OCTOBER TERM, 2002
Syllabus
ABDUR'RAHMAN
v. BELL, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 01-9094. Argued November 6, 2002-Decided December 10,2002
Certiorari dismissed.
James S.
Liebman argued the cause for petitioner.
With him on the briefs were
Thomas C.
Goldstein, by
appointment of the Court, 537 U. S. 809,
Amy Howe, William P.
Redick, Jr., and
Bradley MacLean.
Paul G.
Summers, Attorney General of Tennessee,
argued the cause for respondent. With him on the brief were
Michael E. Moore, Solicitor General,
Joseph F.
Whalen, Assistant Attorney General, and
Gordon W Smith,
Associate Solicitor General.
Paul J.
Zidlicky argued the cause for the State of
Alabama et al. as
amici curiae urging affirmance. With him
on the brief were
Bill Pryor, Attorney General of Alabama,
and
Nathan A. Forrester, Solicitor General,
John M.
Bailey, Chief State's Attorney of Connecticut,
Carter G.
Phillips, Gene C.
Schaerr, and the Attorneys General
for their respective States as follows:
Janet Napolitano of
Arizona,
Mark Lunsford Pryor of Arkansas,
Bill
Lockyer of California,
Ken Salazar of Colorado,
M.
Jane Brady of Delaware,
Robert A. Butterworth of
Florida,
Thurbert E. Baker of Georgia,
Alan G.
Lance of Idaho,
James E. Ryan of Illinois,
Steve
Carter of Indiana,
Carla J.
Stovall of Kansas,
Richard P. Ieyoub of Louisiana,
Thomas F. Reilly of
Massachusetts,
Mike McGrath of Montana,
Don Stenberg
of Nebraska,
Frankie Sue Del Papa of Nevada,
David
Samson of New Jersey,
Wayne Stenehjem of North Dakota,
Betty D. Montgomery of Ohio,
W A. Drew Edmondson of
Oklahoma,
D. Michael Fisher of Pennsylvania,
Charles M.
Condon of South Carolina,
Mark Barnett of South Dakota,
John Cornyn of Texas,
Mark L.
89
Shurtleff of Utah, Jerry W Kilgore of Virginia, Christine O.
Gregoire of Washington, and Darrell v: McGraw, Jr., of West
Virginia.*
PER CURIAM.
The writ of certiorari is dismissed as improvidently
granted.
JUSTICE STEVENS, dissenting.
The Court's decision to dismiss the writ of certiorari as
improvidently granted presumably is motivated, at least in part, by
the view that the jurisdictional issues presented by this case do
not admit of an easy resolution.1 I do not share that view.
Moreover, I believe we have an obligation to provide needed
clarification concerning an important issue that has generated
confusion among the federal courts, namely, the availability of
Federal Rule of Civil Procedure 60(b) motions to challenge the
integrity of final orders entered in habeas corpus proceedings. I
therefore respectfully dissent from the Court's disposition of the
case.
I
In 1988 the Tennessee Supreme Court affirmed petitioner's
conviction and his death sentence. His attempts to ob-
*Briefs of
amici curiae urging reversal were filed for
James F. Neal et al. by
Elizabeth G.
Taylor and
Ronald H. Weich; and for the National Association of
Criminal Defense Lawyers by
Deanne E. Maynard, Donald B.
Verrilli, Jr., Lisa B. Kemler, and
Edward M.
Chikofsky.
A brief of
amicus curiae urging affirmance was filed for
the Criminal Justice Legal Foundation by
Kent S.
Scheidegger.
IOn October 24, 2002, just two weeks before oral argument, the
Court entered an order directing the parties to file supplemental
briefs addressing these two questions: "Did the Sixth Circuit have
jurisdiction to review the District Court's order, dated November
27, 2001, transferring petitioner's Rule 60(b) motion to the Sixth
Circuit pursuant to 28 U. S. C. § 1631? Does this Court have
jurisdiction to review the Sixth Circuit's order, dated February
11,2002, denying leave to file a second habeas corpus petition?"
Post, p. 996.
90
tain postconviction relief in the state court system were
unsuccessful. In 1996 he filed an application for a writ of habeas
corpus in the Federal District Court advancing several
constitutional claims, two of which raised difficult questions. The
first challenged the competency of his trial counsel and the second
made serious allegations of prosecutorial misconduct. After hearing
extensive evidence on both claims, on April 8, 1998, the District
Court entered an order granting relief on the first claim, but
holding that the second was procedurally barred because it had not
been fully exhausted in the state courts.
Abdur'Rahman v.
Bell, 999 F. Supp. 1073 (MD Tenn. 1998). The procedural bar
resulted from petitioner's failure to ask the Supreme Court of
Tennessee to review the lower state courts' refusal to grant relief
on the prosecutorial misconduct claim.
Id., at
1080-1083.
The District Court's ruling that the claim had not been fully
exhausted appeared to be correct under Sixth Circuit precedent 2
and it was consistent with this Court's later holding in
O'Sullivan v.
Boerckel, 526 U. S. 838 (1999). In
response to our decision in
O'Sullivan, however, the
Tennessee Supreme Court on June 28, 2001, adopted a new rule that
changed the legal landscape. See In re: Order Establishing Rule 39,
Rules of the Supreme Court of Tennessee: Exhaustion of Remedies.
App. 278. That new rule made it perfectly clear that the District
Court's procedural bar holding was, in fact, erroneous.3
2 See
Silverburg v.
Evitts, 993
F.2d 124 (CA6 1993). Other Circuits had held that the
exhaustion requirement may be satisfied without seeking
discretionary review in a State's highest court. See,
e. g.,
Dolny v.
Erickson, 32 F.3d
381 (CA8 1994);
Boerckel v.
O'Sullivan,
135 F.3d
1194 (CA7 1998).
3 Tennessee Supreme Court Rule 39 reads, in relevant part: "In
all appeals from criminal convictions or post-conviction relief
matters from and after July 1, 1967, a litigant shall not be
required to petition for rehearing or 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
91
The warden appealed from the District Court's order granting the
writ, but petitioner did not appeal the ruling that his
prosecutorial misconduct claim was procedurally barred. The Court
of Appeals set aside the District Court's grant of relief to
petitioner,
226 F.3d
696 (CA6 2000), and we denied his petition for certiorari on
October 9, 2001, 534 U. S. 970. The proceedings that were
thereafter initiated raised the questions the Court now refuses to
decide.
On November 2, 2001, petitioner filed a motion, pursuant to Rule
60(b) of the Federal Rules of Civil Procedure,4 seeking relief from
the District Court judgment entered on April 8, 1998. The motion
did not assert any new constitutional claims and did not rely on
any newly discovered evidence. It merely asked the District Court
to set aside its 1998 order terminating the habeas corpus
proceeding and to decide the merits of the prosecutorial misconduct
claim that had been held to be procedurally barred. The motion
relied on the
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."
This type of action by the Tennessee Court was anticipated-indeed,
invited-by the concurring opinion in
O'Sullivan v.
Boerckel, 526
U. S. 838, 849-850 (1999) (opinion of SOUTER, J.).
4 Federal Rule of Civil Procedure 60(b) provides, in part: "On
motion and upon such terms as are just, the court may relieve a
party or a party's legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4) the judgment is void;
(5) the 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 the judgment. The motion
shall be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, order, or
proceeding was entered or taken."
92
ground that the Tennessee Supreme Court's new Rule 39
demonstrated that the District Court's procedural bar ruling had
been based on a mistaken premise.
Relying on Sixth Circuit precedent,5 on November 27, 2001, the
District Court entered an order that: (1) characterized the motion
as a "second or successive habeas corpus application" governed by
28 U. S. C. § 2244; (2) held that the District Court was therefore
without jurisdiction to decide the motion; 6 and (3) transferred
the case to the Court of Appeals pursuant to § 1631.7
Petitioner sought review of that order in both the District
Court and the Court of Appeals. In the District Court, petitioner
filed a notice of appeal and requested a certificate of
appealability. See Civil Docket for Case No. 96-CV-380 (MD Tenn.,
Apr. 23, 1996), App. 11. In the Court of Appeals, petitioner filed
the notice of appeal, again sought a certificate of appealability,
and moved the court to consolidate the appeal of the District
Court's Rule 60(b) ruling with his pre-
5 McQueen v. Scroggy,
99 F.3d
1302, 1335 (CA6 1996) ("We agree with those circuits that have
held that a Rule 60(b) motion is the practical equivalent of a
successive habeas corpus petition ... ").
6 Title 28 U. S. C. § 2244(b)(ii)(3)(A) provides: "Before a
second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to
consider the application."
7 Section 1631 provides: "Whenever a civil action is filed in a
court as defined in section 610 of this title or an appeal,
including a petition for review of administrative action, is
noticed for or filed with such a court and that court finds that
there is a want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action or appeal to any other
such court in which the action or appeal could have been brought at
the time it was filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for the court to
which it is transferred on the date upon which it was actually
filed in or noticed for the court from which it is transferred."
Under Sixth Circuit precedent, a district court presented with a
"second or successive" habeas application must transfer it to the
Court of Appeals pursuant to that section. See
In re Sims,
111 F.3d
45 (CA6 1997).
93
existing appeal of his original federal habeas petition.
Id., at 28. On January 18, 2002, the Court of Appeals
entered an order that endorsed the District Court's disposition of
the Rule 60(b) motion, specifically including its characterization
of the motion as a successive habeas petition. Nos. 98-6568/ 6569,
01-6504 (CA6), p. 2, App. 35, 36. In that order the Court of
Appeals stated that the "district court properly found that a Rule
60(b) motion is the equivalent of a successive habeas corpus
petition," and then held that Abdur'Rahman's petition did not
satisfy the gateway criteria set forth in § 2244(b)(2) for the
filing of such a petition.
Ibid. It concluded that "all
relief requested to this panel is denied."
Id., at 37. In a
second order, entered on February 11,2002, Nos.
98-6568/6569,01-6504 (CA6), id., at 38, the Court of Appeals
referred to additional filings by petitioner and denied them
alP
Thereafter we stayed petitioner's execution and granted his
petition for certiorari to review the Court of Appeals' disposition
of his Rule 60(b) motion.9 535 U. S. 1016 (2002).
II
The answer to the jurisdictional questions that we asked the
parties to address depends on whether the motion that petitioner
filed on November 2,2001, was properly styled as
8 One paragraph in that order reads as follows: "The order
construing an ostensible Rule 60(b) motion as an application for
leave to file a second habeas corpus petition ... is not an
appealable order in No. 01-6504, which is therefore DISMISSED for
lack of jurisdiction." App.39.
9 The two questions presented in the certiorari petition read as
follows: "1. Whether the Sixth Circuit erred in holding, in square
conflict with decisions of this Court and of other circuits, that
every Rule 60(b) Motion constitutes a prohibited 'second or
successive' habeas petition as a matter of law.
"2. Whether a court of appeals abuses its discretion in refusing
to permit consideration of a vital intervening legal development
when the failure to do so precludes a habeas petitioner from ever
receiving any adjudication of his claims on the merits." Pet. for
Cert.
94
a Rule 60(b) motion, or was actually an application to file a
second or successive habeas corpus petition, as the Court of
Appeals held. If it was the latter, petitioner clearly failed to
follow the procedure specified in 28 U. s. C. § 2244(b)(3)(A).lO On
the other hand, it is clear that if the motion was a valid Rule
60(b) filing, the Court of Appeals had jurisdiction to review the
District Court's denial of relief-either because that denial was a
final order from which petitioner filed a timely appeal, or because
the District Court had transferred the matter to the Court of
Appeals pursuant to § 1631.11 In either event the issue was
properly before the Court of Appeals, and-since the jurisdictional
bar in § 2244(b)(3)(E) does not apply to Rule 60(b) motions-we
certainly have jurisdiction to review the orders that the Court of
Appeals entered on January 18 and February 11, 2002. Thus, in order
to resolve both the jurisdictional issues and the questions
presented in the certiorari petition, it is necessary to identify
the difference, if any, between a Rule 60(b) motion and a second or
successive habeas corpus application.
As Judge Tjoflat explained in a recent opinion addressing that
precise issue, the difference is defined by the relief that the
applicant seeks. Is he seeking relief from a federal court's final
order entered in a habeas proceeding on one or more of the grounds
set forth in Rule 60(b), or is he seeking relief from a state
court's judgment of conviction on the basis of a new constitutional
claim? Referring to the difference
10 Section 2244(b)(3)(A) provides: "Before a second or
successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider
the application." Petitioner filed no such motion.
11 It is of particular importance that petitioner filed his
notice of appeal in both the Court of Appeals and the District
Court. Regardless of whether the District Court's transfer order
divested that court of jurisdiction to conduct further proceedings,
petitioner challenged the specific characterization of his Rule
60(b) motion before the two possible courts that could hear his
claim.
95
between a Rule 60(b) motion and a "second or successive" habeas
corpus petition, Judge Tjoflat wrote:
"The distinction lies in the harm each is designed to cure. A
'second or successive' habeas corpus petition, as discussed above,
is meant to address two specific types of constitutional claims by
prisoners: (1) claims that 'rel[y] on a new rule of constitutional
law,' and (2) claims that rely on a rule of constitutional law and
are based on evidence that 'could not have been discovered
previously through the exercise of due diligence' and would
establish the petitioner's factual innocence. 28 U. S. C. §
2244(b)(3)(A). Neither of these types of claims challenges the
district court's previous denial of relief under 28 U. S. C. §
2254. Instead, each alleges that the contextual circumstances of
the proceeding have changed so much that the petitioner's
conviction or sentence now runs afoul of the Constitution.
"In contrast, a motion for relief under Rule 60 of the Federal
Rules of Civil Procedure contests the integrity of the proceeding
that resulted in the district court's judgment.
"When a habeas corpus petitioner moves for relief under, for
example, Rule 60(b)(3), he is impugning the integrity of the
district court's judgment rejecting his petition on the ground that
the State obtained the judgment by fraud. Asserting this claim is
quite different from contending, as the petitioner would in a
successive habeas corpus petition, that his conviction or sentence
was obtained 'in violation of the Constitution or laws or treaties
of the United States.' 28 u. S. C. § 2254(a).
"In sum, a 'second or successive' habeas corpus petition, like
all habeas corpus petitions, is meant to remedy constitutional
violations (albeit ones which arise out of facts discovered or laws
evolved after an initial habeas corpus proceeding), while a Rule
60(b) motion is de-
96
signed to cure procedural violations in an earlier
proceeding-here, a habeas corpus proceeding-that raise questions
about that proceeding's integrity.
"As a final note, I would add that this rule is not just
consistent with case law, but it also comports with the fair and
equitable administration of justice. If, for example, a death row
inmate could show that the State indeed committed fraud upon the
district court during his habeas corpus proceeding, it would be a
miscarriage of justice if we turned a blind eye to such abuse of
the judicial process. Nevertheless, this is the result that would
occur if habeas corpus petitioners' Rule 60(b) motions were always
considered 'second or successive' habeas corpus petitions. After
all, a claim of prosecutorial fraud does not rely on 'a new rule of
constitutional law' and may not 'establish by clear and convincing
evidence that ... no reasonable factfinder would have found the
applicant guilty of the underlying offense.' 28 U. S. C. §
2244(b)(2). It is a claim that nonetheless must be recognized."
Mobley v.
Head, 306 F.3d
1096, 11001105 (CAll 2002) (dissenting opinion).
Judge Tjoflat's reasoning is fully consistent with this Court's
decisions in
Stewart v.
Martinez-Villareal, 523 U. S. 637 (1998), and
Slack v.
McDaniel, 529 U. S. 473 (2000).
Applying that reasoning to the present case, it is perfectly clear
that the petitioner
filed a proper Rule 60(b) motion.
(Whether it should have been granted is a different question.) The
motion did not purport to set forth the basis for a second or
successive challenge to the state-court judgment of conviction. It
did, however, seek relief from the final order entered by the
federal court in the habeas proceeding, and it relied on grounds
that are either directly or indirectly identified in Rule 60(b) as
possible bases for such relief. Essentially it submitted that the
"changes in the ... legal land-
97
scape,"
Agostini v.
Felton, 521 U. S. 203, 215
(1997), effected by Tennessee's new rule demonstrated that the
District Court's procedural bar ruling rested on a mistaken
premise. In petitioner's view, that mistake constituted a "reason
justifying relief from the operation of the judgment" within the
meaning of Rule 60(b)(6). Whether one ultimately agrees or
disagrees with that submission, it had sufficient arguable merit to
persuade at least four Members of this Court to grant his
certiorari petition.
III
In the District Court petitioner filed a comprehensive
memorandum supporting his submission that his Rule 60(b) motion
should be granted. App. 171-267. He has argued that the evidence
already presented to the court proves that the prosecutor was
guilty of serious misconduct; that affidavits executed by eight
members of the jury that sentenced him to death establish that they
would have not voted in favor of the death penalty if they had
known the facts that the prosecutor improperly withheld or
concealed from them; and that it is inequitable to allow an
erroneous procedural ruling to deprive him of a ruling on the
merits. In this Court, a brief filed by former prosecutors as
amici curiae urges us to address the misconduct claim,
stressing the importance of condemning the conduct disclosed by the
record.12 Arguably it would be appropriate for us to do so in order
to answer the second question presented in the certiorari petition.
In my opinion, however, correct procedure requires that the merits
of the Rule 60(b) motion be addressed in the first instance by the
District Court.
The District Court has already heard the extensive evidence
relevant to the prosecutorial misconduct claim, as well as the
evidence that persuaded both the Tennessee appellate court and two
federal courts that petitioner's trial counsel
12 See Brief for James F. Neal et al. as
Amici Curiae
24.
98
was ineffective (relief was denied on this claim based on a
conclusion that counsel's ineffectiveness did not affect the
outcome of the trial). That court is, therefore, in the best
position to evaluate the equitable considerations that may be taken
into account in ruling on a Rule 60(b) motion. Moreover, simply as
a matter of orderly procedure, the court in which the motion was
properly filed is the one that should first evaluate its
merits.
The Court of Appeals for the Sixth Circuit plainly erred when it
characterized petitioner's Rule 60(b) motion as an application for
a second or successive habeas petition and denied relief for that
reason. The "federalism" concerns that motivated this Court's
misguided decisions in
Coleman v.
Thompson, 501 U. S. 722 (1991),13
and
O'Sullivan v.
Boerckel,
526 U. S. 838 (1999), do
not even arguably support the Sixth Circuit's disposition of
petitioner's motion. I would therefore vacate the orders that that
court entered on J anuary 18 and February 11, 2002, and remand the
case to that court with instructions to direct the District Court
to rule on the merits of the Rule 60(b) motion.
13 "This is a case about federalism." 501 U. S., at 726.
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