Case Information

Sedley ALLEY, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant.

No. 04-5596.

United States Court of Appeals, Sixth Circuit.

April 11, 2005.

392 F.3d 822

should have spoken in language that is clear and definite."70 The policy underlying the rule of lenity is that of fairness to the accused:

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.71

The rule of lenity should not be applied haphazardly, however, but should be reserved "for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' of the statute."72 Consequently, we will resort to the rule of lenity only "if the text of a statute is opaque or ambiguous."73 "The rule-of-lenity is a rule of statutory construction," and should be employed only after other canons of construction have proven unsatisfactory in pursuit of a criminal statute's meaning.74

After conscientiously applying our circuit's rules of statutory construction, we cannot say with certainty that Congress intended to criminalize the possession of firearms by aliens who have been granted temporary protected status. It may be sound policy, but as such its wisdom has no call upon the judicial power. When Congress does unambiguously render conduct illegal through appropriate legislation, it is not our task to offer supplementary and clarifying amendments.

IV

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND with instructions to dismiss Orellana's indictment.

April 11, 2005.*

Paul R. Bottei, Asst. Federal Public Defender, Federal Public Defender's Office, Nashville, TN, for Petitioner-Appellee.

Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Respondent-Appellant.

Before: BOGGS, Chief Judge; MARTIN, RYAN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, and COOK, Circuit Judges.**

ORDER

On November 2, 2003, the district court issued an order staying Alley's execution and holding in abeyance any proceedings on his purported Rule 60(b) motion until this court decided In re Abdur'Rahman. This ruling was appealed to our court, and oral argument was held on June 16, 2004. On December 13, 2004, this court issued its opinion in Abdur'Rahman, 392 F.3d 174 (6th Cir.2004) (en banc), but the district court was unable to consider Abdur'Rahman's impact on the particular circumstances of Alley's filing because Alley's case was before this court on appeal.

On December 14, 2004, this court issued an opinion on that appeal, vacating the stay of execution and determining that Alley's filing could not be considered a proper Rule 60(b) motion under Abdur'Rahman. Alley v. Bell, 392 F.3d 822 (6th Cir.2004). Alley sought rehearing en banc.

We now grant rehearing en banc, and remand the case to the district court to determine, in the first instance, whether Alley's motion can be considered a proper Rule 60(b) motion under this court's opinion in Abdur'Rahman.

R. GUY COLE, JR., Circuit Judge, concurring, in which MARTIN, DAUGHTREY, MOORE, and CLAY, Circuit Judges joined.

I concur in the Court's decision vacating the panel opinion and remanding this case to the district court, but note that I would find that Alley's petition is properly considered a Rule 60(b) motion under this Court's precedent in In re Abu-Ali Abdur'Rahman, 392 F.3d 174 (6th Cir.2004) (en banc). Of course, to fall within Rule 60(b)'s timing exception, Alley must allege actual fraud, rather than mere misrepresentation, as one section of Alley's brief argues. See Fed.R.Civ.P. 60(b). However, Alley alleges that state attorneys were aware of the existence of significant exculpatory evidence, and that these attorneys nonetheless filed an affidavit in federal court stating that they had disclosed all exculpatory evidence, while willfully (or at least recklessly) concealing the evidence. These allegations are sufficient to allege fraud. See Demjanjuk v. Petrovsky, 10 F.3d 338, 348, 352-54 (6th Cir.1993).

Moreover, Alley's allegation regarding the affidavit, whether true or not, has nothing to do with his state court proceedings and, indeed, would not be relevant to a trial-court-related Brady claim. State attorneys certainly could have willfully or recklessly withheld evidence from the federal habeas court without having willfully or recklessly done so at Alley's state trial—in fact none of the attorneys about whose actions Alley complains appeared for the State at Alley's trial. As a result, the resolution of Alley's Rule 60(b) motion would be irrelevant to the constitutionality of his state trial, since success on this motion would merely serve to reopen his original habeas proceeding without determining facts that would require a finding that his state trial was unconstitutional. Thus, this claim is not effectively a second or successive petition challenging the validity of his state trial—to the contrary, Alley's allegations of fraud relate only to the validity of the federal habeas proceeding. See Abdur'Rahman, 392 F.3d at 181. Accordingly, under our precedent in Abdur'Rahman, Alley's motion is properly viewed as a Rule 60(b) motion unaffected by AEDPA, and the district court has jurisdiction to consider it.

Perhaps Alley's allegations of fraud are true, and perhaps they are not—obviously it will be up to the district court to consider the Rule 60(b) motion and determine if fraud actually occurred. I thus concur in this Court's decision to remand this matter to the district court.

Footnotes

70 Jones v. United States, 529 U.S. 848, 849-50, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260 (1952)).

71 McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (Holmes, J.).

72 Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)); see also United States v. Reedy, 304 F.3d 358, 368 n. 13 (5th Cir.2002) ("Despite its status as a tool of last resort, [the rule of lenity] has a long and established history in the Supreme Court and this circuit. Where, after seizing everything from which aid can be derived, the statute remains ambiguous, the rule of lenity may be applied.").

73 Administaff Cos. v. N.Y. Joint Bd., Shirt & Leisurewear Div., 337 F.3d 454, 457 (5th Cir. 2003).

74 United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001).

* This order was originally issued as an "unpublished order" filed on April 11, 2005. The court has now designated the order as one recommended for full-text publication.

** Judge Gibbons recused herself from participation in this matter.