federal habeas on newly did discovered It poses. merely See Tennessee evidence. asked the district 39”). (“TSCR 39 states in ground TSCR court to vacate its order on the part: relevant that its bar ruling was based assumption the erroneous that Abdur’Rah- appeals In all from criminal convic- required man to appeal prosecuto- his post-conviction tions or relief matters rial misconduct claims to the Tennessee July litigant from and after Court. Supreme required appli- shall not be to ... file an permission cation for to appeal to the McQueen on Relying 99 F.3d Scroggy, following of Supreme Court Tennessee (6th Cir.1996), which declared an adverse decision of the Court of agree that “[w]e those circuits that be Appeals Criminal order to deemed 60(b) that a have held Rule is the motion to have exhausted all available state practical equivalent of a habeas successive of error. respecting remedies a claim corpus petition,” the district charac- court Rather, pre- when the claim has been petitioner’s terized motion as a second Appeals sented to the Court of Criminal corpus habeas application, gov- successive Court, Supreme or the and relief has basis, § by erned U.S.C. 2244. that On denied, litigant been the shall deemed motion, court district denied the dis- to have all available exhausted state jurisdiction, for lack of missed it and trans- remedies available for that claim. case Appeals ferred the to the Court of pursuant § to 28 U.S.C. A Supreme As Tennessee Court stat- divided ed, panel relief, of this Court designed “clarify petitioner 39 was denied TSCR that by stating of relief that “the district properly denial Court of court [Tennessee] 60(b) found that a Rule Appeals Criminal shall motion is the constitute exhaus- of a equivalent second or tion of remedies for federal successive habe- habeas petition,” purposes.” corpus as corpus See re: Order Es- then held that tablishing satisfy Rule Abdur’Rahman’s Rules of the did not gateway criteria Court of Tennessee: set forth in Exhaustion Reme- 28 U.S.C. for filing peti- dies. such Bell, tion. Abdur’Rahman v. Nos. 98- TSCR made clear that the district 6568/6569, Cir., 01-6504 Jan. court’s refusal to consider Abdur’Rahman’s 2002). This subsequently granted prosecutorial misconduct claims on the petitioner’s request rehearing banc. en faulty ground merits rested on because Abdur’Rahman was never to seek required II. discretionary review of prosecutorial his misconduct claims in the Tennessee Su- turn to question We us: before Court, preme as the district court believed Is a for relief pursuant motion to Rule peti- and successive 60(b) tions on second habeas to a second sueeessivé equivalent Gonzalez, in federal courts. 366 F.3d Af- tions to AEDPA? petition pursuant habeas n (“One popular of the most vehicles question apply we will addressing that ter attempted in the end-runs [around used case. the answer Abdur’Rahman’s 60(b) motion AEDPA] a Fed.R.Civ.P. have appeals that hereto- The courts of deny- prior judgment that the requesting question pro- have grappled with fore aside.”). relief be set ing The Second Cir- divergent answers. vided categorical ap- But neither appeals court seems to be cuit just satisfactory. proaches described is categorically that a motion have ruled wholly taken approach unrestricted 60(b), brought after pursuant Rodriguez appreciate fails ruling an initial habeas district 60(b) motions to potential some Rule ha- a second or successive petition, objectives. But rig- AEDPA’s subvert motions should petition, and such beas approach, adopted the Eleventh Cir- id other motion always be treated here, too prohibits and the dissent cuit 60(b). Rodriguez Rule appreciate sig- It both much. fails to Cir.2001). (2d Mitchell, 191, 198 nificant functional differences between spectrum, end of the sever- At other petitions motions and as well as the dissent appeals, al courts many differences mean that those case, have concluded a Rule in our run motions will not afoul in a case must al- AEDPA. always treated as ways almost —-be —or petitions motions and habeas petition pur- or successive habeas purposes. Contrary to the serve different See, e.g., to AEDPA. Gonzalez suant 60(b) assertion, Rule does not dissent’s Corrs., 366 Sec’y Dep’t F.3d of parties relitigate to the merits of permit Cir.2004) (en banc) (holding that claims, could or to raise new claims that 60(b) always treated Rule motions must litigation during have been raised habeas petitions second or successive petition. case or in the initial habeas final except judgment recalled where 60(b) Rather, the of Rule purpose in reopened to correct clerical errors or its allow court to reconsider is to a district judgment itself where there on judgment judgment when rests to upon fraud the federal court which led predi- foundation. The “factual defective petition); Lopez the denial of the habeas 60(b) motion] Rule deals [of cate (10th Cir.1998) Douglas, F.3d procedural irregularity or defect some petition re- (holding that the successive denying of the procurement 2244(b) § contained 28 U.S.C. strictions Rodwell, 324 F.3d at habeas relief.” 60(b) motions). A panel to Rule apply habeas that view as A second or successive trumpeted this Circuit has (“We Gonzalez, species.” McQueen, 99 at a different F.3d “is well. J., (Tjoflat, concurring part held at 1292 with those circuits have F.3d agree Like dissenting part). an initial practical motion is the ha- petition, a second or successive corpus habeas equivalent of successive habeas ”). to invalidate the state According to the Elev- seeks petition .... beas on a Circuit, judgment of conviction based leading propo- is the enth which AEDPA, view, error. Pursuant permitting constitutional nent petition is habeas allow a “second or successive” customarily as it does would operate specific types restric- meant address two to circumvent AEDPA’s prisoners (1) by prisoners: significant constitutional claims functional difference between “a new rule of claims based on constitu Rule petitions, motions and habeas law, tional made retroactive to on cases discussed above. collateral review Court” Moreover, the offers no dissent reason unavailable;” “previously and that was 60(b)(3) for permitting Rule motions based rely claims that on rule of constitu on prohibiting fraud while brought motions are tional law and that based on evidence pursuant provisions to the other enumerat- been pre that “could not have discovered 60(b). ined Rule This is puzzling, because exercise of viously through the due dili fraud is not the reason to doubt the gence” establish peti and that would integrity judgment. of a habeas innocence. tioner’s factual 28 U.S.C. 60(b)(1), instance, states that a federal 2244(b)(2). way, In this second or suc judgment may be reconsidered and vacat- petitions cessive are based entirely habeas “mistake, ed it was based inadver- alleged rights” on “the of federal violations tence, surprise, or neglect.” excusable As during that occur the criminal trial. Rod noted, the Second integrity Circuit of a 199; riguez, 252 at see F.3d also Ab judgment might be called into dur’Ralvman, doubt where the (“[L]ike corpus petitions, all habeas [a respondent engaged surprise unfair petition] second or successive failing notify petitioner of the wit- remedy meant to constitutional violations planned nesses it call in the habeas ... while a Rule motion is designed hearing. Rodriguez, 252 F.3d at 199. The to cure violations in an earlier dissent our case offers no reason why proceeding here, a habeas corpus pro — fraud on the court would be valid basis ceeding questions raise about —that 60(b)(3) motion, for a Rule while such a (Stevens, J., proceeding’s integrity.”) dis claim of surprise, unfair filed as a Rule senting from the dismissal certiorari as 60(b)(1) motion, would have to be charac- improvidently granted). terized as a successive habeas that, hold The dissent would with the situation, petition. “In each the motion exception ground provided fraud challenges only etiology the of the habeas 60(b)(3), precludes Rule AEDPA the itself,” judgment the not constitutionality district courts of this Circuit from enter- underlying Rodwell, the conviction. 60(b) taining by Rule motions filed prison- F.3d at Accordingly, 70. it makes sense to ers a seeking to vacate district 60(b). treat both motions to pursuant Rule

judgment denying them habeas corpus re- There is crucial another distinction be- any lief. on To obtain relief of the remain- 60(b) tween Rule motions and peti- habeas 60(b)(1), (2), ing grounds (4), (5), or —Rule Granting tions. a second or successive petitioner would have to fashion —the petition habeas a prisoner’s invalidates or his claim as a second successive habeas conviction sentence. petition Granting a pursuant to 28 U.S.C. and/or 60(b) Rule § motion has no apply such effect. It and must to this Court merely pursuant previously-dismissed to 28 reinstates the U.S.C. words, petition, habeas opening way leave to it. In the file other the for fur- dissent Abdur’Rahman, ther proceedings. would treat motion based on one or (“[T]he more of at grounds the enumerated in Rule difference 60(b) as a a petition, [between habeas even if or the second successive habeas 60(b) motion petition contained no constitutional claim at and a Rule is de- motion] all. But approach plainly ignores that the fined the that applicant the ir- seeks.”) J., primarily with some (Stevens, dissenting predicate the deals improvidently defect in the regularity as or of certiorari dismissal 60(b) a motion is Although Rule judgment denying of the granted). procurement to the step a on the road “undoubtedly That the classic func- habeas relief. is judg- invalidating the objective 60(b) motion, ultimate tion of a Rule such conviction,” motion does the itself ment of within the usu- motion should be treated ,F.3d Rodriguez, 252 seek that relief. not 60(b). Rule al confines of logically Circuit the Second at As (internal Rodwell, 324 F.3d citation 60(b) out, fact the Rule pointed “[t]he omitted). ultimately the vacat- contemplates motion approach nature. This is functional every with of the conviction is shared ing treated motion will be as one Whether in the might make petitioner motion to pursuant Rule or as second to pursuing his habeas —motions course depend will successive habeas respon- compel quash disclosure motion, label to on the affixed but demands, for ex- discovery motions dent’s at 71. It is its substance. Id. when adversary’s to answer the time tension petitioner presents challenge direct motion, legal with provided motions to be constitutionality underlying con- assistance, summary rejection motions be treated viction should contentions,” mo- and even respondent’s petition. as a second or successive grounded for relief from tions challenge if there no such But direct fraud, recog- which the dissent here would challenges integ- petitioner instead But this does nize. Id. at 198-99. fact opinion for one of rity of district nothing to the motion into sec- convert 60(b), in Rule then provided reasons petition. or successive habeas ond court must treat motion the district Having distinguished motions between 60(b). pursuant Compare to Rule one or suc- and second pursuant Newland, Hamilton are mindful petitions, we cessive habeas (9th Cir.2004) (holding peti- that habeas prisoners might attempt subvert motion for reconsideration of deni- tioner’s by dressing or successive AEDPA be treated as al' o'f habeas relief must 60(b) garb. petitions peti- where however, problem, to this solution sought have court recon- tioner district conceptual framework that curtails adopt prior ruling its that his habeas claims sider permitting potential for abuse while one-year limitations barred were in appropriate circum- motions Rodwell, AEDPA), under period end, adopt First To that we stances. petitioner’s (holding at 71-72 F.3d to this issue: approach Circuit’s denying judgment motion case case. inquiry proceed by The must relief, pursuant to brought habeas federal the The court must examine [district] 60(b), or successive was predicate support factual set forth required to petition, and thus was habeas the motion. motion’s particular When dismissed, the it asked district because be primarily with predicate factual deals offer opportunity for an facts— constitutionality underlying the key witnesses namely, that one of the sentence, [or state conviction federal] gov- undercover against petitioner be as then motion should treated his agent prove would ernment petition. habeas second or successive —that con- for murder was conviction distinguished state-court This situation should be infirm), Thompson stitutionally and v. Cal- factual from one in which the- motion’s Cir.1998) (en deron, prose- F.3d cessive habeas his because 60(b) bane) motion (treating by cutorial misconduct virtue of claims— claim that state failed to raised a new being procedurally deemed defaulted-— as a exculpatory evidence succes- disclose adjudicated were “on merits.” But petition). ruling applies This sive habeas that argument privileges the form of the brought force motions equal with judicial disposition over the substance of since AEDPA § 2255 context motion, 28 U.S.C. ignores and again key once in § by reference 2255 the incorporates functional differences between Rule impart- or successive” rules same “second motions and second or successive habeas §in 2254. ed petitions. procedural That default rulings are typically rulings considered “on the noted, the First Circuit

Although, change merits” does not the fact that Ab- operate not] mathe- [would “this test dur’Rahman’s motion not directly does preserve it matical would precision,” seek relitigation already adjudi- of claims goals of both Rule independent Rather, cated. challenges Abdur’Rahman AEDPA, we should be “confident that procedural basis on which the district ... be [court would] the district able to judgment his concerning prosecuto- sift from chaff without undue diffi- wheat rial claim- misconduct rested. See Hamil- Rodwell, culty.” 324 F.3d at ton, (holding F.3d that habeas McQueen holding Scroggy, petitioner’s motion for reconsideration of (6th Cir.1996), F.3d 1302 that endorsed the denial of habeas relief must treated as rejected rigid approach just we have motion pursuant peti- where hereby overruled. sought tioner to have district court recon- prior ruling sider its that his habeas claims III. were one-year barred limitations now consider We Abdur’Rahman’s AEDPA). period under motion, asks the which district court to judgment denying vacate its his authorizes the district courts ground on the that he was never a party relieve to a civil action from the required raise prosecutorial his miscon force of a final judgment on the following duct claims before the Tennessee grounds: purposes. Court for exhaustion That mo (1) mistake, inadvertence, surprise, or present challenge does not a direct (2) neglect; newly excusable discovered constitutionality of his state court con diligence evidence which due [the Instead, viction. it integrity relates to the party] could not have ... discovered judgment spe federal habeas —and time to for a move new trial under Rule cifically, the basis for the judge’s district (3) 59(b); misrepresentation, fraud ... If ruling. default Abdur’Rah or other misconduct party; of an adverse granted, man’s were would sim (4) void; the judg- ply reopening result in the of the federal satisfied, released, ment has been proceeding, not the vacation of the discharged, prior or a judgment upon judgment. Accordingly, criminal which it based is has been reversed or motion be pursuant should treated as one vacated, otherwise or it is no longer 60(b), not as a second or successive equitable judgment that the should have petition. habeas prospective application; other argues

The dissent erroneously that justifying Ab- reason from opera- relief the motion dur’Rahman’s is a second or judgment. suc-

183 60(b)(6). Liljeberg, granted his be under Rule has characterized Abdur’Rahman 11, 108 2194. 486 at 863 & n. S.Ct. U.S. as one motion judgment for from which permits Here, provision pursuant only other from justifying relief “any might other reason motion to which Abdur’Rahman’s 60(b)(l)’s brought This be is Rule judgment.” provi conceivably operation judgment for relief from when provision of equita a “reservoir been called sion has in a But this there has been “mistake.” justice particular a power” to do ble case, say simply logic stretches that Co., Inc., 608 v. Alton Compton S.S. case. a when it the district court made “mistake” Cir.1979). (4th rea 96, For that F.2d 106 prosecutorial mis- held Abdur’Rahman’s son, is for abuse of a concern there on his claim unexhausted based conduct 60(b)(6) proceedings— in habeas appeal it to the Tennessee Su- failure to than there is perhaps more concern preme Although Court. TSCR 39—which whose nature motions other to ap- do not have states that defendants But Rule easily more ascertained. peal Supreme to the Tennessee Court narrowly interpreted has been their claims to be considered order for mo that such have stressed and courts purposes for habeas clari- exhausted —is exceptional should be raised tions law, aby preexisting fication of review Lilje- “extraordinary circumstances.” was, court TSCR supreme state before 486 Acquisition Corp., v. Health Svcs. berg promulgation, an available state reme- 39’s 863-64, 2194, 100 U.S. dy traditionally pursued that defendants (1988); v. Pierce United L.Ed.2d had to because all available state remedies Workers, Cir. 770 F.2d Mine being prior to the claims exhausted 1985). Furthermore, provision and review. See Adams eligible for habeas 60(b) are mutual provisions of Rule other (6th Cir.2003) Holland, is, ly if the reason offered exclusive—that (holding discretionary appeal that a consid could be required for relief Supreme is not Tennessee Court specific claus purposes one of the more under ered under federal exhaustion 39).1 60(b)(1)-(5), then relief cannot TSCR es of Rule law, O’Sullivan, courts should have Supreme lates federal state Court held opportunity to review this claim express pronouncement the first absent an O’Sullivan, State, any necessary provide relief." require must a federal court remedies, (emphasis in in- 119 S.Ct. 1728 petitioner all state 526 U.S. at to exhaust removed). discretionary original, the state This cluding review before interior citations court, Illinois, satisfy ha- supreme federal which has dis- required order even in review, requirements. supreme See cretionary beas exhaustion O’Sulli- state van, 315(a) 119 S.Ct. 1728. Supreme Court Rule where Illinois explicitly noted that a discouraged filing "petitions O’Sullivan arguably Therefore something require dis- less than raising allegations State could Id. at routine of error.” highest cretionary state review before 119 S.Ct. 1728. However, purposes federal exhaustion. Supreme court for the noted that fact, assertions, greater ruling may, result in Contrary such Adams dissent's supreme the state courts. "effectively burden on overrule!] v. Holland did not Boerckel, acknowledge we announce We rule O’Sullivan (1999)." today requiring prisoners peti- to file state L.Ed.2d In O’Sul- — livan, discretionary when that tions for review Court noted under ordinary part appellate re- 2254(c), petitioner review must U.S.C. poten- State—has the procedure view to act give opportunity state courts "fair filings in the number of tial to increase Comity thus dictates that their claims .... recognize supreme We also courts. prisoner alleges his continued when a may be unwel- burden vio- that this increased state court conviction confinement 184

Indeed, prior to TSCR promul- 39’s and the district court in this case —did not courts gation, interpreting federal Tennes- make a “mistake” requiring defendants required appeal see law to the Tennessee to appeal to the Supreme Tennessee Court, Supreme part Court ex- they simply because had no rea- See, e.g., requirement. haustion Jones v. son —based on Supreme United States Jones, 850, F.Supp.2d law, law, 76 856-57 Court state and federal court (E.D.Tenn.1999); v. Campbell, precedents Cole Indeed, 703 know otherwise. —to 657, F.Supp. (M.D.Tenn.1988); Lay- presumption this by later ratified Russell, 430, man v. F.Supp. 431 Supreme Court in O’Sullivan. See O’Sul- (E.D.Tenn.1969). livan, These district 847-48, courts— 526 U.S. at 119 S.Ct. 1728.2 come in some state courts because the majority's ther noted "[The citation of do opportunity courts not wish have to South Carolina rule] should not be to read to review constitutional claims before those suggest something plain- more: that however presented claims are to a federal habeas ly may highest speak, a State court its court See, e.g., court. In re Exhaustion State subjected of applications must be to constant for Remedies in Criminal and Post-Conviction discretionary a form of review that the State Cases, 563, S.C. S.E.2d 454 Relief truly extraordinary wishes to reserve for (1990); Sandon, see also State 161 Ariz. cases, or else forced to eliminate that kind 157, (1989). 777 P.2d 220 Under these discretionary review." Id. at circumstances, may Boerckel be correct S.Ct. 1728. that the increased unwelcome burden on O'Sullivan, response In the Tennessee supreme comity state courts disserves the Supreme promulgated Court TSCR mod- underlying the interests exhaustion doc- Rule, clarify eled after the South Carolina regard, In we nothing trine. note that a request discretionary review was in today requires in our decision the exhaus- fact, required purposes not for the of exhaus- any specific remedy tion of state when a Adams, is the holding tion. This essential provided remedy State has that the is un- F.3d at 403-04. available. Supreme Given the Tennessee Court’s (emphasis origi- Id. at 119 S.Ct. 1728 adoption specifically by rule endorsed nal). majority opinion in a purpose O’Sullivan for quotation, As noted in the above the O’Sul- specifically by concurring justice, advocated majority approvingly livan cited to South Car- surprising it is dissent believes Adams regarding olina's statement habeas exhaus- Supreme somehow prece- overrules tion, re Exhaustion State Remedies in dent. Cases, Criminal Post-Conviction Relief (1990). 321 S.C. O’Sullivan, S.E.2d See reason, 2. For this persua- the dissent in not 526 U.S. at 119 S.Ct. 1728. stating sive in that the district court made a Souter, writing separately, quoted Justice "legal ruling petitioner mistake” in failed South Carolina rule: Supreme exhaust. Like the Court in O’Sul- appeals [I]n all from the criminal convic- livan, merely applied district court pre- matters, post-conviction or tions sumption supreme state court wishes litigant required shall not be be the petition- first court to review a habeas rehearing following and certiorari ad- O'Sullivan, er’s See claims. 526 U.S. at 847- Appeals verse decision the Court of presumption, 119 S.Ct. 1728. Such a like order to be deemed to have exhausted all presumptions, all necessarily does not deter- respecting available remedies a claim mine Rather, actually whether the state court wishes of error. when the claim has been to be the first to review presented these claims. Appeals to the. Court of Court, Accordingly, Supreme denied, the district court cannot be and relief been has litigant making "legal viewed as mistake” cor- shall be deemed to have ex- rectly applying presumptions hausted all available state remedies. later endorsed

Id. at (citing presumptions 119 S.Ct. 1728 In re Ex- which Court— may haustion may accurately State Remedies in Criminal and reflect actual Cases, Post-Conviction supreme 321 S.C. wishes of the state court. Nor can Relief (1990)). 471 S.E.2d 454 Justice Souter fur- supreme the state change court be said to its

185 extraordinary circumstance. itself, an clarified that such eventually But TSCR Felton, 203, 239, 117 fact, v. 521 U.S. not, Agostini As required. in was appeal an (1997); Blue 138 L.Ed.2d 391 properly such, motion Abdur’Rahman’s 60(b)(6) v. Trs. the UMWA motion. Diamond Coal Co. a Rule as characterized Fund, of his 249 F.3d relitigate the merits not Combined It does Benefit claim, (6th Cir.2001). in change rather be a but There must misconduct prosecutorial to reconsider its some other “coupled law the district court decisional asks grant aon defective relief under special which was based circumstance” judgment, 60(b)(6). namely, unclear state Id. at 524. foundation: Rule This law, was later clarified. which case, pursuant to Rule In this territory, legal new analysis not chart does 60(b)(6) two reasons. permissible courts Federal suggests. dissent as the a clari- First, not constitute TSCR 39 does to a opposed as Rule applied have Agosti- in law decisional such fication 60(b)(1) mistake,” “legal where Rule that an “extraordi- ni or such applies even existing state supreme court clarifies state required. even nary circumstance” is See, & e.g., Heirs-At-Law law. Beneficia comprised in this case is decisional law Indus., Inc., 158 v. Dresser ries Gilbert governing prosecu- claims precedent (N.D.Miss.1993). 89, 92 F.R.D. See, e.g., Brady Ma- torial misconduct. 60(b)(6) 83 S.Ct. ryland, 373 U.S. specific has no time (1963). filed, If the district court it must be within which L.Ed.2d limitation a “reason of Abdur’Rahman’s brought it within had the merits save that reached 60(b)(6). The prosecutori- no time.” Fed.R.Civ.P. able claims determined inter has been time standard then the place, reasonable but al misconduct took circum the factual preted depend Brady altered such Supreme Court Sec’y of each Smith stances case. holding wrong, district Svcs., and Human pur- Health for relief grounds would be no there Cir.1985). Here, Abdur’Rahman 60(b)(6). But TSCR 39 does suant to Rule require time has satisfied the reasonable law; it clari- alter decisional similarly not on June became effective ment. TSCR 39 district court’s underlying the fied the law filed his and Abdur’Rahman the merits of even to reach decision not four months approximately claim. constitutional Abdur’Rahman’s Cf. later, 2, 2001. on November Lines, Inc., Far East In re Pacific (9th Cir.1989) (granting re- F.2d 60(b)(6) above, should be As noted Con- when lief “extraordinary circum- only in used statute, refer- capped which gress passed at Liljeberg, stances.” shortly proceedings, bankruptcy in ee fees is not Although TSCR 39 a settlement reached parties after the change accurately characterized cap; four times the pay fees that were law, law, a clarification but rather argument that unex- rejected the court analysis “extraordinary circumstances” law similar statutory are changes pected analogous to that which would most here is decides party which to situations change confronting if we were be used a “second bite gets then appeal A to but law, analysis here. apply that and so we change free-riding off of not, apple” usually law is change decisional review. applicable procedures merely presump- corrects own law where regarding state court aof federal court Cook, (6th resulting from an re decisional law unrelated 215 F.3d 607-08 Cir. appeal, which then 2000). party’s successful alters law).

the case barrier, This type procedural second by exhaust, forfeiture failure is what Second, if TSCR 39 even were consid- the district court upon dismissing relied law, ered a clarification of decisional there prosecutorial Abdur’Rahman’s misconduct here, “extraordinary is an circumstance” claim. But procedural exhaustion and de- stemming the nature of from Abdur’Rah- distinguishable fault important are in an (al- man’s “default.” As well-established A sense. defendant could fail to exhaust by courts), muddled though sometimes two procedurally claim without defaulting if he might types procedural pre- barriers could return to the state courts to ex- of claims in a clude federal review case, haust. Alternatively, as in this petition. type, procedural The first de- defendant could fail to exhaust without de- fault, rule, judicially grounded is a created if faulting in procedural clarification law fealty comity requiring values and already indicates that he has taken the respect judg- federal courts state court necessary is, action to exhaust. That for- “independent ments that are based on an by feiture failure to exhaust entails a legal adequate” procedural ground. and state fiction, of sorts. The state court has not 722, 732, Thompson, Coleman v. rejected appeal an based on a state rule (1991); 115 L.Ed.2d 640 violation; there is no by declaration Smith, Maupin v. independent state court of an and ade- Cir.1986) (establishing four-part test for quate ground state to which the federal procedural determining whether rule Instead, court must defer. the federal independent an adequate and state presumption makes a that the state ground). cases, In procedural default reject court would appeal on indepen- reject state court or courts a direct or adequate dent and grounds state post-conviction petitioner But, appeal because the to file it. by defen- tried declar- ing forfeited, the claim comply dant failed to some state law federal court saves the timeliness, petitioner and the concerning or rule state court re- pleading respectively preparing rejecting and quirements, evidence, sufficient or the like. filing. futile The federal court then bar, type exhaustion, is views the through claim proce- the lens of similarly grounded respect for state dural default to determine whether there court procedures, federally but it is man- is cause and prejudice to excuse the de- AEDPA, by dated see 28 U.S.C. short, fault. In crux of forfeiture 2254(b)(1)(A), (c), requires petition- and failure to exhaust is that the federal ers to give state courts a “fair opportuni- court’s default decision rests upon pre- ty” petitioners’ to assess claims. O’Sulli- sumption about what the state court van, S.Ct. 1728. do, would rather than respect for what a Often, federal courts will rule peti- that a state court actually did. Accordingly, tioner’s claim is “defaulted” because the here, the district presumption petitioner failed to exhaust his remedies about Tennessee’s rules is the refiling the time for an appeal factor that renders the promulgation of passed. court has The unexhausted an “extraordinary circumstance,” TSCR 39 claim “procedurally is then classified as permitting possible 60(b)(6). defaulted” and deemed forfeited absent The district court held that Ab- showing of prejudice. cause and See In prosecutorial dur’Rahman’s misconduct SILER, Judge, dissenting. Circuit by failure to exhaust forfeited claims were had to because, that he presumed analyzing presented issue claims prosecutorial misconduct raise his issue of federal law appeal, important Tennessee before the as which the circuits are post-ADEPA, (2) so and that that he failed do found I the dual currently split, begin prop- returning to of limitations for the statute (1) Abdur’Rahman ositions that because had the claims ex- state court exhaust does not advance his Rule motion analyzed court then pired. The district (and merely any claims seeks recon- new principles of pursuant claim to the his of the court’s earlier sideration procedural default. prosecu- as to the bulk his ruling default But, to TSCR Abdur’Rah- pursuant claims), 28 U.S.C. torial misconduct required to raise his claims man was never subsection; controlling § is Supreme for the Tennessee before (2) less scope of this subsection is Accordingly, purposes. exhaustion text expansive suggests. than the We court’s supporting the district speculation proposition to be true know this latter then crumbles. It becomes finding default because, reading of the though a literal Tennes- how the State of impossible see petition filed any hold that statute would court, see, or the dissent here the federal or succes- a first would be “second after the district upholding interest has sive,” rejected Court has Supreme case, ruling in which contra- court’s McDaniel, 529 v. such a view. See Slack express the State of Tennessee’s venes 1595, 146 L.Ed.2d 542 120 S.Ct. U.S. concerning the exhaustion of policy (2000) § ap- did not (holding that Indeed, enforcing the district remedies. petition second habeas ply petitioner’s in this case would dis- his first had been dismissed because comity enshrined serve the interests Martinez-Villareal, unripe); Stewart v. the state court’s view ignoring AEDPA 637, 118 140 L.Ed.2d 523 U.S. S.Ct. Black, v. Stringer of its own law. See (1998) § did not (holding 222, 235, 112 117 L.Ed.2d S.Ct. petitioner’s second habeas apply to (1992) (“It strange be rule of would for his first had dismissed been because ignores the view federalism exhaustion). But see Stewart want of meaning court of a State as to the highest 646-48, Martinez-Villareal, law.”). of its own 1618, 140 L.Ed.2d 849 (Scalia, J., dissenting); id. IV. (Thomas, J., dissenting). S.Ct. court errone- hold that the district We coin, however, it On the other side of the motion as sec- ously petitioner’s treated a sec- considering whether is clear that petition. Be- or successive habeas ond or successive” petition is “second ond properly motion is cause Abdur’Rahman’s §of substance purposes as a motion characterized subsequent A not form determinative. 60(b)(6), we REVERSE and REMAND a “second or suc- filing can be considered to consider to the district court the case corpus application” even cessive habeas granted, the motion should be whether “In a as such. expressly labeled merit of Abdur’Rah- potential based on case, motion ... prisoner’s § [re- pre- misconduct claims prosecutorial man’s of the merits of specting] the basis procedurally viously to have been found as a regarded can underlying decision defaulted. application pur- or successive his second the Tennessee 2244(b). Otherwise, petitioners poses Court’s newly-promulgated against relitigation 39, Abdur’Rahman, however, could evade the bar asked the prior application presented claims district court below to matters consider ” Thompson, .... Calderon U.S. going beyond those included in initial his 553, 118 140 L.Ed.2d 728 petition. (1998). Slack and Martinez-Villareal are issue, course, just The ultimate only slightly greater relevance. both numerically when is cases, of these peti- dismissal of the filing “second or successive” for indeed first petition tioner’s habeas was not “on 2244(b)(1). Beyond § purposes of the Slack, the merits.” 529 U.S. at 120 up by faint Slack contours set and Mar- (first S.Ct. 1595 petition habeas dismissed tinez-Villareal, the boundaries stat- Martinez-Villareal, unripe); as 523 U.S. admittedly ute are But despite indefinite. (first at 118 S.Ct. 1618 habeas pe- uncertainty fringes, I on the find this exhaust). tition dismissed failure to 60(b) much to clear: a be that Despite Abdur’Rahman’s to efforts charac- relitigate procedural to a seeks default rul- terize petition the dismissal his for pro- ing already adjudicated in once a first purely cedural default a as dis- or petition is “second successive” missal that to failed reach the merits 2244(b). § under To hold otherwise would claim, his we have consistently held that effectively be to eviscerate AEDPA. procedural default “on determinations are Cook, In the merits.” In arguing against applicability See re 215 F.3d (6th Cix.2000); heavy § 608 places Abdur’Rahman see also Carter v. States, (2d Martinez-Villareal, Slack and United 150 reliance on F.3d 205-06 Cir.1998); in v. Whitley, as well a third case which Bates Su- (5th Cir.1994). Cook, § preme inapplicable, found As we Court noted Calderon, ripeness at lack of 523 U.S. and failure to S.Ct. 1489. exhaust are may cured, It is defects which ultimately true that such cases can to at be read that, allowing such support proposition petitioner at time bring least to cases, Cook, his claim a some not before statute does mean federal court. however, at says. problem, default, what it The F.3d is that Procedural Slack, Martinez-Villareal, hand, defect, the other is an and Calderon incurable easily distinguished are all absent a help showing prejudice. and in fact cause and little, a Abdur’Rahman’s cause if all. Id. Where district court pro- at has found cedural default and a lack of cause and a arguably Calderon is not even “succes- prejudice, finding fully disposes of There, petition sive” case. the course of petitioner’s claims. holding that court of appeals had abused discretion recalling its its man- In final analysis, isit this fact—that date, found inappli- prosecutorial Abdur’Rahman’s misconduct recalling cable because in the mandate the claims adjudicated were “on the mer- court of appeals expressly had stated that its”that makes this case different. The it had petitioner’s acted on the basis of question may fairly be if a asked: petition. Calderon, motion that to relitigate seeks first 118 S.Ct. 1489. The of ap- already court claim adjudicated “on the merits” peals had not pre- matters in a “eonsider[ed] first habeas is not “second sented in basing successive,” later filing.” [the] Id. what is? Abdur’Rahman was (1975) (“Since the exhaus- he it. It is L.Ed.2d adjudication; got to an entitled codified, statutorily to sit requirement province not of this against apply to Congress’s prohibition could be read judgment of even recognize it.1 rehashing could not alter the statuto- this situation it claims— develop- “subsequent legal Litscher, fact command.”); Dunlap ry AEDPA can- change this. Cir.2002) J.) (Posner, ment” does F.3d cannot whimsically cast aside. We not be (“Th[e] clear AEDPA] are provisions [of pro- language of the statute rewrite using Rule bar a district court from adjudication when merits vide for broader relief give prisoner If the clearly says otherwise. the statute in a the court rendered anything, must mean is to mean statute pro- ... corpus federal habeas prisoner’s has had certain petitioner that when AEDPA’s limitations ceeding. Otherwise adjudicat- claims a first habeas attack would be set at on collateral merits,” filing subsequent ed “on the (“These 81(a)(2) naught.”); Fed.R.Civ.P. adjudica- of that seeking reconsideration for ... applicable proceedings rules are tion is “second successive.” ... that the corpus to the extent on the primarily rests my view While is not set proceedings in practice such claims recognition that Abdur’Rahman’s in statutes of the United States forth I adjudicated, note already 60(b) been once ”). have Also, Rule could be .... even if consider- supported by other it is language of the Rule apply, said to one, structure and AEDPA’s ations. For position. support Abdur’Rahman’s does not In AED- my conclusion. history support 60(b)(6), his motion under He made PA, ha- Congress dramatically altered the not include mis- this subsection does but successive corpus governing statute beas is included in law. Mistake of law takes of significant the re- petitions.2 Most under but motions made “adjudication” any moval of reference more must be made “not that subsection change sug- on This textual the “merits.” order, year judgment, after the than one relax the Congress intended to gests that or taken.” proceeding was entered or a “peti- what is considered standard for 60(b). Thus, the time for Fed.R.Civ.P. tion,” inference— consequently by and long — a has since making such motion petition. a “successive” what is considered assuredly not the and it is case passed, of Rule expanded the reach that AEDPA AEDPA’s limitations A vital tenet is that 60(b)(6)in particu- general in or of Federal Rule trump on Ac- 60(b). See, Liljeberg v. Health Services lar. e.g., Pitchess See Civil Procedure 847, 863, 482, 489, 1748, U.S. 108 Davis, Corp., 486 quisition 421 custody person the state of Tennes- majority 1. asks “how The courts, see, here has denied a court or the dissent of State court has been federal a upholding the district court’s interest from custo- States ... release of the United is ruling I submit that this this case.” But application for a dy remedy an other on or not wrong question. is called This subsequent appli- a corpus, of habeas writ weigh in- upon to the various "interests” corpus on behalf for writ of habeas cation a plain lan- to enforce the volved here — person a not be entertained of such need guage AEDPA. of alleges and is application ... unless ground predicated or not on factual other § predecessor of read: version hearing earlier adjudicated on the evidentiary hearing on the When an after the writ .... application for issue, merits of a material factual after added). (1994) (emphasis 28 U.S.C. law, a hearing the merits of issue on 190 (1988) (“Rule 60(b)(6) L.Ed.2d

S.Ct. 855 holds that Rule applicable be- grants ... federal courts broad cause the court had previously district authority party to relieve from a final legal made a failing recognize error — just,’ terms judgment ‘upon such as are prior even to the promulgation provided that the is made within a TSCR require Tennessee law did not premised time reasonable claims criminal defendants to raise their grounds one of the for relief enumerated before the Tennessee Court to (b)(1) (b)(5).”); through Klap clauses meet AEDPA’s requirement. exhaustion States, 601, 613, prott v. United But recognized Court has claim “[t]his (holding 93 L.Ed. legal error category as subsumed may party that a “not avail himself of the 60(b)(1).” mistake under Rule Pierce v. 60(b)” ‘any broad other reason’ clause of Am., United Mine Workers & Welfare grounds the motion specified is based on Retirement Fund 1950 and (1), “mistake, clause which include inadver (6th Cir.1985) F.2d (citing Barrier tence, surprise neglect.”). excusable Beaver, (6th Cir.1983)) one-year view of the limitation on claims added); (emphasis accord United States v. fact, neglect, mistake of law or excusable Reyes, Cir.2002). F.3d newly-discovered evidence like claims majority’s To borrow phrase, it “sim- 60(b)(1)-(3) Rules relief under and in ply logic” stretches to construe the district general view of the rule that Rule court’s decision as anything other than may not be used “as substitute for an yet majority just “mistake.” And does appeal” or a technique “as to avoid the this without providing reason explain of consequences deliberately decisions ignorance how justifiable- alone-however unwise,” made yet later revealed to be legal transforms a court’s error into some- Home, Hopper v. Euclid Manor Nursing thing other than “mistake” for pur- the Inc., (6th Cir.1989), the 60(b). poses of Fed.R.Civ.P. problem today we face of a conflict be tween provision of Rule majority justifi and AED- The nonetheless offers ever, PA if rarely, will as to types arise the cation for the district court’s failure to 60(b)(1)-(3). of claims in Rule enumerated legal know the exhaustion rule noting eventually “TSCR 39 clarified that Although acknowledging the well-estab- not, fact, an appeal such was in required.” may party lished rule that a bring Here, the majority agree seems to with 60(b)(6) claim under Rule if his claim could Holland, Adams v. 330 F.3d 398 Cir. 60(b)(1), be considered under Rule the ma- 2003), in panel which a of this court de jority the of applicability dismisses Rule clared that “Rule 39 existing law 60(b)(1), declaring that “the district court clarifies rather than changing the law.” Id. at 405 in this did case not make ‘mistake’ in [ ] added). (emphasis While the distinction requiring appeal defendants to the Ten- Court, between clarification and Supreme they change may nessee because sim- trivial, seem the ply recognized had no Adams court reason-based on United States law, law, Supreme important that the difference Court state in and federal deter mining precedents-to court know otherwise.” The retroactive effect of Rule 39. holds, however, majority also Because deemed Rule that Rule 39 a mere clarifi is, is applicable here because “the cation-that Rule 39 made clear what district erroneously court petition- always treated Tennessee’s rule had been-the er’s motion as a second applied successive habe- Adams court found that the rule petition.” words, In other majority retroactively. Conversely, the Adams that “the jority nonetheless finds district Rule effected a suggested, requirement, presumption about Tennessee’s exhaustion court’s in the change apply is the factor that renders Rule 39 would rules it is then unclear turn of 39 an ‘extraor- general, raising promulgation in TSCR retroactively apply circumstance,’ permitting possible Rule 39 would dinary as to whether doubts 60(b)(6).” ma- particular. The Abdur’Rahman promul- jority therefore asserts “clarification,” Rule 39 a Despite calling rule” gation essentially of what is “new Ab- determining whether purposes cir- extraordinary not constitute an does may brought under claim dur’Rahman’s purposes cumstance 60(b)(6), majority undertakes the misapplica- but district analysis or- circumstances” “extraordinary re- does meet that “old rule” claim is that dinarily utilized when the it is reasoning, quirement. Applying change in the law. While has been there any change how the law difficult to see rea- states that it is majority opinion extraordinary circum- will fail to meet the by analogy, it is difficult see how soning test. stance unless analogy apply would such substantively “changes” “clarification” oddity deserves One other about Adams majority there- very question. rule in Rule 39 “clarified” comment. Whether maintain the “clarification” fore seeks to it, “changed” can law or there Tennessee Adams, infusing it while nomenclature effectively that it overruled be little doubt meaning “change.” with Boerckel, 838, 119 O’Sullivan v. inescapable then two are left We (1999). At issue 144 L.Ed.2d merely clarifies options: either Rule option O’Sullivan whether law, always in which what had been the discretionary review the Illinois seeking a legal made mis- case the district court represented an “available” holding that Abdur’Rahman had take under procedure purposes for exhaustion claim because he did failed to exhaust his 2254(c) (a AEDPA. See U.S.C. Supreme not raise it the Tennessee before deemed to have prisoner “shall not be law, Court, in changed or Rule 39 in the the remedies available exhausted decided, wrongly is which case Adams right ... he has a of the State courts make clear that it is majority should raise, any the law of the State to under op- If the overruling precedent. first that present- procedure, question available then, true, Rule 60 to the extent tion is noted, ed.”). Doubtless, post permitted now motions are deemed procedure review question whether state AEDPA, properly claim Abdur’Rahman’s of consideration requires is “available” 60(b)(1) rather Fed.R.Civ.P. arises under ultimately is a the question law but state 60(b)(6)-and ac- than the motion should not on the state one that turns federal If untimely. cordingly be dismissed how procedure but on given label true, change then the in option in After operates practice. procedure toas grave questions law raises whether all reviewing procedure, which the Illinois appro- of the rule is application retroactive Supreme agree the Tennessee mirrors priate this case. procedure in discretionary review Court’s respects, concluded that a all material O’Sullivan Finally, acknowledging while an “available” one procedure not that the law alone does constitute change accordingly the federal statute and extraordinary sufficient to under an circumstance there. had to be exhausted under Rule the ma- claims permit relief 192 O’Sullivan, today of one would have majority’s holding

aftermath conflicts our thought question only precedent, historical with not see that the wheth own McQueen 1302, v. discretionary-review Scroggy, procedure like 99 F.3d 1335 er (6th Cir.1996) (“We Tennessee’s) (or agree cir with those “remed[y] was a Illinois’s cuits that have held of courts the State” had available practical equivalent motion is the of a suc interpreted in finally been decided. As corpus ”), cessive .... but Adams, however, purports Rule 39 retro See, also with that of our circuits. sister actively change remedy the “available” Winestock, e.g., v. United States 340 F.3d inquiry only of law view the that not —a (4th 200, denied, Cir.), 208 cert. U.S. 540 allows to overrule Tennessee O’Sullivan 496, (2003); 124 S.Ct. 157 395 L.Ed.2d to promulgate but would allow Illinois its Litscher, Dunlap v. 301 F.3d 876 own Rule and reverse the outcome Cir.2002); Lopez v. Douglas, 141 F.3d very O’Sullivan case. Federal law (10th Cir.1998) curiam). (per par Of fragile. Availability is not that in the final ticular relevance is the Eleventh Circuit’s analysis question is a of federal law that Secretary recent decision Gonzalez v. ultimately objective a “question turns on Corrections, Dep’t 366 F.3d fact,” Frank, Wenger historical v. 266 F.3d (11th Cir.2004) (recognizing two nar (3d Cir.2001), that no State has exceptions row clerical errors and —for authority change retroactively. Cf. fraud —to the rule that a Rule 214, 223, Carey Saffold, is “second successive” and noting that (2002) (“Ordi 153 L.Ed.2d 260 law, error even one “[a]n demonstrated narily, purposes applying federal decision, intervening does fit statute that interacts ]”). ... exception! Only either the Second rules, look how procedure we a state Circuit generally the view that “a functions, particular than the rather name motion under Rule judg vacate a Alabama, bears.”); that it N.A.A.C.P. ment denying habeas is not a second or 449, 456, 1163, 2 L.Ed.2d successive habeas ... should (concluding that was “unable be treated as other motion under Rule procedural holding to reconcile the 60(b).” Mitchell, Rodriguez v. ... Alabama with its past (2d Cir.2001).3 To the extent holdings” unambiguous given proce on Second Circuit believes issue). dural Because Abdur’Rahman re motions are applica different from habeas panel lies our decision Adams to they tions because “seek[ ] to vacate claim, bring I would use this case to judgment federal court dismissing the overrule that decision. petition,” “merely habeas which is step a I do not believe that Abdur’Rahman’s along relief, way” to habeas id. at 198- 60(b) claim Rule survives AEDPA’s bar on 99, the dichotomy is a false one. Before second petitions; or successive habeas since, AEDPA Court has does, however if it then it should be con- made it clear that may abuse of the writ strued a arising as claim under Rule occur readily revisiting as federal dis untimely. and dismissed as trict court habeas in revisiting decisions as recently Second Circuit previous proceeding only reaffirmed this habeas when the approach "functional” v. 60(b) in Harris United integrity Rule motion attacks of States, 74, Cir.2004) (2d (noting 77 proceeding underlying habeas and not the that the Rodriguez held that "relief conviction”). criminal under respect a is available with

193 ” See, begotten Cham fraudulently judgments,’ e.g., court decisions. underlying state 664, 651, bers, 44, 116 (quoting at 111 2123 518 U.S. 501 U.S. S.Ct. Turpin, Felker v. (AED- (1996) 2383, 827 L.Ed.2d v. S.Ct. 135 zel-Atlas Glass Co. Hartford- Ha 245, [fed- on successive Co., 238, PA’s “new restrictions 322 64 S.Ct. Empire U.S. ... a restraint constitute petitions (1944)), eral] assuming even 88 L.Ed. 1250 practice corpus what is called habeas so.4 Congress power has the to do ”) omitted); (quotation writ’ ‘abuse of the that place, In the second the conclusion 467, 492-93, Zant, McCleskey v. 499 U.S. claim generally a fraud-on-the-court should (1991) 1454, 113 517 111 L.Ed.2d S.Ct. petition be treated as a “successive” not the “abuse of writ” that (recognizing the Supreme much in common with has finality respects the of state court doctrine petitioner may that a Court’s conclusion finality a respecting convictions if the first one was bring second Wong proceeding); first federal habeas (Slack) or if the unripe as first dismissed States, 239, 241, 44 Doo U.S. v. United to ex- was dismissed for failure (holding 68 L.Ed. 999 S.Ct. (Martinez-Villareal). haust Much judica- res doctrine of while “the inflexible litiga- historical corpus over habeas debate proceed- apply not then habeas ta” did question has of whether turned on an abusive use ings, petitioner “make[s] judicata apply to state court res should corpus” when he writ of habeas habe- proceedings criminal federal court proceed- federal attempts use judica- corpus those res decisions—and in a first grounds revisit raised ing to that are principles exceptions ta contain proceeding). Historically, judicata here. res relevant Contrary petitioner’s suggestion petitions. Fay to habeas See apply did courts, this some to the observations of Noia, 391, 423, 83 S.Ct. 372 U.S. that a claimant does not mean conclusion (1963) (invoking “the familiar L.Ed.2d 837 for fraud brings a Rule who judicata principle inapplicable that res it re-characterized on the court will have also see Sanders proceedings”); corpus as a “second or successive habeas States, United In the first AEDPA. application” under (1963). But L.Ed.2d empowers place, it is not 2244(b), to 28 U.S.C. 1966 amendments litigants to such relief. That authori- seek adopted “qualified application” Congress of a ty power” from “the inherent stems judicata See proceedings. res to habeas court, it “to vacate its federal which allows McCleskey, 499 U.S. S.Ct. that a fraud has judgment upon proof own (noting that the amendment “establishes upon Cham- the court.” perpetrated been doctrine of res application ‘qualified NASCO, Inc., 32, 44, 111 bers v. ” by pro- judicata’ proceedings to habeas (1991). 115 L.Ed.2d not en- viding court ‘need “that federal point says acknowledges the when subsequent tertain’ a second power rule does not limit “[t]his petitioner satisfies two petition ‘unless’ the ... set a court aside 60(b). ground for re- namely, new on court.” Fed.R.Civ.P. fraud conditions”— deliberately that was not withheld alter this lief purports AEDPA nowhere “ 1797, S.Rep. No. litigation) (quoting power equity to set aside earlier ‘historic 60(b).” Not true. As majority dissent enumerated states that “the offers above, explained exception for fraud does mo- permitting no reason for itself but from a prohibiting not derive from the Rule fraud while mo- tions based on brought provisions power. court's pursuant to the inherent tions other 194 Sess., (1966), 2 Cong.,

89th a departure rigid 2d U.S.Code from mand[s] adherence 1966, 3663, pp. & Cong. Admin.News 3664 to judicata”) the doctrine of res (quotation 2244(b) (1966)). § omitted); Chambers, and 28 And in 44, U.S.C. 501 U.S. at 111 enacting AEDPA in im- Congress (noting 2123 power S.Ct. that the “historic posed additional on succes- “restriction^] of equity begot- to set aside fraudulently again which sive “constitute a petitions,” judgments necessary ten integri- is to the judicata rule.” modified res Felker Tur- courts”) (citations ty of the quotations and 651, 664, pin, 116 S.Ct. 518 U.S. omitted). Absent more concrete direction (1996). L.Ed.2d 827 Congress, there is no reason to think Congress that meant to abandon this tra- trying impose Congress That ditional understanding judicata of res judicata “modified res rule” on habeas cor- it same time that was to im- applications explain why seeking pus helps some pose judicata” a “modified res on repeat corpus rule suc- petitions are “suc- why corpus are cessive habeas applications. cessive” and others not. The doc- judicata trine of res has several well-es- background only This principle helps not exceptions against tablished to the bar explain exceptions these to the “succes actions, subsequent each of which accounts (and others, sive” potentially bar prior for the Court’s decisions though only those consistent with AED- appropriate this area as well treat- PA), shapes but it also the rule I would ment of a fraud-on-the-court motion. today explains why follow I would Martinez-Villareal, Slack and exam- reaffirm the essence of our decision ple, judicata are consistent with the res McQueen, 99 F.3d at 1335. AEDPA an principle preju- dismissal without judicata” nounces “modified res be bar dice not on does bar second action permit cause it does petitions, “successive” Judg- same claim. See Restatement of but in two settings discrete —new (Second) 20(2) (“A § ments valid and final rules of constitutional law claims of personal defendant, and, actual then, only even af innocence— prematurity which rests on the ac- ter specific requirements have been met. did the ripeness [as dismissal on 2244(b)(2). See 28 U.S.C. judicata Res grounds ], on Martinez-Villareal general has never had exception for re plaintiffs satisfy precondition failure to merits,” visiting decisions “on the and in [as suit did the on dismissal exhaustion deed the point whole of the doctrine is to Slack], grounds in not bar does another finality establish once such decisions have action plaintiff instituted after the been As a reached. matter of statutory matured, claim precondition has or the has interpretation, moreover, a statute that satisfied, been unless a second action is narrowly permits some petitions successive precluded by operation of substantive change due to a in the law.”); Martinez-Villareal, fairly law cannot be see also (“It construed to permit petitions other due to U.S. at certain changes the law. See respondent’s Coun Ford claim would Middlesex ty Sewerage Auth. v. judicata.”). barred under form res National Clam Sea Likewise, Ass’n, 1, 14-15, mers long has been true that fraud 101 S.Ct. (1981) (“[I]t on represents the court exception L.Ed.2d is an judicata. res Begger- statutory See United States v. essential canon of construction ly, where a statute expressly provides a L.Ed.2d 32 (holding particular remedy that fraud remedies, a court the court “sufficiently that is gross” chary “de- must reading into others it. congres- indicia of strong In the absence intent, compelled are to conclude we

sional the rem- precisely Congress provided (quota- appropriate.”) considered

edies it omitted). AED- Because citation

tion and trump

PA’s limitations on habeas Rules of Civil applicable Federal

otherwise noted,

Procedure, AEDPA as I have contrary mo- trump must

requirements 60(b)(6). end, In the

tion under Rule AEDPA what simply may give Davis, away.

has See Pitchess taken (holding that “even

L.Ed.2d 317 apply could be read judgment in ha- reopening a

situation [— alter the statuto- it could not ]

beas case— command”).

ry reasons, I would af- foregoing

For

firm. HARPER, Plaintiff-

Derrick E.

Appellant, INTERNATIONAL,

AUTOALLIANCE Co.,

INC., Employee AAI Services

L.L.C., Jeffrey Kelly, and Allen Chil

dress, Defendants-Appellees.

No. 03-2081. of Appeals,

United States Circuit.

Sixth Sept. 2004.

Argued Submitted: Dec. and Filed:

Decided

Case Details

Case Name: In Re Abu-Ali Abdur'rahman, Movant. Abu-Ali Abdur'rahman v. Ricky Bell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 13, 2004

Citation: 392 F.3d 174

Docket Number: 02-6547, 02-6548

Court Abbreviation: 6th Cir.