Gonzalez v. Secretary for the Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-12054 April 26, 2004

THOMAS K. KAHN

________________________

CLERK

D. C. Docket No. 97-01935-CV-UUB

AURELIO O. GONZALEZ,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

James Crosby, Secretary,

Respondent-Appellee.

________________________

No. 02-12483

________________________

D. C. Docket Nos. 96-08752 CR-WJZ

& 90-08108 CR-WJZ

EMIL LAZO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

________________________

No. 02-14224

________________________

D. C. Docket No. 99-00023 CV

STEPHEN A. MOBLEY,

Petitioner-Appellant,

versus

DERRICK SCHOFIELD, Warden,

Georgia Diagnostic and

Classification Center,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 26, 2004)

2

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,

Circuit Judges.*

CARNES, Circuit Judge:

The Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132,

110 Stat. 1214 (1996), clamped down on second and successive petitions filed by

state prisoners seeking federal habeas corpus relief under 28 U.S.C. § 2254, and

those filed by federal prisoners seeking relief under 28 U.S.C. § 2255. See 28

U.S.C. §§ 2244(a)-(b), 2255 ¶ 8. Naturally, habeas petitioners and § 2255 movants

have sought to circumvent the AEDPA’s restrictions on second round collateral

attacks in federal courts. One of the most popular vehicles used in the attempted

end-runs is a Fed. R. Civ. P. 60(b) motion requesting that the prior judgment

denying relief be set aside.

Given the number of cases involved and the importance of the issues, we

entered an order granting hearing or rehearing en banc in three cases in order to

answer some common questions that have arisen about the use of Rule 60(b)

motions to obtain relief from judgments that denied § 2254 relief (in two of the

cases before us), or § 2255 relief (in one of the cases). Gonzalez v. Sec’y of the

*

Judge William H. Pryor Jr., became a member of the Court on February 20, 2004,

which was after this case was submitted for decision, and he did not participate in the decision of

it.

3

Dep’t of Corr., 326 F.3d 1175 (11th Cir. 2003). Specifically, we asked each of the

three would-be appellants to brief and argue, insofar as it related to his case: 1)

whether the certificate of appealability requirement contained in 28 U.S.C. §

2253(c) applies to an attempted appeal of the denial of Rule 60(b) relief from a

judgment denying § 2254 or § 2255 relief; 2) if so, whether a certificate of

appealability should be issued in his case; 3) what standards should govern Rule

60(b) motions aimed at judgments in § 2254 or § 2255 proceedings, that is, when

should they be granted; and 4) was it an abuse of discretion for the district court to

deny the Rule 60(b) motion in his case?

I.

We begin with the relevant facts and procedural history of each of the three

cases before us, in the sequence in which the panel decisions or orders were issued

in them.

A.

A decade ago at a retrial Stephen Mobley was convicted and sentenced to

death for the 1991 murder of a Domino’s Pizza employee during an armed robbery.

See Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (1995). During the sentencing

phase, Mobley introduced as potential mitigating circumstance evidence that he

4

had offered to plead guilty in exchange for any punishment other than death. In

rebuttal the prosecution called Andrew Fuller, who had been the district attorney

when the prosecution began but no longer was. Fuller testified to the factors which

had led him to seek the death penalty. He said those factors included the actual

circumstances of the crime, and Mobley’s “pure unadulterated meanness” which

had been aptly demonstrated by a number of his comments since he killed the

victim in cold blood. Mobley v. Head, 306 F.3d 1096, 1097-99 (11th Cir. 2001)

(Tjoflat, J., dissenting). Fuller also testified that the victim’s family supported his

decision to seek a death sentence. Id. at 1098-99. The victim’s family’s feelings

about the penalty had not carried much weight in his decision; he told the jury that

“95 percent of the decision [was] made based on the evidence [he saw] that

describe[d] the defendant for [him].” Id. at 1099.

Among the issues Mobley raised in his direct appeal was a contention that

Fuller should not have been permitted to testify about the factors that influenced

him to seek a death sentence in the case. Mobley, 265 Ga. at 298-99, 455 S.E.2d at

69-70. The Georgia Supreme Court rejected that contention, after concluding that

Fuller’s testimony about why he had turned down Mobley’s plea offer was relevant

since Mobley had put in evidence that he had made the offer. Id. The Court,

however, had second thoughts about permitting a capital defendant to introduce

5

evidence that he had offered to plead guilty in return for a sentence less than death.

The first thoughts of the Georgia Supreme Court on the subject had come

during an earlier appeal Mobley filed following a mistrial due to error at his first

trial. Mobley v. State, 262 Ga. 808, 426 S.E.2d 150 (1993). Mobley asked the

Georgia Supreme Court, which had the case before it primarily to decide a double

jeopardy issue arising from the mistrial, also to decide whether he could introduce

evidence at the retrial that he had offered to plead guilty conditioned on not

receiving the death penalty. Id. at 810-11, 426 S.E.2d at 152-53. The Court said

that he could, but that if he did the State would be allowed to explain its reasons for

insisting on a death sentence. Id. And that is how things played out at the retrial:

Mobley put in evidence that he had offered to plead guilty in return for a sentence

less than death; and Fuller, the former prosecutor who had rejected that offer,

testified about why he had decided nothing less than death would do.

When the case returned to it on direct appeal after the retrial, the Georgia

Supreme Court had an opportunity to see the problems that had sprung from the

evidentiary box that its ruling in the first appeal had opened. The Court realized

that permitting testimony about a defendant’s plea offer and the reasons it had been

rejected would likely lead to attorneys on both sides testifying and could also put

highly inflammatory matters before the jury. Facing up to its mistake, the Court

6

announced that evidence of a defendant’s conditional guilty plea offer and its

rejection would not thereafter be allowed in Georgia capital cases. Mobley, 265

Ga. at 300, 455 S.E.2d at 70 (“[W]e now hold that offers by defendants to plead

guilty and testimony of prosecutors regarding their reasons for rejecting such offers

are no longer admissible.”). It was too late to close that evidentiary box in

Mobley’s case, of course, but the Georgia Supreme Court decided that neither the

testimony concerning the plea offer and its rejection nor anything else that

happened at the retrial had been reversible error. It affirmed Mobley’s conviction

and death sentence. Id. at 301, 455 S.E.2d at 71.

Thereafter, Mobley sought state habeas relief which was denied, see Turpin

v. Mobley, 269 Ga. 635, 502 S.E.2d 458 (1998), and federal habeas relief which

was denied by the district court on May 26, 2000, a denial which we affirmed, see

Mobley v. Head, 267 F.3d 1312 (11th Cir. 2001), cert. denied, 536 U.S. 968, 122

S. Ct. 2682 (2002) (mem.); our mandate was issued on June 9, 2002.

On July 16, 2002, which was two-and-a-half weeks after the United States

Supreme Court denied certiorari in his appeal from the denial of federal habeas

relief, Mobley filed an “Extraordinary Motion for New Trial as to Sentence” in

state court. That motion sought a new sentencing stage trial where Mobley could

present the victim’s mother to testify that the family had acquiesced in the

7

prosecutor’s decision to seek the death penalty only because they had been

unaware that a sentence of life without parole was an option. The state trial court

denied Mobley’s motion, reasoning that even if the testimony of the victim’s

mother were presented to a jury, “it [could] not reasonably be concluded that the

opposition of the victim’s family to the death penalty . . . would probably produce

a different verdict.” See Mobley, 306 F.3d at 1099. Mobley applied to the

Georgia Supreme Court for a discretionary appeal of the denial of his motion, but

his application was denied. Id. His execution was set for August 5, 2002.

On August 2, 2002, Mobley filed in the federal district court a “Motion for

Stay of Execution and for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b).”

The judgment he sought relief from is the one the district court had entered on May

26, 2000, denying his § 2254 habeas petition. The district court denied Mobley’s

Rule 60(b) motion on August 3, 2002 in an order stating that “petitioner concedes,

moreover, that the respondent is correct in asserting that pursuant to the current

state of the law in the Eleventh Circuit, this motion must be treated as a second or

successive habeas action.” The district court thought that our prior decision in

Felker v. Turpin, 101 F.3d 657 (11th Cir. 1996), required that all Rule 60(b)

motions in habeas cases be treated as second or successive petitions.

8

Because it treated Mobley’s Rule 60(b) motion as a second or successive

habeas petition, the district court was compelled to reject it. The reason is that

Mobley had not obtained an order from this Court permitting the district court to

consider a second or successive petition, as he was required to do by §

2244(b)(3)(A); he could not obtain one since the ground upon which relief was

sought fit neither of the two circumstances that are set out in § 2244(b)(2). Mobley

filed an application for a certificate of appealability so that he could appeal the

denial of his Rule 60(b) motion, and the district court denied it.

On August 5, 2002, Mobley came to this Court with the following filings:

an application under § 2253(c) for a certificate of appealability so that he could

appeal the district court’s denial of his Rule 60(b) motion; a motion to recall the

mandate this Court had issued on June 9, 2002 in conjunction with our affirmance

of the denial of Mobley’s first habeas petition; and, a motion for a stay of

execution. Mobley, 306 F.3d at 1099-1100. That same day, a panel of this Court

entered an order staying the execution. Mobley v. Head, No. 02-14224 (August 5,

2002) (per Barkett and Wilson, JJ., by quorum).

On September 18, 2002, a panel of this Court, with one judge dissenting,

extended the stay of execution that it had previously granted. Mobley v. Head, 306

F.3d 1096 (11th Cir. 2002). The panel majority believed that in denying Mobley’s

9

Rule 60(b) motion the district court had correctly interpreted our prior Felker

decision, but anticipated that the Supreme Court would soon decide in

Abdur’Raham v. Bell, 535 U.S. 1016, 122 S. Ct. 1605 (mem.) (granting certiorari

on April 22, 2002), whether all Rule 60(b) motions are subject to the restrictions

applicable to second or successive petitions. Wanting the benefit of the upcoming

decision in Abdur’Raham, the majority granted Mobley a stay without ruling on

any of his other applications or motions.

Judge Tjoflat dissented from issuance of the stay of execution, and would

have also denied: Mobley’s application for a certificate of appealability; his

motion to recall the mandate that had issued in connection with our prior decision

in the case; and an application for permission to file a second or successive habeas

petition, which Judge Tjoflat thought Mobley had filed in the case, see n.19 below.

Mobley, 306 F.3d at 1098-1107. In Judge Tjoflat’s view, the district court and

panel majority had misinterpreted our Felker decision, which he believed did not

and could not have held that all Rule 60(b) motions are to be denied as second or

successive petitions. Id. at 1102-1105. He suggested instead that, consistent with

Felker, “a Rule 60(b) motion should only be considered a second or successive

habeas corpus petition if the former seeks to assert constitutional violations and

thus is the practical equivalent of the latter.” Id. at 1104 (internal marks omitted).

10

A claim that the State had perpetrated a fraud on the federal court in order to obtain

the judgment denying the habeas petition could be raised in a Rule 60(b)(3)

motion, but Mobley’s claim alleged at most a fraud on the state court, not one on

the federal court. Id. at 1105-06. Under Judge Tjoflat’s view of the proper

relationship of Rule 60(b) and the restrictions on second or successive petitions,

Mobley’s motion should have been denied by the district court, albeit for different

reasons than that court gave.

After Mobley was granted a stay of execution in light of the upcoming

decision in Abdur’Rahman, the Supreme Court quashed the writ of certiorari in

that case as improvidently granted. Abdur’Rahman v. Bell, 537 U.S. 88, 123 S. Ct.

594 (2002). Thereafter, we voted to hear the Mobley case en banc. See Gonzalez,

326 F.3d at 1176.

B.

The second would-be appellant is Emil Lazo, who was convicted in 1991 of

conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §

846, and possession with intent to distribute cocaine, in violation of 21 U.S.C §

841(a)(1), and was sentenced to 293 months imprisonment. He appealed, arguing

only that the evidence was insufficient to support his conviction, and in 1993 we

affirmed his conviction. See Lazo v. United States, 314 F.3d 571 (11th Cir. 2002),

11

vacated for reh’g en banc, 326 F.3d 1175 (11th Cir. 2003). In 1996 Lazo filed a §

2255 motion to vacate his sentence based on ineffective assistance of counsel at

sentencing, and in 1998 the district court denied relief. Lazo requested a certificate

of appealability, but the district court denied him one. See id. Lazo then came to

this Court with an application for a certificate of appealability, and also filed a

second request for one in the district court. Both efforts were unsuccessful, and in

August 1999 we dismissed Lazo’s attempted appeal for lack of a certificate of

appealability. See id.

In January 2002, Lazo filed a pro se motion in the district court styled:

“Motion for Relief From Judgment in the Collateral Proceedings filed under 28

U.S.C. § 2255 Pursuant to the Federal Rules of Criminal Procedure 12(b)(2) &

Federal Rules of Civil Procedure 60(b)(4) and/or (6) Under the Premise the

Otherwise Final Judgment is Void.” See id. His motion and an accompanying

brief put forward the contention that the indictment on which Lazo had been tried

in 1991 was insufficient to give the district court subject matter jurisdiction for a

number of asserted reasons, including failure to allege interference with interstate

or foreign commerce, and failure to provide him with notice of the penalty he

faced. Two months after Lazo’s motion was filed, the district court summarily

denied it. Lazo then filed a notice of appeal. The district court granted Lazo

12

permission to proceed in forma pauperis, but denied his motion for a certificate of

appealability. See id. at 573.

When the case reached this Court on Lazo’s notice of appeal, a panel

characterized the threshold issue as whether Lazo was required to obtain a

certificate of appealability before he could appeal the denial of his motion. See id.

at 573. Inquiring into the true nature of the motion, the panel explained that a

§ 2255 motion and a Rule 60(b) motion have different purposes. A § 2255 motion

is aimed at having a judgment of conviction and sentence set aside because of

some constitutional violation, jurisdictional defect, or other ground that makes the

judgment subject to collateral attack. In contrast, a Rule 60(b) motion is aimed at

having a prior judgment denying § 2255 relief from a conviction and sentence set

aside because of some problem with or defect in the proceeding that led to the

judgment denying § 2255 relief. Id.

Examining the substance of what Lazo had filed in the district court, the

panel concluded that it was not a true Rule 60(b) motion, but instead was “the

functional equivalent of a successive § 2255 motion.” Id. It was that, because it

did not directly attack the district court’s 1998 judgment denying § 2255 relief, but

instead went after the 1991 judgment of conviction and sentence on a number of

grounds not raised in the earlier § 2255 motion. Because Lazo’s latest filing

13

merely raised new grounds of attack on his 1991 conviction and sentence, the panel

thought it “readily apparent that the motion is really a successive § 2255 motion in

60(b)’s clothing.” Id. As a result, the panel concluded that the district court’s

order denying that motion was indeed “a final order in a proceeding under section

2255” within the meaning of § 2253(c)(1)(B), which requires a certificate of

appealability before any appeal can be taken. Id. at 573-74.

The panel construed the notice of appeal Lazo had filed as an application to

this Court for a certificate of appealability, and denied it because reasonable jurists

would not find it debatable whether the district court had properly denied Lazo’s

latest motion. Given his undisputed failure to obtain the certificate required by §

2255 ¶ 8 before filing what amounted to a second or successive motion, the district

court clearly had no choice but to deny that motion. Id. at 574-75. After denying

Lazo a certificate of appealability, the panel dismissed his appeal. Id. at 575.

We later vacated the panel’s order so that we could reconsider the case en

banc. Gonzalez, 326 F.3d at 1176.

C.

Our final would-be appellant is Aurelio Gonzalez, who was convicted in a

Florida state court for robbery with a firearm, and was sentenced to 99 years

imprisonment in 1992. He did not file a direct appeal, but in November of 1996 he

14

filed in state court a collateral motion attacking his conviction on grounds of newly

discovered evidence which he claimed showed that his guilty plea was

unintelligent, unknowing, and involuntary. The state trial court denied relief in

December of 1996. Gonzalez appealed, but a state appellate court affirmed.

Gonzalez v. State, 692 So. 2d 900 (Fla. 3d DCA 1997) (table).

On June 17, 1997, Gonzalez filed a § 2254 petition attacking his conviction

on the same grounds he had asserted in the collateral motion he had filed in state

court. On September 9, 1998, the district court dismissed his habeas petition as

time-barred, on the ground that it had not been filed within the one-year statute of

limitations set out in § 2244(d)(1). Initially, the district court granted a certificate

of appealability, but we vacated it and remanded for clarification because the

certificate did not specify any issues, which was contrary to § 2253(c)(3). On

remand the district court reconsidered and denied Gonzalez a certificate of

appealability, and on April 6, 2000 so did a judge of this Court. That was the end of

Gonzalez’s appeal from the dismissal of his habeas petition.

A little over a year later, in July of 2001, Gonzalez filed a Rule 60(b) motion

asking the district court to relieve him of its final judgment dismissing his federal

habeas petition as time barred. The ground he gave was the intervening Supreme

Court decision in Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361 (2000), which

15

interpreted the “properly filed” clause of the tolling provision contained in §

2244(d)(2).1 The district court denied Gonzalez’s motion for Rule 60(b) relief on

March 5, 2002, and Gonzalez filed a notice of appeal from that denial. The district

court declined to grant a certificate of appealability, but a judge of this Court

granted one on the issue of whether the district court’s September 9, 1998 dismissal

of Gonzalez’s habeas petition was error.

When the appeal authorized by that certificate reached a panel of this Court

for decision, it decided that the issue which had been specified in the certificate of

appealability is not directly related to the order Gonzalez is seeking to appeal.

Gonzalez v. Sec’y for the Dep’t of Corr., 317 F.3d 1308 (11th Cir. 2003), vacated

for rehearing en banc, 326 F.3d 1175 (11th Cir. 2003). Gonzalez is not seeking to

appeal the 1998 judgment dismissing his habeas petition; his attempt to appeal that

judgment ended unsuccessfully in the year 2000, when he was denied a certificate

of appealability for that purpose. What Gonzalez is seeking to appeal now, as the

panel explained, is the district court’s 2002 order denying his Rule 60(b) motion for

relief from the judgment that had dismissed his habeas petition in 1998. Id. at 1310.

1

28 U.S.C. § 2244(d)(2) specifies that: “The time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this

subsection.” That subsection includes the one-year statute of limitations which had provided the

basis for the dismissal of Gonzalez’s habeas petition.

16

If a certificate of appealability is required for an appeal from the denial of Rule

60(b) relief in a habeas case, Gonzalez needs one focusing on that 2002 order and

any of the issues it presents. Id.

The Gonzalez panel decided that a certificate of appealability is required

before an appeal of the denial of Rule 60(b) relief from a judgment denying habeas

relief is permitted. In so holding, the panel aligned this circuit with five of the six

other circuits that have addressed the issue. Id. at 1310-12. The Gonzalez decision

went beyond that in the Lazo case – which had involved a second or successive

petition parading as a Rule 60(b) motion – and “effectively extend[ed] Lazo’s

holding to appeals involving the denial of true Rule 60(b) motions.” Id. at 1312.

The panel characterized Gonzalez’s filing as a true Rule 60(b) motion, because it

does not assert a new ground for relief from his conviction and sentence or re-assert

an old one; instead, the motion is aimed solely at re-opening the judgment that had

been entered against Gonzalez in his prior § 2254 proceeding on statute of

limitations grounds without regard to the merits of any claims. Id. at 1311.

As a ground for re-opening that judgment, Gonzalez’s latest motion asserted

that Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361 (2000), had changed the

controlling law about which time spent in state post-conviction proceedings is to be

excluded from the running of the statute of limitations. The Artuz decision, which

17

did change the law of this circuit on that point, see Weekley v. Moore, 244 F.3d

874, 876 (11th Cir. 2001), had not been released until just over two years after the

judgment dismissing Gonzalez’s § 2255 motion as time barred had been entered,

and seven months after his efforts to appeal that judgment had ended.

The panel did not imply any view about whether Artuz would change the

statute of limitations result in the case, Gonzalez 317 F.3d at 1314 n.3, concluding

instead that even if it would, that is not a valid ground for Rule 60(b) relief. One

reason the Gonzalez panel gave is that it was bound by the rule announced in

Mobley, which is that in the post-AEDPA era all Rule 60(b) motions are to be

treated as second or successive petitions and denied on that basis unless they fit

within the narrow exceptions for them set out in § 2244(b)(2). Id. at 1312. The

other reason the panel gave is that even without the Mobley rule, the result would

have been the same in Gonzalez’s case; his motion also would have been denied

under the pre-AEDPA circuit law governing when judgments denying habeas relief

can be reopened based on changes in the applicable law. See id. at 1313. Because

the Gonzalez panel believed that result was not debatable among jurists of reason, it

denied a certificate of appealability in the case and ordered the appeal dismissed.

Id. at 1313-14.

18

We later vacated the panel’s order and reinstated the case for consideration

en banc. Gonzalez, 326 F.3d at 1176.

II.

We begin our discussion of the law with this preliminary note. Throughout

this opinion we do not distinguish between the three cases before us based upon

whether they involve state prisoners and § 2254 law or federal prisoners and § 2255

law, because there is no material difference in the relevant statutory language, see §

2253(c)(1)(A) & (B), or in how the issues arising from that language should be

resolved. See Gonzalez, 317 F.3d at 1311 n.1; see also Walker v. Crosby, 341 F.3d

1240, 1249 n.4 (11th Cir. 2003); compare § 2244(b) with § 2255 ¶ 8. What we say

in this opinion about certificates of appealability and Rule 60(b) motions as they

relate to § 2254 proceedings applies equally to § 2255 proceedings, and vice versa.

When we say “habeas petition” we mean to include “§ 2255 motion,” and our use of

“habeas petitioner” includes “§ 2255 movant” as well.

A.

The Lazo and Gonzalez panel decisions address the certificate of

appealability requirement as it applies to two broad categories of Rule 60(b)

motions. Lazo concerns the category most frequently seen, which is second or

successive § 2255 motions or § 2254 petitions cross-dressed as Rule 60(b) motions.

19

Despite the clothing Lazo put on it, his is not a true Rule 60(b) motion because it

does not concern a defect in the earlier § 2255 proceeding which led to the

judgment denying relief to Lazo. Stripped to its essence, Lazo’s motion attacks the

underlying judgment of conviction and sentence itself on grounds not asserted in

the prior § 2255 proceeding. Lazo, 314 F.3d at 572-73.

The other category of Rule 60(b) motions are the true ones. An example of

them is the motion filed in the Gonzalez case. That motion seeks to set aside the

prior judgment denying habeas relief on a traditional Rule 60(b) ground for relief

from a prior judgment, or at least on a ground that was sometimes used during the

pre-AEDPA era. Gonzalez, 317 F.3d at 1310-11. The ground is an intervening

change in the law applicable to the original § 2254 petition and its claims. Id. at

1311; see generally Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir. 1987) (prior to

enactment of the AEDPA, Rule 60(b) relief sometimes available as a result of

change in the law).

The Lazo panel held that the § 2253(c)(1) requirement of a certificate of

appealability applies to the denial of a Rule 60(b) motion, at least when the motion

is the functional equivalent of a second or successive petition, Lazo, 314 F.3d at

573-74, which is to say when it is not a true Rule 60(b) motion. The Gonzalez

panel took that holding one step further, concluding that a certificate of

20

appealability is required before there can be an appeal of any Rule 60(b) motion,

even a true one. Gonzalez, 317 F.3d at 1311-12.

B.

We agree with the Gonzalez panel that a certificate of appealability is

required for the appeal of any denial of a Rule 60(b) motion for relief from a

judgment in a § 2254 or § 2255 proceeding. This position is in line with the

decisions of five of the six other circuits to consider the question. See Kellogg v.

Strack, 269 F.3d 100, 103 (2d Cir. 2001); Rutledge v. United States, 230 F.3d 1041,

1046-47 (7th Cir. 2000); Morris v. Horn, 187 F.3d 333, 336 (3d Cir. 1999);

Langford v. Day, 134 F.3d 1381, 1382 (9th Cir. 1998); Zeitvogel v. Bowersox, 103

F.3d 56, 57 (8th Cir. 1996). The only court of appeals to go the other way, the Fifth

Circuit, has offered no explanation for its different direction. See Dunn v. Cockrell,

302 F.3d 491, 492 (5th Cir. 2002).

We find persuasive the explanation the Second Circuit has given for the

majority position. See Kellogg, 269 F.3d at 103. By its plain terms, the §

2253(c)(1) certificate of appealability requirement applies to “the final order” in a §

2254 or § 2255 proceeding, and Rule 60(b) motions have been considered final

orders for appellate purposes in other types of proceedings. See id.; Stone v. INS,

514 U.S. 386, 401, 115 S. Ct. 1537,1547 (1995) (noting that the denial of a Rule

21

60(b) motion is a separate final order). Because § 2253(c)(1) refers to “the final

order,” it could be argued that there is only one true final order in each habeas case

to which the certificate of appealability requirement applies. However, in the

Dictionary Act, which is codified at 1 U.S.C. § 1, Congress has made it clear that in

the statutes it enacts, “unless the context indicates otherwise words importing the

singular include and apply to several persons, parties, or things . . . .” See United

States v. Fior D'Italia, Inc., 536 U.S. 238, 263, 122 S. Ct. 2117, 2133 (2002)

(“under the Dictionary Act, 1 U.S.C. § 1, a statutory provision in the singular may

include the plural where that would work in the context”); Barr v. United States,

324 U.S. 86, 91, 65 S. Ct. 522, 525-26 (1945) (citing 1 U.S.C. § 1 as authority for

construing the statutory term “buying rate” to include more than one buying rate);

Dobard v. Johnson, 749 F.2d 1503, 1509 (11th Cir. 1985) (citing 1 U.S.C. § 1 as

authority for the conclusion that “the alternative forum provision of Sec. 2241(d),

though phrased in the singular, would have been intended by Congress to be treated

as in the plural”). Here, the context does not indicate otherwise, and paying

attention to the Congressional command in 1 U.S.C. § 1 carries out the evident

intent behind § 2253(c)(1). There is no reason to treat orders denying habeas relief

and subsequent orders denying motions to reopen those earlier orders differently for

22

purposes of the certificate of appealability requirement, and there is every reason to

treat them the same.2

The certificate of appealability is a threshold or gateway requirement which

serves to filter out from the appellate process cases in which the possibility of

reversal is too unlikely to justify the cost to the system of a full appellate

examination. See Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 1040

(2003) (By enacting the certificate of appealability provisions in the AEDPA,

“Congress confirmed the necessity and the requirement of differential treatment for

those appeals deserving of attention from those that plainly do not.”). There can be

no question that the certificate of appealability filter applies when a prisoner is

appealing the denial of relief in his collateral attack on the judgment of conviction

and sentence itself. See 28 U.S.C. § 2253(c).

Given that, it would make no sense to remove the filter when the same

prisoner is appealing the denial of Rule 60(b) relief from the judgment denying

relief, which is a kind of collateral attack on the rejection of his collateral attack.

2

Although it agrees with us that the word “the” in the statutory term “the final order” can

be read in the plural, the dissent (we will use “the dissent” throughout this opinion to refer to

Judge Tjoflat’s separate opinion specially concurring in part and dissenting in part) thinks it

should not be read that way unless doing so would carry out the legislative intent behind the

certificate of appealability requirement in § 2253(c)(1). Dissenting Op. at 108. We agree with

that. Our disagreement with the dissent stems from our recognition that the evident legislative

intent behind requiring such certificates in habeas cases was to filter out undeserving appeals

with a minimum of judicial effort, and that intent would be frustrated unless “the final order” is

interpreted to include final orders denying Rule 60(b) relief in habeas cases.

23

The more removed an attack is from the judgment responsible for the incarceration

of a prisoner, the less likely the attack is to have merit; or, at the least, the less likely

it is to have merit that matters. The Second Circuit phrased the same thought this

way: “[I]t would be rather anomalous for Congress to have intended to screen out

unmeritorious appeals from the denials of habeas corpus petitions and yet not have

wished to apply this same screen to 60(b) motions seeking to revisit those denials.”

Kellogg, 269 F.3d at 103. Congress sometimes does anomalous things, but the

language it used in § 2253(c)(1) does not persuade us that it intended to act in an

anomalous and inconsistent way here.

While we respect the dissent’s different view on the issue of whether

certificates of appealability are required, we find the reasoning behind its view

unpersuasive. To begin with, the dissent’s criticism of our conclusion on this issue

is based at least in part on a misunderstanding of it. The dissent says in Part IV that

we are holding a petitioner must apply to this Court for leave to file his Rule 60(b)

motion. Dissenting Op. at 113-14. Not so. Rule 60(b) motions must be filed in the

district court, not in this Court, and nothing we say is intended to suggest anything

to the contrary. Our conclusions have to do with the proper scope of Rule 60(b)

motions in habeas proceedings and with whether a certificate of appealability is

required to seek review of a district court’s denial of one in a habeas proceeding.

24

We change nothing about where Rule 60(b) motions must be filed, which is in the

district court. If the motion does not meet the requirements we outline today, the

district court must deny it. If a petitioner wishes to appeal the denial of a Rule

60(b) motion aimed at a judgment denying habeas relief, he must obtain a certificate

of appealability in order to do so.

The dissent’s criticism that no Rule 60(b) motion could ever meet the

standards set out for certificates of appealability in § 2253(c)(1) & (c)(2), which

provides that they “may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right,” is obviously unfounded. See

generally Dissenting Op. Part IV. Our disposition of two of the cases in front of us

proves how unfounded it is. We conclude in Part III of this opinion that two of the

three petitioners are entitled to a certificate of appealability, and we issue each of

them one. We do so applying guidance the Supreme Court provided us in Slack v.

McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000), which dealt with certificate of

appealability applications to review procedurally based denials in habeas cases.

That which is done is not impossible.

Furthermore, a central premise of the dissent’s impossibility argument is that

the decision of whether to issue a certificate of appealability must be confined to

consideration of the debatability of a constitutional issue. It must be, the dissent

25

reasons, because the certificate of appealability standard is whether “the applicant

has made a substantial showing of the denial of a constitutional right.” See §

2253(c)(2). Appealing as it might otherwise be, that reasoning is at war with the

Supreme Court’s holding in the Slack case. Construing and applying the identical

statutory language, the Court in Slack concluded that in deciding whether to issue a

certificate of appealability to permit an appeal from the denial of a habeas petition

on procedural grounds, courts must consider the debatability of the procedural

ruling, and no certificate may be issued if the petitioner fails to make a substantial

showing that the procedural ruling was wrong. 529 U.S. at 484, 120 S.Ct. at 1604.

The dissent’s position that the certificate of appealability standard cannot be applied

to any non-constitutional questions will be news to the Supreme Court, because it is

impossible to reconcile that position with the rule the Court announced in Slack.

The dissent’s position that a certificate of appealability is never required to

appeal the denial of Rule 60(b) relief in a habeas case is also contrary to the

decisions of other circuits. The dissent attempts to distinguish most of the decisions

of the other circuits that have addressed the issue and have concluded that a

certificate of appealability is required to appeal a Rule 60(b) denial in a habeas case.

It says that in those cases the Rule 60(b) motion was not a “true” one and for that

reason was correctly denied by the district court. Dissenting Op. at 110. But that

26

attempted distinction will not wash. There is nothing in the language or purpose of

§ 2253(c) that distinguishes between Rule 60(b) motions based upon whether they

are “true” ones or not. And the dissent never explains why the nature of the Rule

60(b) motion should determine whether a certificate of appealability is required to

appeal from the denial of it.3 The statutory language covers, and the certificate

requirement applies, to all of them or to none. And the clear weight of authority,

with which we agree, is that it applies to all of them.

Although the dissent attempts to distinguish much of the precedent against its

position with the suggestion that the certificate of appealability requirement applies

to the appeals of some but not all Rule 60(b) denials in habeas cases, the dissent’s

core position seems to be that the certificate of appealability requirement applies to

no Rule 60(b) appeals at all.4 For reasons that should be apparent, that position

3

Going back to the singular versus plural question relating to § 2253(c)’s use of the term

“the final order,” the dissent’s attempt to explain away the other circuits’ authority massed

against its position would mean that where the Rule 60(b) motion that is denied is a true one,

“the final order” was used by Congress in the singular sense; where the motion denied is not a

true one, it was used by Congress in the plural sense. See Dissenting Op. at 108-09. That

bipolar construction does not make sense.

4

We qualify our description of the dissent’s position with “seems to be,” because there is

some inconsistency about this subject in its opinion. Part III.A of the dissenting opinion clearly

asserts the position that the § 2253(c) requirement does not apply to appeals from the denial of

any Rule 60(b) motions, because it pertains only to the first order denying habeas relief.

Dissenting Op. at 109. Yet, in the very next part of the same opinion, the dissent attempts to

reconcile its position with this Court’s decision in Lindsey (requiring a certificate before an

appeal from the denial of a Rule 60(b) motion in that habeas case) by at least implying that a

certificate is required if the Rule 60(b) motion is not a true one. See Dissenting Op. Part III.B at

page 112.

27

would reverse the rational order of things. As we have already explained, not

applying the certificate requirement to a Rule 60(b) denial would make it easier to

appeal the rejection of a collateral attack on the denial of habeas relief than it is to

appeal the initial denial of habeas relief itself. It would defeat Congress’ obvious

intent that the certificate of appealability requirement be an important and effective

tool to weed out unmeritorious appeals and bring about greater finality of judgment

in habeas cases.

The dissent fails to face up to those inescapable and undesirable results of its

position. It does not even attempt to explain why Congress would have wanted to

cut out clearly non-meritorious appeals from the denial of habeas relief, while at the

same time letting all clearly non-meritorious appeals from the subsequent denial of

Rule 60(b) in habeas cases proceed to burden the appellate courts and undermine

finality of judgment.

The burden would be significant. Under our position a single judge decides

whether the appeal from a denial of Rule 60(b) relief has enough arguable merit to

proceed – whether the issues it seeks to raise are debatable among jurists of reason.

Under the dissent’s position, a full-blown appeal with regular briefing and a

decision on the merits by a three-judge panel would have to occur every time there

is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And

28

prisoners will almost always elect to appeal given all the free time on their hands.

See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir. 2000) (en banc). The dissent

would have the courts of appeal entertain and decide each of those appeals no

matter how clearly non-meritorious it appeared from the outset, and no matter

whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the

petitioner had filed. Congress could not have intended that.

For all of these reasons, we conclude that the certificate of appealability

requirement applies not only to all final judgments denying § 2254 or § 2255 relief,

but also to all final judgments denying Rule 60(b) relief from those earlier final

judgments.5

III.

The next question up is whether certificates of appealability should be issued

in the three cases before us. Congress has provided that a certificate of

appealability may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has

explained that this means the petitioner must show “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

5

In Part IV of its opinion the dissent recasts our conclusions and the rules we announce.

We reject that recasting, and we remind the reader that in any decision of this Court the law of

the circuit is contained in the majority opinion, not in the dissenting opinion’s description of it.

29

different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.

Ct. 1595, 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103

S. Ct. 3383, 3394 n.4 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36,

123 S. Ct. 1029, 1039 (2003).

The certificate of appealability requirement is to be administered at the

threshold of the appeal, and deciding whether to issue one neither requires nor

permits full consideration of the factual and legal merits of the claims, Miller-El at

336, 123 S. Ct. at 1039, because “[t]he question is the debatability of the underlying

constitutional claim, not the resolution of that debate,” id. at 342, 123 S. Ct. at

1042. That means a petitioner is not required to demonstrate entitlement to

appellate relief in order to be given an opportunity to pursue it. Still, the certificate

of appealability requirement is not a toothless one, and it should be applied with its

purpose in mind, which is to separate out those appeals that deserve more careful

attention from that do not. More than the absence of frivolity or the presence of

good faith is required for a petitioner to clear this hurdle. Id. at 335-38, 123 S. Ct.

at 1039-40.

Of particular relevance to the three cases we have before us, each of which

involves Rule 60(b) procedural issues in addition to merits issues, is the Slack

30

decision. In that case the district court had denied the habeas petition on procedural

grounds without reaching the underlying constitutional claim. Slack, 529 U.S. at

484, 120 S. Ct. at 1604. The Supreme Court held that in those circumstances a

certificate of appealability should issue only if the petitioner makes both a

substantial showing that he had a valid claim of the denial of a constitutional right,

and a substantial showing that the procedural ruling is wrong. Id. at 484, 120 S. Ct

at 1604. Those are the two components of the showing a petitioner in that situation

must make in order to be entitled to a certificate of appealability. If either of the

components is lacking, a court may deny the application for a certificate because of

the absence of that component without deciding whether the other one exists. Id. at

485, 120 S. Ct. at 1604 (“Each component of the § 2253(c) showing is part of a

threshold inquiry, and a court may find that it can dispose of the application in a fair

and prompt manner if it proceeds first to resolve the issue whose answer is more

apparent from the record and arguments.”).

A.

With these principles in mind we turn to the specific cases. The easiest case

in which to decide the certificate of appealability question is Lazo. The underlying

constitutional claim in that case asserts that the indictment charging Lazo with

conspiracy to possess with intent to distribute cocaine, and possession with intent to

31

distribute cocaine, was insufficient to give the district court subject matter

jurisdiction because of its failure to allege an effect on interstate or foreign

commerce, and its failure to provide Lazo with specific notice of the penalty he

faced. There is no basis at all for those claims. An examination of the indictment,

which is in the record before us, reveals that it is fully adequate in all respects.

Lazo’s contentions that the indictment is defective are not debatable among

reasonable jurists. Because he has failed to make a substantial showing of the

denial of a constitutional right, we deny him a certificate of appealability on that

basis. We do so without reaching the procedural component of the required

showing, which is whether any of the Rule 60(b) motion issues that his case gives

rise to are debatable among jurists of reason.

B.

Gonzalez’s claim is a different matter. He contends that his guilty plea was

unintelligent, unknowing, and involuntary based upon specific evidence he has

proffered. From the record before us, which does not contain a transcript of the

guilty plea proceeding (there is some indication no transcript exists), we cannot say

that Gonzalez’s claim is not debatable among jurists of reason. Therefore, his

appeal cannot be dispensed with at the certificate of appealability stage on the basis

of the constitutional claim component.

32

As for the procedural component, Gonzalez must show that it is debatable

among jurists of reason whether the intervening decision in Artuz v. Bennett, 531

U.S. 4, 121 S. Ct. 361 (2000), entitles him to Rule 60(b) relief from the prior

judgment denying habeas relief on statute of limitations grounds. Rule 60(b) relief

may not be available in these circumstances, but before we decide (a little later in

this opinion) what standards apply in the post-AEDPA era to Rule 60(b) motions in

habeas cases, we cannot say Gonzalez’s position on that procedural issue is not

debatable among jurists of reason. Accordingly, we will grant Gonzalez a

certificate of appealability and proceed to a full consideration of his appeal.

In keeping with the dictates of § 2253(c)(3), we specify the issues on which

the certificate is granted as being the last two for which we requested en banc

briefing in this case: What standards are applicable to Rule 60(b) motions in § 2254

cases, and in light of those standards was it an abuse of discretion for the district

court to deny the motion?

C.

As in Gonzalez’s case, so also in Mobley’s case. His constitutional claim

may lack merit, but we cannot say based upon the record before us that it is not

debatable among jurists of reason. The same is true of the procedural issues arising

from his case. Until we decide what standards apply to Rule 60(b) motions in

33

habeas cases, Mobley’s position that he is entitled to relief from the judgment

denying him habeas relief is debatable among jurists of reason. So he, too, gets a

certificate of appealability, and it is one specifying the same two issues we specified

for Gonzalez.

IV.

Having decided that the § 2253(c) certificate of appealability requirement

does apply to appeals from denials of Rule 60(b) relief in habeas cases, and that a

certificate of appealability ought to be issued in the Gonzalez and Mobley cases, we

turn now to the third issue for which we granted en banc review.6 What standards

govern Rule 60(b) motions aimed at judgments in habeas proceedings, that is, when

should those motions be granted?

A.

This question is critically important because of the consistent direction and

the substantial extent to which limitations on second or successive petitions have

evolved. The evolution has been toward greater finality of judgments through

6

We offer this explanation about the way we are proceeding. We realize, of course, that

our procedure for dealing with the cases we have before us does not follow the usual course in

these matters. Ordinarily, whether to grant a certificate of appealability in a case is decided first,

and if a certificate is granted full briefing on the issues specified in the certificate follows. In

this en banc case, we have collapsed the briefing on the certificate of appealability issues with

that about the proper scope of Rule 60(b) motions in § 2254 and § 2255 cases, because we

determined that this is the most efficient way to decide all of the issues. The parties were given

ample opportunity to fully brief and to argue all of the issues we decide here.

34

increasingly tight restrictions on second or successive petitions. We have gone

from the days of the more permissive ends of justice and abuse of the writ

standards, see, e.g., Sanders v. United States, 373 U.S. 1, 12, 83 S. Ct. 1068, 1075

(1963); to the post-McCleskey era with its less permissive cause and prejudice

standard, see, e.g., McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470

(1991); Sawyer v. Whitley, 505 U.S. 333, 338, 112 S. Ct. 2514, 2518 (1992); to the

present post-AEDPA times, with a total ban on claims that were presented in a prior

petition, § 2244 (b)(1), and a near-total ban on those that were not, see § 2244(b)(2).

The central purpose behind the AEDPA was to ensure greater finality of state

and federal court judgments in criminal cases, and to that end its provisions greatly

restrict the filing of second or successive petitions. The Supreme Court and this

Court have made these points many times before. See Miller-El v. Cockrell, 537

U.S. 322, 337, 123 S. Ct. 1029, 1039-40 (2003) (“Statutes such as AEDPA have

placed more, rather than fewer, restrictions on the power of federal courts to grant

writs of habeas corpus to state prisoners.”); Tyler v. Cain, 533 U.S. 656, 661, 121 S.

Ct. 2478, 2481-82 (2001) (“AEDPA greatly restricts the power of federal courts to

award relief to state prisoners who file second or successive habeas corpus

applications.”); Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 1490

(2000) (“AEDPA’s purpose [is] to further the principles of comity, finality, and

35

federalism”); Calderon v. Thompson, 523 U.S. 538, 558, 118 S. Ct. 1489, 1502

(1998) (“AEDPA’s central concern [is] that the merits of concluded criminal

proceedings not be revisited in the absence of a strong showing of actual

innocence.”); Johnson v. United States, 340 F.3d 1219, 1224 (11th Cir. 2003) (“It is

generally accepted that one of the principal functions of AEDPA was to ensure a

greater degree of finality for convictions.”); Jones v. United States, 304 F.3d 1035,

1039 (11th Cir. 2002) (“A fundamental purpose for the AEDPA was to establish

finality in post-conviction proceedings.”).

That central purpose of the AEDPA and its provisions specifically restricting

the filing of second or successive petitions severely limit the application of Rule

60(b) to habeas cases. Rule 11 of the Rules Governing § 2254 Cases provides that

the Federal Rules of Civil Procedure “may be applied, when appropriate” in habeas

proceedings, but only “to the extent that they are not inconsistent with these rules.”

Rule 11, 28 U.S.C. fol. § 2254. Given that the habeas rules trump the civil ones to

the extent of any inconsistency, it certainly follows that statutory provisions

governing habeas proceedings also trump general civil rule provisions that are

inconsistent, and that is especially true of subsequently enacted statutory provisions

such as those in the AEDPA. The civil rules themselves explicitly recognize as

much by providing that they are applicable to habeas corpus proceedings only “to

36

the extent that the practice in such proceedings is not set forth in statutes of the

United States” or in the habeas rules. Fed. R. Civ. P. 81(a)(2).7

There’s a different way of explaining the same point. Congress allowed Rule

60(b) to be created through the Rules Enabling Act process, see generally, 28

U.S.C. §§ 2071-2077, by not exercising its legislative authority to veto or modify

that rule, see § 2074. Congress can supercede Rule 60(b) or any other rule

promulgated through the rules process by actively asserting its legislative authority

to enact provisions that govern procedure. The AEDPA with its restrictions on the

filing of second or successive petitions, see 28 U.S.C. § 2244(b), is an example of

Congress doing that to some extent.

Regardless of how one explains it, if the earlier adopted rule is inconsistent

with the later enacted statutory provision, the rule yields to the statute to the extent

of the inconsistency. And unless its operation is throttled back in habeas cases,

Rule 60(b) is inconsistent with § 2244(b). Applying Rule 60(b) full throttle to final

judgments in habeas cases would essentially repeal the later-enacted AEDPA

7

The habeas rules, too, will soon explicitly recognize the obvious point that the civil

rules do not apply to habeas proceedings to the extent that they are inconsistent with any

statutory provision. The Judicial Conference has approved and recommended to the Supreme

Court a revision of the habeas rules, which includes the following restyled Rule 12: “The Federal

Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are

not inconsistent with any statutory provision or these rules, may be applied to a proceeding

under these rules.” Proposed Amendments to Proceedings under 28 U.S.C. § 2255 (emphasis

added). The accompanying committee note states that the change is intended to be stylistic only

and that no substantive change is being made. Id.

37

provisions restricting second or successive petitions. The rule’s provisions are

broadly worded and permit judgments to be reopened “upon such terms as are just”

for any number of reasons, including to correct a mistake, to undo the result of

inadvertence, or to remedy excusable neglect, Fed. R. Civ. P. 60(b)(1); or because

of newly discovered evidence, Fed. R. Civ. P. 60(b)(2); or for “any other reason

justifying relief from the operation of the judgment,” Fed. R. Civ. P. 60(b)(6).8 The

latitude that the rule gives courts to reopen final judgments is frequently described

as a “broad discretion.” See, e.g., Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d

805, 807 (8th Cir. 2002) (“We will reverse a district court’s ruling on a Rule 60(b)

motion only if there was a clear abuse of the court’s broad discretion.”); Marquip,

Inc. v. Fosber America, Inc., 198 F.3d 1363, 1369 (Fed. Cir. 1999) (“[T]his court

detects no abuse of the district court’s broad discretion to apply Rule 60(b).”);

8

Rule 60(b) provides that the court may relieve a party 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 . . . misrepresentation, or other

misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the judgment should have

prospective application; or (6) any other reason justifying relief from the operation of the

judgment.

The motion must 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.” Fed. R. Civ.

P. 60(b).

38

Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir. 1995) (“We note at the outset that district

courts enjoy broad discretion in deciding motions brought under Rule 60(b).”); Lee

v. Village of River Forrest, 936 F.2d 976, 979 (7th Cir. 1991) (“A trial judge has

broad discretion to grant Rule 60(b) relief from judgment.”).

Most of the provisions of Rule 60(b), which vest courts with broad discretion

to reopen judgments on a wide variety of grounds, are inconsistent and

irreconcilable with the AEDPA’s purpose, which is to “greatly restrict[] the power

of federal courts to award relief to state prisoners who file second or successive

habeas corpus applications,” Tyler v.Cain, 533 U.S. at 661, 121 S. Ct. at 2481-82,

and with its “central concern that the merits of concluded criminal proceedings not

be revisited in the absence of a strong showing of actual innocence,” Calderon, 523

U.S. at 558, 118 S. Ct. at 1502. Consider, for example, Rule 60(b)(2), which

permits the reopening of a final judgment based upon newly discovered evidence.

If that rule were applied in habeas cases it would effectively erase from the books

the more recent and more specific statutory requirement that final judgments

denying habeas relief not be reopened or set aside because of newly discovered

evidence, unless “the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense,”

39

§ 2244(b)(2)(B)(ii). And Rule 60(b)(1), which permits a court to reopen a final

judgment to undo a litigation loss that resulted from “mistake, inadvertence,

surprise, or excusable neglect,” would have the same vitiating effect.

No part of the rule, if it were applied to habeas cases, could do more harm to

the finality of judgments and the interests protected by the AEDPA than Rule

60(b)(6) which permits reopening a final judgment for “any other reason justifying

relief from the operation of the judgment.” As Judge Tjoflat has explained,

limiting the operation of Rule 60(b)(6) in habeas cases is critically important,

because “[a] district court that uses this ‘catch-all’ provision to allow a habeas

corpus petitioner to obtain review of a new constitutional claim will . . . eviscerate

the provisions of AEDPA.” Mobley, 306 F.3d at 1101 n.3 (Tjoflat, J., dissenting).

The discretion to reopen final judgments contemplated in most of the

provisions of Rule 60(b) cannot co-exist in a habeas case with § 2244(b). That

statutory provision, whose second or successive petition restrictions are “grounded

in respect for the finality of criminal judgments,” Calderon, 523 U.S. at 558, 118 S.

Ct. at 1502, explicitly forbids setting aside final judgments denying habeas relief

except in rare circumstances that fit within the two narrow exceptions contained in

that statutory provision. The severe restrictions on revisiting final judgments that

40

are contained in § 2244(b) are virtually the antithesis of the broad discretion that

Rule 60(b) generally gives district courts to reopen them.

We reject, because Congress in enacting the AEDPA has rejected, any notion

that habeas proceedings are just another category of civil cases for purposes of Rule

60(b). Or, to put it in terms of the Federal Rules of Civil Procedure themselves, we

conclude that insofar as reopening final judgments in habeas cases is concerned,

“the practice in such proceedings is [] set forth in statutes of the United States,” see

Fed. R. Civ. P. 81(a)(2), and specifically in § 2244(b).

That means Rule 60(b) cannot and does not apply in habeas cases the way it

does in ordinary civil cases, but it does not necessarily mean that no aspect of the

rule has any relevance to habeas cases. It may have some limited role to play in

habeas cases; that is, there may be some aspect of Rule 60(b) that is not inconsistent

with the AEDPA. For guidance about what limited role Rule 60(b) might play in

habeas cases we look to the Supreme Court’s Calderon decision, which involves the

closest analogy (the recall of appellate mandates in habeas cases) we can find and

provides some compelling reasoning.

B.

The Calderon case had a lengthy procedural history, but the relevant part of it

for our purposes began after a panel of the Ninth Circuit reversed a district court’s

41

grant of habeas relief as to the rape-murder conviction and death sentence of the

petitioner, Thomas Thompson. The district court had granted that relief after

concluding that Thompson had suffered from ineffective assistance of counsel, but

the panel disagreed. See Calderon, 523 U.S. at 544-46, 118 S. Ct. at 1495-96.

After rehearing en banc was denied, the appellate mandate directing the district

court to deny all relief was issued. Id. at 546, 118 S. Ct at 1496.

Thompson then brought forward new evidence that there had been no rape;

he had found a witness who would testify to having seen the victim engaged in what

appeared to be consensual sex with Thompson on the night she was murdered.

Thompson filed in the court of appeals a motion to recall the mandate, and the next

day he filed in the district court a Rule 60(b) motion to set aside the judgment

denying him habeas relief that had been entered in obedience to the appellate

court’s mandate. Both motions were based on the new evidence that there had been

no rape because the sex had been consensual. Id.

In denying Thompson’s Rule 60(b) motion, the district court construed it to

be a successive petition under § 2244, and explained that “Thompson ‘must not be

permitted to utilize a Rule 60(b) motion to make an end-run around the [statutory]

requirements’” of the AEDPA governing second or successive petitions. Id. at 547,

118 S. Ct. at 1496. Even with his new witness, in view of the other evidence

42

against him, Thompson could not show that he was actually innocent so that his

execution would be a miscarriage of justice. Id. at 547, 118 S. Ct. at 1496-97.

The Ninth Circuit panel denied Thompson’s motion to recall the appellate

mandate, but two days before he was scheduled to be executed the en banc court

voted to recall the mandate, which had been issued 53 days earlier. Id. at 547-48,

118 S. Ct at 1497. The en banc court did so not on the basis of the new evidence

asserted in Thompson’s motion to recall, but instead acted sua sponte based solely

on the claims and evidence that had been presented in his first habeas petition, the

one that had led the district court to grant relief originally only to be reversed by the

panel. The en banc court gave two reasons for recalling the mandate.

One reason was that rehearing en banc would have been granted before the

mandate issued but for procedural misunderstandings and mistakes within the court

itself. The other reason was that the panel’s decision reversing the grant of habeas

relief “would lead to a miscarriage of justice.” Id. at 548, 118 S. Ct. at 1497. The

miscarriage of justice the en banc court perceived was that the panel decision was

wrong. It held that Thompson had been denied effective assistance of counsel and

directed the district court to issue the writ on that ground. In doing so, the en banc

court made no effort to determine if Thompson was actually innocent of the crime.

Id. at 548-49, 118 S. Ct. at 1497.

43

The Supreme Court reversed the en banc Ninth Circuit’s decision. In doing

so, the Court acknowledged that generally the power of a court of appeals to recall

its mandate is inherent and unquestioned. Id. at 549-50, 118 S. Ct. at 1498. Habeas

cases, however, are different, and that difference matters when it comes to

reopening final judgments. The Calderon opinion explains that because of “the

profound societal costs that attend the exercise of habeas jurisdiction,” the Court

had “found it necessary to impose significant limits on the discretion of federal

courts to grant habeas relief.” Id. at 554-55, 118 S. Ct. at 1500. Among the

examples given in the opinion are the limitations the Court had imposed on the

ability of lower courts to consider second petitions, to consider procedurally

defaulted claims, and to consider claims that are based upon new decisional law. Id.

Underlying those limitations imposed by its decisions is what the Supreme

Court characterized as “our enduring respect for the State’s interest in the finality of

convictions that have survived direct review within the state court system.” Id. at

555, 118 S. Ct. at 1500 (citations and marks omitted). Finality of judgment is of

critical importance to our criminal justice system, the Court explained, because

finality is “essential to both the retributive and the deterrent functions of criminal

law,” it “enhances the quality of judging,” and it “serves as well to preserve the

federal balance.” Id. at 555, 118 S. Ct. at 1501.

44

The interest in finality of judgment, which is of considerable importance

when state review of a conviction and sentence has been completed, becomes truly

compelling, in the Supreme Court’s view, after a federal court of appeals has issued

a mandate denying habeas relief. At that point, the State is entitled not simply to an

assurance of finality but, to use terms from the Calderon opinion, to “real finality”

or “actual finality.” Id. at 556-57, 118 S. Ct. at 1501-02. Because mandate recalls

threaten that entitlement and the critical interests that underlie it, their field of

permissible use is severely restricted in habeas cases.

Or, as the Supreme Court said, when judging the propriety of any exercise of

the power to recall a mandate, “we measure it not only against standards of general

application, but also against the statutory and jurisprudential limits applicable in

habeas corpus cases.” Id. at 553, 118 S. Ct. at 1499. Of course, the most relevant

statutory limits are those in § 2244(b) which stringently restrict consideration of

second or successive petitions. Because what the Court said about the application

of those provisions to mandate recall motions bears so directly on Rule 60(b)

motions in habeas cases, it is worth a block quote:

In a § 2254 case, a prisoner’s motion to recall the mandate on the basis

of the merits of the underlying decision can be regarded as a second or

successive application for purposes of § 2244(b). Otherwise, petitioners

could evade the bar against relitigation of claims presented in a prior

application, § 2244(b)(1), or the bar against litigation of claims not presented

in a prior application, § 2244(b)(2). If the court grants such a motion, its

45

action is subject to AEDPA irrespective of whether the motion is based on

old claims (in which case § 2244(b)(1) would apply) or new ones (in which

case § 2244(b)(2) would apply).

Id. at 553, 118 S. Ct. at 1500. That would have been the end of the case, if the

mandate recall in Calderon had come as a result of the petitioner’s motion. See id.

at 562, 118 S. Ct. at 1504 (“Had [the en banc court] considered the additional

evidence or claims presented in Thompson’s motion to recall the mandate, of

course, its decision would have been subject to § 2244(b).”).

More analysis was required in that case, however, because of a procedural

wrinkle: The en banc Ninth Circuit had insisted that it did not recall the mandate

based upon anything contained in Thompson’s motion, but instead coincidentally

recalled its mandate sua sponte based solely upon the claims contained in the

original habeas petition and the evidence that had been presented in support of that

petition. Id. at 548, 554, 118 S. Ct. at 1497, 1500. This procedural wrinkle

potentially mattered because the text of § 2244(b) covers only court action pursuant

to a petitioner’s application. See id. at 554, 118 S. Ct. at 1500; see also §

2244(b)(1) (“A claim presented in a second or successive habeas corpus application

. . . .”); § 2244(b)(2) (“A claim presented in a second or successive habeas corpus

application . . . .”).

46

Because the recall of the mandate had not been based upon Thompson’s

motion and the en banc court had not considered anything contained in that motion

in making its decision, the Supreme Court acknowledged that the terms of §

2244(b) did not govern the peculiar circumstances of that specific mandate recall.

Id. at 554, 118 S. Ct. at 1500. It made little difference that § 2244(b) technically

did not apply, however, because the Supreme Court held that even where a post-

judgment situation does not fit within the actual terms of the AEDPA, a court “must

exercise its discretion in a manner consistent with the objects of the statute,” and

“the court must be guided by the general principles underlying our habeas corpus

jurisprudence.” Id. Guided by those principles and with an eye on the objects of

the AEDPA, the Court concluded that even though sua sponte mandate recalls are

not within the literal terms of the statute, none should be granted unless necessary to

prevent a miscarriage of justice, as that term is defined in the pre-AEDPA habeas

corpus jurisprudence. Id. at 557-58, 118 S. Ct. at 1502.9

9

The Supreme Court drew the actual innocence standard it announced for sua sponte

mandate recalls from its decision in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), instead

of using the one contained in § 2244(b)(2)(B). See Calderon, 523 U.S. at 559-60, 118 S. Ct. at

1502-03. There are some differences between the two standards. For example, under the Schlup

formulation when the constitutionality of the conviction is at issue because of new evidence, the

standard is whether “it is more likely than not that no reasonable juror would have convicted him

in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S. Ct. at 867, quoted in

Calderon, 523 U.S. at 559, 118 S. Ct. at 1503. By contrast, under § 2244(b)(2)(B) the standard is

whether it has been established “by clear and convincing evidence that, but for constitutional

error, no reasonable factfinder would have found the petitioner guilty of the underlying offense.”

47

The miscarriage of justice standard is appropriate in that situation, the Court

reasoned, because it “comports with the values and purposes underlying AEDPA,”

even though the AEDPA provisions did not literally apply in that case because the

en banc court action had not been based upon the petitioner’s motion. Id. at 558,

118 S. Ct. at 1502. The miscarriage of justice standard was recognized by the Court

to be “altogether consistent . . . with AEDPA’s central concern that the merits of

concluded criminal proceedings not be revisited in the absence of a strong showing

of actual innocence.” Id. Actual factual innocence is required; legal innocence is

not enough. It is a narrow and well-defined exception that will rarely be found to

exist. Id. at 559, 118 S. Ct. at 1502-03.

C.

The lessons about reopening a final habeas judgment that we draw from the

Calderon decision and opinion are that Rule 60(b) relief should not be granted from

a judgment denying habeas relief unless a demanding standard is met, and which of

two demanding standards applies depends on whether the recall results from a

motion made by the petitioner or is done on the court’s own initiative. If the recall

is based on a motion by the petitioner, that motion is the functional equivalent of a

second or successive petition and the terms of the AEDPA’s § 2244(b) apply

regardless of the label put on it. If, on the other hand, a court of appeals is

48

considering recalling the mandate on its own motion the literal terms of § 2244(b)

do not apply, but the mandate cannot be recalled unless necessary to prevent a

miscarriage of justice; that means the petitioner must be factually innocent of the

crime, or of the sentence, as defined in the pre-AEDPA federal habeas

jurisprudence, see n.9, above.

The Supreme Court in Calderon indicated that only two exceptions apply to

the rule that the final judgment in a habeas case may not be reopened by a recall of

the mandate unless the demanding standard that applies is met. One exception is

that the mandate may be recalled to correct a mere clerical error in the judgment. Id.

at 557, 118 S. Ct. at 1501. The other exception is that the mandate may be recalled

where there was “fraud upon the court, calling into question the very legitimacy of

the judgment.” See id. at 557, 118 S. Ct. at 1501-02. Neither situation was present

in the Calderon case, nor did the petitioner meet the demanding standard (actual

innocence) that applied there. As a result, the judgment of the Ninth Circuit en

banc court recalling the mandate and affirming the grant of federal habeas relief to

Thompson was reversed. Id. at 566, 118 S. Ct. at 1506.

D.

Calderon’s lessons about whether and when an appellate court’s power to

recall a mandate may be used in habeas cases apply with as much force to the

49

question of whether and when a trial court’s Rule 60(b) authority to reopen a final

judgment may be used in a habeas case. Recalling the mandate to reopen and alter

the final judgment in a habeas case is the closest thing on the appellate level to the

use of Rule 60(b) to reopen and change a final judgment at the trial level. The

unfettered application of either procedure to reopen final judgments in habeas cases

would undermine important principles and values protected by the restrictions

contained in habeas decisional law and the AEDPA.

The Supreme Court emphasized in Calderon “our enduring respect” for a

state’s interest in the finality of a judgment that has survived review within the state

system, and it stressed that finality of judgments is essential to the proper

functioning of the criminal justice system and to preservation of the federal balance.

Calderon, 523 at 555-56, 118 S. Ct. at 1500-01. Our enduring respect for the

interests behind finality of criminal judgments, and our understanding that finality

is essential to criminal justice and to our federal system, does not vary depending on

whether the threat to finality comes from a motion to recall the mandate or from a

Rule 60(b) motion. When a federal appellate court has issued a mandate denying

habeas relief, the state’s interests in finality of a judgment of its courts are no less

“compelling,” id. at 556, 118 S. Ct. at 1501, and its entitlement to “real finality” and

“actual finality” is not diminished simply because the petitioner’s attempt to reopen

50

the judgment is wrapped in Rule 60(b) packaging instead of mandate recall paper.

The interests threatened and the importance of those interests are the same

regardless of whether the attack comes at the district court or appellate level. A

reopened judgment is a reopened judgment.

Two differences between Rule 60(b) relief and mandate recalls come to mind,

but neither weighs in favor of permitting the former to undermine finality of

criminal judgments any more than the latter. One difference is that the procedure

for obtaining relief from a judgment at the district court level is set out in Rule

60(b), while there is no comparable Federal Rule of Appellate Procedure that sets

out the procedure for recalling a mandate once it has issued, see generally Fed. R.

App. P. 41(governing mandates). Rule 60(b), however, provides only the

procedural framework, while the substantive law governing relief from judgments

at the trial level is supplied by decisional law, see Fed. R. Civ. P. 60(b) advisory

committee’s note (“It should be noted that Rule 60(b) does not assume to define the

substantive law as to the grounds for vacating judgments, but merely prescribes the

practice in proceedings to obtain relief.”), just as the substantive law applicable to

mandate recalls is to be found in court decisions, see Calderon, 523 U.S. at 549-50,

118 S. Ct. at 1498 (“the courts of appeals are recognized to have an inherent power

to recall their mandates, subject to review for an abuse of discretion”). So, there is

51

no real difference in that respect. And in any event, Rule 60(b) is itself subject to

the limitation of Rule 81(a)(2), which provides that the rule does not apply to

habeas corpus proceedings to the extent that the practice in them is set forth in

statutes, and the AEDPA is such a statute.

The other difference between Rule 60(b) relief and mandate recalls is that an

appellate court generally has less discretion to reopen judgments by recalling its

mandate than a district court has to reopen them under Rule 60(b). Compare

Calderon, 523 U.S. at 549-50, 118 S. Ct. at 1498 (power to recall mandate to be

exercised only in extraordinary circumstances) with Bennett, 295 F.3d at 807

(describing a district court’s authority to grant Rule 60(b) motions as one involving

“broad discretion”); Marquip, Inc., 198 F.3d at 1369 (“the district court’s broad

discretion to apply Rule 60(b)”); Hoult, 57 F.3d at 3 (“district courts enjoy broad

discretion in deciding motions brought under Rule 60(b)”); Lee, 936 F.2d at 979

(“A trial judge has broad discretion to grant Rule 60(b) relief from judgment.”).

However, that difference shows there is even more need to restrict the use of Rule

60(b) in habeas cases, because the broader the discretion to upset final judgments,

the greater the threat to the finality interests that drove the Supreme Court’s

decision in Calderon. Everything the Supreme Court said about why mandate

recalls must be given a more restricted role in habeas cases than in other cases

52

applies in at least equal, and perhaps greater, measure to reopening judgments under

Rule 60(b).

For all of these reasons, a Rule 60(b) motion at the trial level is the

equivalent, for all present intents and purposes, of a motion to recall the mandate at

the appellate level. See Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1999)

(“Appellate courts agree that a post-judgment motion under Fed. R. Civ. P. 60(b) in

the district court, or the equivalent motion in the court of appeals – which is to say,

a motion to recall the mandate – is a ‘second or successive’ application for purposes

of § 2244(b).”). That is why it is no surprise that the two often travel together. In

Calderon one day the petitioner filed in the appellate court a motion to recall the

mandate, and the next day he filed in the district court a Rule 60(b) motion

containing the same grounds and allegations. Calderon, 523 U.S. at 546, 118 S. Ct.

at 1496. In the Mobley case that we have before us now, the petitioner filed in this

Court his motion to recall the mandate on the same day he applied to us for a

certificate of appealability to appeal the district court’s denial of his Rule 60(b)

motion, and both of those attacks on the final judgment denying him habeas relief

were based on the same ground and allegations. Mobley, 306 F.3d at 1099-1100.

To a petitioner it does not matter whether he gets the final judgment against

him reopened through a mandate recall or through a Rule 60(b) motion. To the

53

State it does not matter, because the injury to its interests is the same regardless of

which procedural weapon is used to inflict the wound. To us it should not matter

which procedure is used, either; in habeas cases both should be governed by the

same principles and be subject to the same restrictions.

We conclude that those principles which were discussed, and those

restrictions which were set out, by the Supreme Court in Calderon apply to attempts

to reopen final judgments under Rule 60(b). That means in a § 2254 case a

petitioner’s Rule 60(b) motion to reopen the judgment “can be regarded as a second

or successive application for purposes of § 2244(b),” and should be so regarded

because “[o]therwise, petitioners could evade the bar against relitigation of claims

presented in a prior application, or the bar against litigation of claims not presented

in a prior application.” Calderon, 523 U.S. at 553, 118 S. Ct. at 1500 (citations

omitted). Because a petitioner’s attempt to reopen a final habeas judgment pursuant

to Rule 60(b) is to be treated as an application to file a second or successive

petition, it ordinarily should be dismissed by the district court pursuant to

§ 2244(b)(4).10

10

In Castro v. United States,___ U.S. ___, 124 S. Ct. 786 (2003), the Supreme Court held

that when faced with a motion by a pro se federal prisoner that is not labeled as a § 2255 motion,

a district court cannot without more recharacterize the motion as one under § 2255. The court

must inform the prisoner that the recharacterization being contemplated will subject his

subsequent filings to the restrictions on second or successive filings, and it must provide him

with an opportunity to amend or withdraw the initial filing. If the court does not do that, the

recharacterized filing cannot be counted as a § 2255 motion for purposes of applying the

54

Of course, if the grounds of relief stated in the Rule 60(b) motion satisfy the

stringent requirements of § 2244(b)(1) & (2), the petitioner should put those

grounds in a habeas petition and move under § 2244(b)(3)(A) for an order from the

court of appeals authorizing the district court to consider it. The point of the rule

we announce today is that the petitioner may not get around the statutory

restrictions on second or successive petitions by filing a Rule 60(b) motion, unless

the grounds of the motion fit within one of the two exceptions we are about to

discuss. 11

E.

Because the Calderon reasoning does apply to Rule 60 motions as well as

mandate recalls in habeas cases, the two extra-statutory exceptions discussed in that

restrictions against second or successive motions. Id. at ___, 124 S. Ct. at 792.

That is not what we have here. None of the prisoners before us had his initial filing

recharacterized by the district court. All their initial pleadings were filed under § 2254 or §

2255, were labeled as such by the prisoner, and were treated by the court accordingly. The

Castro decision does not extend beyond initial filings, and nothing the Supreme Court said or did

in that case implies that the § 2244(b) restrictions can be evaded by the simple expedient of

labeling second or successive filings to be something they are not.

11

Nor may a petitioner circumvent the restrictions on second or successive petitions by

the simple expedient of filing an independent action aimed at the judgment denying habeas

relief. See generally Fed. R. Civ. P. 60(b) (3d sentence). All of the reasoning and all of the

principles we have been discussing apply fully to any independent action designed to set aside or

reopen a judgment denying federal habeas relief. Accordingly, such independent actions are

subject to the § 2253(c) requirement that a certificate of appealability be obtained before the

denial of one may be appealed, and relief from a judgment denying a habeas petition may not be

granted in an independent action except in the two circumstances we are about to discuss in

which relief may be granted on a Rule 60(b) motion.

55

decision also apply. This means that there are two different circumstances or

exceptions in which a petitioner will be permitted to file a Rule 60 motion and have

it treated by the district court as a motion under that rule instead of as a non-

authorized (by the appellate court pursuant to § 2244(b)(3)(A)) application to file a

second or successive petition.

One circumstance is where the final judgment is recalled or reopened to

correct clerical errors in the judgment itself. As the Supreme Court explained,

“[t]he State can have little interest, based on reliance or other grounds, in preserving

a mandate not in accordance with the actual decision rendered by the court.” Id. at

557, 118 S. Ct. at 1501. The same is true, of course, when a judgment is reopened

under Rule 60(a) to correct a mere clerical mistake. So, there is that exception.

The other circumstance in which a petitioner will be able to file a Rule 60

motion and have it treated by the district court as a motion under that rule instead of

as a non-authorized second or successive petition is where there was fraud upon the

federal court which led to the denial of the habeas petition. In its Calderon opinion,

the Supreme Court said: “This also is not a case of fraud upon the court, calling

into question the very legitimacy of the judgment. See Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997 (1944).” Calderon, 523 U.S. at

557, 118 S. Ct. at 1501-02. It is unclear whether with those words (contained in a

56

paragraph which begins “We should be clear about the circumstances we address in

this case . . . .”) the Court meant to recognize a fraud exception or simply to reserve

for later the question of whether that exception exists. Since we have before us one

petitioner who contends that he is entitled to the benefit of a fraud exception, we

cannot put off until another day the decision of whether one exists. We think it

does.

A State’s interest in the finality of a judgment denying federal habeas corpus

relief is not compelling if that judgment would not have been obtained but for fraud

that its agents perpetrated upon the federal court. Rule 60(b)(3) permits a judgment

to be reopened for fraud, and the savings clause of the rule specifies that it does not

“limit the power of a court . . . to set aside a judgment for fraud upon the court.” To

that extent, Rule 60(b) has a field of operation in habeas cases. The exact

parameters of the fraud exception may have to be worked out on a case-by-case

basis, but the Supreme Court’s citation to the Hazel-Atlas decision in its Calderon

opinion, 523 U.S. at 557, 118 S. Ct. at 1501-02, is instructive. (The Hazel-Atlas

decision is cited by the commentary to Rule 60(b) as an illustration of a situation

involving a fraud perpetrated upon a court. See Fed. R. Civ. P. 60(b) advisory

committee’s note.)

57

In the Hazel-Atlas case the Hartford Company had been unsuccessful in its

efforts to obtain a patent for a particular way of pouring glass into molds, called the

“gob feeding” method. Its application faced “apparently insurmountable Patent

Office opposition.” Hazel-Atlas, 322 U.S. at 240, 64 S. Ct. at 998. To overcome

that opposition, a lawyer for the company, with his client’s knowledge and

assistance, drafted an article for publication in a trade journal that described the gob

feeding method as “a remarkable advance in the art of fashioning glass by

machine,” and “one of the two ‘revolutionary devices’ with which workmen skilled

in bottle-blowing had been confronted since they had organized.” Id. at 240-41, 64

S. Ct. at 998-99. The fraud in the fraudulent scheme was passing off the overblown

advocacy penned by Hartford’s attorney as a fact-based testimonial independently

written by a disinterested expert in the field. That was accomplished by having the

head of a national union of glass blowers sign the article as its purported author

even though he had nothing to do with writing it. Id.

The phony article was published, and it had the intended effect. After the

article was pointed out to the Patent Office, it issued Hartford a patent for the

process. Hartford then filed a patent infringement suit against Hazel-Atlas, which

was using that method to produce glass. Hartford did not emphasize the bogus

article to the district court, and that court ruled against it. Id. at 241, 64 S. Ct. at

58

999. In the court of appeals the attorneys for Hartford, one of whom had been

involved in the spurious article scheme, directed the court’s attention to the article,

and as the Supreme Court put it, “[t]he reference was not without effect.” Id. In

reversing the district court and directing that judgment be entered in favor of

Hartford, the court of appeals quoted copiously from the article to support its

holdings that the district court had erred, that the patent was valid, and that there

had been infringement. Id.

Despite Hartford’s payment of hush money to the national union leader who

had signed the phony article, the fraud was ultimately discovered years after the

judgment that it had been used to procure had become final (finality of judgment

being defined by the term rule, in those days). The court of appeals refused to set

aside its judgment in favor of Hartford, but the Supreme Court reversed. After

recounting “this sordid story,” Id. at 243, 64 S. Ct. at 1000, the Court held that the

term rule was no bar to correcting the effect of the fraud, that Hazel-Atlas’ delay in

uncovering the fraud was not a bar, and that the effectiveness of the fraudulent

article for Hartford’s case in the court of appeals could not be disputed. Id. at 244-

47, 64 S. Ct. at 1000-02.

The Supreme Court explained in Hazel-Atlas that, “[t]his is not simply a case

of a judgment obtained with the aid of a witness who, on the basis of after-

59

discovered evidence, is believed possibly to have been guilty of perjury,” but

instead was “a deliberately planned and carefully executed scheme to defraud not

only the Patent Office but the Circuit Court of Appeals.” Id. at 245-46, 64 S. Ct. at

1001. The court of appeals decision was reversed with directions for it to recall the

original mandate it had issued years before, to issue a new mandate directing the

district court to set aside the judgment in favor of Hartford, and to take any

additional action that was necessary and appropriate. Id. at 251, 64 S. Ct. at 1004.

That case is the example the Supreme Court gave in Calderon of the kind of

fraud which justifies upsetting the finality interests that arise when a State criminal

judgment has been left standing after a full round of federal habeas review.

Calderon, 523 U.S. at 557, 118 S. Ct. at 1501-02. With that and the other teachings

of the Calderon decision in mind, we will turn to the particular circumstances of the

two § 2254 cases before us, but before doing so we pause to consider the competing

approach the dissent would have us adopt.

The dissent’s functional inquiry, as we understand it, is adopted from the

First Circuit’s opinion in Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003), which

ignores the Supreme Court’s Calderon decision. Although the critically important

Calderon decision had been on the books for five years before the First Circuit

released its Rodwell opinion, that opinion does not even mention the Supreme

60

Court decision. Uninformed by Calderon, the First Circuit’s approach requires a

court to determine in every case where a Rule 60(b) is filed seeking to set aside a

habeas judgment whether the motion’s factual predicate “deals primarily with the

constitutionality of the underlying state [or federal] conviction or sentence,” or

“deals primarily with an irregularity or defect in the procurement of the judgment

denying habeas relief.” Dissenting Op. at 103 (quoting Rodwell, 324 F.3d at 70)

(alterations added by dissent). What exactly “deals primarily” means as it applies to

the myriad of factual predicates arising in these type of cases would, of course, be

subject to continuous debate and litigation. As a result, the states would be denied

the “real finality” or “actual finality” of judgment the Supreme Court says they are

entitled to have. Calderon, 523 U.S. at 556-57, 118 S. Ct. at 1501-02.12

12

The fuzziness of the test the dissent would have us adopt is illustrated by the

inconsistent way the dissent apparently would apply it in two materially identical circumstances.

The dissent discusses our pre-AEDPA decision of Lindsey v. Thigpen, 875 F.2d 1509, 1512

(11th Cir. 1989), without concluding that decision was wrong to apply the certificate

requirement to an appeal by a petitioner who had unsuccessfully sought Rule 60(b)(6) relief

from the district court on two grounds. One of those grounds was that the controlling law

applicable to a claim he had raised in his initial petition, which was denied, had been changed in

a decisive way by an intervening Supreme Court decision. See Dissenting Op. at 112. That

attempt by Lindsey to get a judgment denying habeas relief set aside because of a change in the

law is seen by the dissent as one of those “misuses of Rule 60(b).” Id. at 113. Yet, when it

comes to Gonzalez’s attempt to use the same rule to get a judgment denying habeas relief set

aside because of a change in controlling law, the dissent tells us that “Rule 60(b) is the perfect

vehicle for invoking the change-in-the-law exception to the mandate rule.” Id. at 129. Rule

60(b), we are assured, is “tailor made for this situation.” Id. Use of the rule is seen as non-

fitting and even abusive in a situation involving a change in the controlling law in one case,

while use of the same rule is seen as just perfect in another case involving a change in the

controlling law.

61

Nodding slightly to that inevitable consequence, the dissent drops a footnote

to assure us that it would emphasize to district courts that when applying Rule

60(b)(6) – only one of the six subdivisions of the broadly worded rule – they are to

exercise “special caution” in order to avoid eviscerating the provisions of § 2244.

See Dissenting Op. at 103 n.20. We are not assured.

Special caution is difficult to define and impossible to police in the fuzzy area

of debating whether the factual predicate of a motion “deals primarily” with the

constitutionality of the underlying judgment, or “deals primarily” with some

irregularity or defect in the previous judgment denying relief from that earlier

judgment. The same is true about “special caution” in determining how to exercise

the broad discretion that district courts are given to decide whether to set aside

judgments on such grounds as “mistake, inadvertence, surprise, or excusable

neglect,” Rule 60(b)(1), and because of “newly discovered evidence,” Rule

60(b)(2), as well as for “any other reason justifying relief from the operation of the

judgment,” Rule 60(b)(6).

In sum, the Supreme Court had good reasons for recognizing in Calderon that

the nature of habeas cases and the critical importance of the finality and comity

interests they affect require special rules for motions to recall the mandate in them,

and for insisting that lower courts abide by those rules. The same is true of the trial

62

level analog of a motion to recall the mandate in a habeas appeal, which is the Rule

60(b) motion to re-open a judgment denying habeas relief. Besides, Calderon is a

Supreme Court decision, so we must follow it regardless of whether we would have

arrived at a different approach. The dissent’s quarrel is really with the Supreme

Court’s Calderon decision.

V.

We now apply the lessons we have derived from Calderon, along with the

two exceptions that decision recognized, to the two habeas cases remaining before

us.

63

A.

Gonzalez does not contend that there was any clerical error in the final

judgment denying him federal habeas relief, or that fraud was used to obtain that

judgment. His sole contention is that the judgment was wrong, because the

subsequently released decision in Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361

(2000), shows that the “properly filed” language of § 2244(d)(2) was misinterpreted

to deny him relief. He is attacking the merits of that decision – the term “merits”

referring to the correctness of the decision itself even though the ground of this

particular decision was the statute of limitations, an affirmative defense.

Gonzalez’s Rule 60(b) motion is an attempt to relitigate a claim that has

already been presented in a prior application and rejected, which means it must be

dismissed under § 2244(b)(1). As the Supreme Court explained in Calderon,

“[o]therwise, petitioners could evade the bar against relitigation of claims presented

in a prior application.” Calderon, 523 U.S. at 553, 118 S. Ct. at 1500. An error of

law, even one demonstrated by an intervening decision, does not fit either of the

extra-statutory exceptions to the rule we have borrowed from Calderon and

announced today. If it were otherwise, a habeas petitioner could use Rule 60(b)(6)

to re-open a judgment denying habeas relief based upon a new decision implicating

the correctness of the denial of relief in his case, even if that decision came ten,

64

twenty, or thirty years after the judgment had been rendered, and even if it had not

been made retroactively applicable to his case.13 There would be no finality.

Because in Gonzalez’s case there is no clerical error and there is no allegation of

fraud affecting the prior habeas proceeding, the district court properly denied his

Rule 60(b) motion.

B.

Mobley contends that the fraud exception applies to permit his Rule 60(b)

motion to be decided under that rule without being subject to the § 2244(b) bar on

13

The only circumstance in which Congress permitted a final habeas judgment to be

reopened because of a new decision is where the petitioner asserts for the first time a claim that

“relies on a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” § 2244(b)(2)(A). Gonzalez’s claim fails to

meet the requirements of that exception to the bar against second or successive claims.

This case sharply illustrates the difference between how our approach treats the

restrictions contained in § 2244(b)(2) and how the dissent would treat them. Under our approach

§ 2244(b)(2)(A) still serves an important function. It serves to limit the circumstances in which

a judgment denying habeas relief can be re-opened based upon a new decision. If the stringent

requirements of that carefully drafted statutory provision are met, a new decision can be used to

re-open the judgment, but not otherwise.

By contrast, under the dissent’s position, § 2244 (b)(2)(A) would serve no purpose

whatsoever. Why would a prisoner seeking to benefit from a new decision ever seek to obtain

permission to file a second or successive petition by meeting the stringent requirements of that

statutory provision when he would have a much easier time of it filing a Rule 60(b)(6) motion?

Under the dissent’s position, relief is available under that rule even if the new decision (as in this

case) is not one of constitutional law, and even if the Supreme Court has not made that decision

retroactively applicable to cases on collateral review. The dissent says that “Rule 60(b) is the

perfect vehicle for invoking the intervening-change-in-the-law exception.” Dissenting Op. at

129. It is, only if one thinks that a statutory provision specially targeting and narrowing the

circumstances in which that exception should be invoked should be rendered perfectly

meaningless.

65

second and successive petitions. However, his effort to establish that the claim

contained in his motion fits within the fraud exception falls short. The claim is that

Andrew Fuller, who testified at the sentence stage as the former prosecutor in the

case, gave false testimony about the position of the victim’s family regarding the

sentence Mobley should receive for the murder. We begin by putting that

testimony in context.

At the sentence stage of the trial (actually the retrial), Mobley put in evidence

through the testimony of one of his attorneys that Mobley had offered to plead

guilty to any crime with any sentence, so long as the sentence was not death. How

that evidence is mitigating is not clear, but the theory may have been that the offer

reflected well on Mobley because it demonstrated a willingness to accept some

punishment for the cold-blooded murder he had committed.14 If that was the theory

it is a stretch, because Mobley’s plea efforts simply show a desire to save his own

skin, a willingness to deal in order to avoid the full penalty for his crime.

To Mobley’s evidence that he had offered to plead guilty, the State responded

with the testimony of former prosecutor Fuller, who explained to the jury why he

had rejected Mobley’s plea offer. The Georgia Supreme Court had indicated earlier

14

The defense’s mitigation theory was not that Mobley’s offer to plead showed any kind

of remorse. We know that, because the defense was adamant throughout the sentence hearing

that Mobley was a sociopath who could not feel remorse, and for that reason he should not be

faulted for acting in a remorseless way during and after the murder.

66

in the interlocutory appeal in the case that if Mobley’s plea offer came into

evidence, the reasons that Fuller rejected the offer could come in as well.

See Mobley v. State, 262 Ga. at 810-11, 426 S.E.2d at 152-53. Fuller’s testimony

was not for the purpose of establishing an aggravating circumstance, but instead

was for the purpose of weakening whatever small mitigating effect otherwise might

arise from evidence of Mobley’s attempt to escape a death sentence by plea

bargaining. The factual issue being explored was not whether the family of the

victim, John Collins, supported a death sentence for his murder, but why the district

attorney at that time had decided to seek one.

The transcript of the sentence stage shows Fuller did not testify that the

victim’s family was firm in wanting a death sentence, and he never told the jury that

the family’s feelings were a material consideration in his decision to seek death.

Instead, he testified that “without question” the decision about the punishment to

seek in a capital case “falls on the shoulders of the district attorney,” and while

district attorney he had made that decision. Although Fuller generally listened to

the victim’s family’s views about the penalty, their views were, in his words, only

“a small percentage factor on the scale of things.” He explained that: “I want them

to appreciate the fact that I make the decision. And families generally – and this

family did not want to make the decision, they don’t want to come to a meeting

67

after what they’ve been through . . . they don’t want to make the decision, and it’s

not their decision to make, anyway.” He added: “But, yeah, I listened to them and

I want to give every opportunity to everybody to have their input in a case because

it is – it’s a big decision.”

When asked point blank how big a factor the family’s position was in his

decision to seek a death sentence, Fuller answered that: “90, 95 percent of the

decision” was “based on the evidence I see that describes and defines the defendant

for me.” He testified he had concluded that the facts called for a sentence of death

in the case, and although the family supported his decision to seek it they had never

pressured him, and they had actually told him, “[i]t is your decision, we put our

trust in you.” During cross-examination, Mobley’s counsel asked: “The Collins

family, you alluded to this, they have never pushed you one way or the other in this

case, is that correct?” Fuller answered: “That is correct.” He was asked: “They

have always deferred to your judgment at the time as to what should be done,

correct?,” to which he answered: “Yes.”

In his testimony at the sentence stage, Fuller did not simply deny that the

views of the family were a significant factor in his decision to seek a death

sentence, he elaborated on the more important factors that had led him to his

decision. The case against Mobley for the robbery and murder of John Collins was

68

a strong one. The evidence included a confession and the recovery of the pistol

used in the killing, which Mobley had thrown out after the crime. The murder was

a merciless, cold-blooded, execution-style killing stemming from a well-planned

robbery of a Domino’s Pizza franchise. Mobley marched Collins to the back where

he forced him to get down on his knees, and while Collins was begging for his life

Mobley shot him in the back of the head at close range. From those facts alone, in

Fuller’s words, “it became glaringly apparent that this was a capital case and I

would proceed [with it] as a capital case.” But there was more, a lot more, that

cemented Fuller’s decision to insist on a death sentence.

Before the trial Fuller learned that Mobley had spoken to another inmate in a

disparaging way about how Collins, while kneeling, had begged for his life. Then

Fuller learned Mobley had said that he wanted to get out of jail, because “he knew

where he could get a job real quick, when he got out of jail, at Domino’s Pizza

because he knew there was a vacancy.” As if that were not enough, Fuller found

out that Mobley had gotten himself a jailhouse tattoo of the Domino’s Pizza

symbol. Fuller’s reaction: “I mean, I could not believe it, I could not believe it.”

Still, there was more. Mobley got into a confrontation with a deputy about

aspirin or some similar medication, and as Fuller related it to the jury: “Mr. Mobley

told the deputy that he was looking more and more like a Domino’s Pizza delivery

69

boy.” Fuller’s reaction: “Again, I would have to say I couldn’t believe it, you

know.” Finally, Fuller learned that Mobley, while he was awaiting trial, had

participated in the rape of another inmate.

In all of those statements and actions of Mobley, Fuller saw: “[P]ure

unadulterated meanness. It was nothing but pure unadulterated meanness in my

viewpoint.” Fuller was determined to seek the death penalty “for the protection of

the people of the State of Georgia.” When asked whether there was ever a point

from the beginning of the case throughout the prosecution when he ever gave

serious consideration or came close to not seeking the death penalty and to

accepting the plea offer, Fuller answered: “Never.” When asked if he had ever

questioned the decision he had made to seek the death penalty, Fuller answered:

“Never.”

The closing arguments at the sentence stage of Mobley’s trial show that no

one interpreted Fuller’s testimony to mean that the victim’s family had been strong

for a death sentence or that their feelings had affected Fuller’s decision to seek one.

The position of the victim’s family about the proper penalty in the case was never

even alluded to by the prosecution during its lengthy closing argument. It was,

however, brought up by the defense. During his closing argument defense counsel

reminded the jury that Fuller had testified that the family had not demanded the

70

death penalty but instead had left up to Fuller the decision about the penalty to seek.

Defense counsel argued that was a reason the jury should not impose a death

sentence.

Those are the facts. Here are Mobley’s allegations – and we stress that so far

they are only allegations, not supported by so much as a proffered affidavit. In his

Rule 60(b) motion, Mobley alleges that Fuller had told the victim’s family that life

without parole was not a sentencing option, and after using that misrepresentation to

secure their support for a death sentence Fuller testified before the sentencing jury

that the family did support his decision to seek death, knowing all along that the

family would not have supported it if they had known life without parole was an

option.

To the extent Mobley’s claim is that Fuller violated his constitutional rights

by defrauding the family into giving him its support for a death sentence, the claim

is without any legal basis. A defendant has no constitutional right to have the

prosecutor explain the law accurately to the victim’s family, and even if such a far-

fetched constitutional right were created it would not be available to a petitioner for

whom there is already a final judgment denying federal habeas relief.

To the extent Mobley’s claim is that Fuller’s testimony at the sentencing

stage about the family’s support defrauded the jury into returning a death sentence,

71

the claim is not about fraud on the federal courts. As Judge Tjoflat explained when

the case was before the panel, the fraud Mobley alleges was not committed when

the case was before the federal habeas court but earlier when it was before the state

courts. Mobley, 306 F.3d at 1106 (Tjoflat, J., dissenting) (“Read in the best

possible light, Mobley’s allegations imply that the State may have committed a

fraud upon the Georgia superior court by proffering Fuller’s allegedly false

testimony during Mobley’s sentencing.”).15 Fuller did not testify in the federal

habeas proceeding, and the claim Mobley wants to present at this late date was not

presented during that proceeding.16 The fraud exception to our rule that 60(b) relief

will not be granted to reopen final judgments denying federal habeas relief applies

where the fraud was perpetrated on the federal court and resulted in the denial of

federal habeas relief, not where the fraud was perpetrated on a state court. To the

extent Mobley is asserting that the alleged fraud on the state court violated some

federal constitutional right of his, he is simply putting forward a new federal

constitutional claim that was not presented in his earlier habeas petition. It is a

15

We agree with those statements from Judge Tjoflat’s dissenting opinion in Mobley that

we quote in this opinion, but beyond that we do not adopt his opinion in that case or its

approach.

16

Mobley did raise in his federal habeas petition a claim that Fuller had lied during his

state trial testimony but that was a different claim about a different part of Fuller’s testimony,

and that claim was held to be procedurally barred anyway, without any decision about its merits.

Mobley v. Head, 306 F.3d at 1106 n.10 (Tjoflat, J., dissenting).

72

classic successive petition claim subject to the § 2244(b)(2) restrictions, which this

claim does not meet. It is not a claim based upon a new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court, §

2244(b)(2)(A). Nor is it a claim based upon newly discovered evidence which,

when the evidence is considered as a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense, §

2244(b)(2)(B).

We do not mean to imply that the only defect in Mobley’s fraud theory

involves the court on which the alleged fraud was perpetrated. There can be no

fraud unless the falsehood is material, and here the alleged falsehood is immaterial.

After all, we are talking about one minor aspect of a former prosecutor’s

explanation about why he had rejected a conditional guilty plea offer of the

defendant. And the support of the victim’s family for a death sentence, even if it

was obtained by the prosecutor’s misrepresentation, counted for little in the

prosecutor’s decision making process, a process that he explained in great detail to

the jury.

The mitigating weight of a defendant’s attempt to avoid a death sentence by

offering to plead guilty is so slight, if it exists at all, that even undiminished the

73

effect would hardly register. And the only mention during closing arguments of the

allegedly false part of the former prosecutor’s testimony was by defense counsel

who cited that testimony as a reason for the jury not to impose a death sentence. It

is no wonder that the state trial court, when considering this fraud claim, concluded

that any misrepresentations or false testimony by Fuller along these lines was

immaterial to the death sentence the jury returned in this case. See Mobley, 306

F.3d at 1099.17

For all of these reasons, Mobley’s case does not come within shouting

distance of the fraud exception outlined in the Hazel-Atlas decision, where there

was “a deliberately planned and carefully executed scheme” participated in by

attorneys in a federal proceeding to defraud a federal court, 322 U.S. at 245-46, 64

S. Ct. at 1001, with carefully constructed bogus evidence which not only was

presented to that federal court but which also affected the federal court’s decision.

Id. at 241, 244-47, 64 S. Ct at 997, 1000-02. Mobley is not entitled to have the

17

We probably should add that the jury was presented with evidence that Mobley had

committed six other robberies in the three weeks between his murder of Collins and his arrest for

it.

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judgment denying him federal habeas relief reopened on this or any other basis.18

The district court did not abuse its discretion in denying his Rule 60(b) motion.

VI.

In conclusion, a Rule 60(b) motion seeking to reopen the judgment in a §

2254 or § 2255 case should be denied by the district court, unless it is filed to

correct a clerical mistake (meaning it is really a Rule 60(a) motion) or is filed

pursuant to Rule 60(b)(3) to remedy a fraud agents of the government perpetrated

on the federal court. No appeal from the denial of a Rule 60(b) motion seeking to

reopen a judgment denying § 2254 or § 2255 relief may proceed unless a § 2253

certificate of appealability is issued.

Mobley’s application for a certificate of appealability is GRANTED, but the

district court’s denial of his Rule 60(b) motion is AFFIRMED. His motion to recall

the mandate is DENIED, and the stay of execution entered on his behalf by the

panel is VACATED. Any other applications or motions Mobley has filed are

DENIED.19

18

The State of Georgia contends that even if there had been fraud it is not responsible

because Fuller was no longer a prosecutor at the time he testified; he was then a state court

judge. We need not decide how the fact that Fuller was not an attorney for the state in the

proceeding impacts the analysis, because it does not matter. Even if he had been the district

attorney at the time of his testimony in the sentence proceeding, that would not change our

conclusion.

19

There is some confusion about whether Mobley filed, or merely lodged with this Court

without subsequently filing, an application for a certificate to permit him to file a successive

75

Lazo’s application for a certificate of appealability is DENIED.

Gonzalez’s application for a certificate of appealability is GRANTED, but

the district court’s denial of his Rule 60(b) motion is AFFIRMED.

habeas petition. If he did file that application, it is denied, because it fails to fit within the

requirements of § 2244(b).

76

EDMONDSON, Chief Judge, specially concurring in part and dissenting in part:

In these appeals, we are called upon to clarify the interaction of two laws

which Congress has approved: Fed. R. Civ. P. 60 and AEDPA. As I understand our

duty in such instances, we must give each all the force that we can. See, e.g., Reg’l

Rail Reorganization Act Cases, 95 S.Ct. 335, 354 (1974) (“A new statute will not be

read as wholly or even partially amending a prior one unless there exists a positive

repugnancy between the provisions of the new and those of the old that cannot be

reconciled.”) (emphasis added). I agree, however, that AEDPA would trump Rule

60 when, and to the degree, an irreconcilable conflict arises. I believe that Judge

Tjoflat has the better understanding of how these laws interact: his view seems

more correct to me because it leaves Rule 60 more intact as well as crediting

AEDPA.

The Supreme Court’s decision in Calderon, I think, does not control the

present cases. In Calderon, the Court did not deal with Rule 60 and was not

governed by AEDPA; so, the Supreme Court did not grapple (as we do now) with

the duty to give the fullest possible credit to two different laws, each of which

Congress had approved. I cannot agree that extending Calderon -- an inherent-

judicial-powers case in which the Supreme Court acted not only as interpreter of

77

laws, but also as supervisor of lower courts -- is either necessary or proper for the

present appeals.

I suppose that the sharp-edged formulation today’s Court makes of Rule 60

will be easier for courts to apply. It might be easier because this approach seems to

require less deliberate study of the pertinent motion -- study to determine accurately

not just the name of the pertinent motion, but the function of the motion (is it in

reality a claim of illegal detention: a habeas petition?) -- than would be required by

the law as Judge Tjoflat understands it. For this reason and others, I personally like

the ingenious formulation today’s Court makes of Rule 60 in habeas cases.

If I were the policy-maker for the nation, I might embrace today’s Court’s

formulation. (Perhaps Congress will too.) But, of course, federal judges are not the

rightful makers of policy in this sphere. And we cannot properly favor what is

convenient over what is true. And what, to me, is truly required jurisprudentially in

a case like this one is the approach that gives both of the laws Congress has

approved their fullest possible force. Moreover, I am confident that judges have the

ability to apply the law as Judge Tjoflat has found it: it is hornbook law that courts

are to determine the legal effect of motions by the motions’ substance rather than by

their titles.

78

I know of the frustrations caused by the lack of finality in litigation. I

personally am keen for more finality in the criminal justice process. But today, the

finality that we as judges can rightly impose on the criminal process is no more

finality than Rule 60 and AEDPA will allow when these laws are each faithfully

given the fullest possible force. In the light of this principle, I join in the results

Judge Tjoflat would reach in these appeals.

79

TJOFLAT, Circuit Judge, specially concurring in part and dissenting in part.1

I.

Federal Rule of Civil Procedure 60(b) authorizes the district courts to relieve

a party to a civil action from the force of a final judgment on the following grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence [the party] could not

have . . . discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment.

Additionally, under what has been labeled Rule 60(b)’s “savings clause,” 2 the

district courts retain the power “to entertain an independent action to relieve a party

1

I join the majority in affirming the district court’s judgment in Mobley. I specially

concur in the majority’s judgment in Lazo. The majority refuses to grant Lazo a certificate of

appealability and therefore effectively affirms the district court’s judgment denying his Rule

60(b) motion. Because the district court lacked subject matter jurisdiction to entertain the

motion—which was a second or successive motion under 28 U.S.C. § 2255 disguised as a

motion under Rule 60(b)—I would affirm its judgment. I dissent, however, from the majority’s

decision to affirm in Gonzalez. In that case, the district court held that it lacked jurisdiction to

consider the petitioner’s Rule 60(b) motion, and the majority affirms. I believe the district court

had jurisdiction. Therefore, I would vacate the district court’s ruling and remand the case with

the instruction that the district court consider the motion on its merits.

2

Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985); Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2868, at 396

(1995).

80

from a judgment, order, or proceeding . . . or to set aside a judgment for fraud upon

the court.”

Today, the majority today holds that, with the exception of the ground

provided by Rule 60(b)(3),3 the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, precludes the district courts

of the Eleventh Circuit from entertaining Rule 60(b) motions filed by prisoners who

seek the vacation of the district court’s judgment denying them habeas corpus

relief.4 To obtain relief on any of the remaining grounds provided by the Rule (i.e.,

Rule 60(b)(1), (2), and (4)–(6)), the petitioner must apply to this court pursuant to

28 U.S.C. § 2244(b)(3) for leave to file his Rule 60(b) motion.5 The majority treats

3

The majority also recognizes a second exception. The district courts retain the

authority under Fed. R. Civ. P. 60(a) to correct “a mere clerical mistake” in a final judgment.

Maj. op. at 56. None of the three appeals before us implicates this rule; hence, I make no further

mention of it.

4

The majority’s decision restricts the ability of prisoners to file Rule 60(b) motions and

independent actions preserved by the Rule’s savings clause. Maj. op. at 55 n.11. Before today,

such actions were available to habeas petitioners. See, e.g., Buell v. Anderson, 48 Fed. Appx.

491, 498 (6th Cir. 2002) (“An independent action for relief is an equitable remedy available in

civil trials, including habeas proceedings which are conducted under civil rules of procedure.”);

Hess v. Cockrell, 281 F.3d 212, 217 (5th Cir. 2000) (denying the habeas petitioner’s independent

action for relief from adverse judgment because the petitioner failed to establish “[t]he elements

of an independent action” as prescribed in Bankers Mortgage Co. v. United States, 423 F.2d 73,

79 (5th Cir. 1970)). Unless I note otherwise, this opinion applies equally to both Rule 60(b)

motions and independent actions preserved by the Rule.

5

Both state and federal prisoners must obtain leave of the appropriate court of appeals

before filing second or successive collateral attacks upon their convictions or sentences. A court

of appeals may only grant such leave to state prisoners who satisfy the criteria of 28 U.S.C.

§ 2244(b) or federal prisoners who satisfy the criteria of § 2255. Section 2244(b) provides:

81

any motion based on one or more of those grounds as a second or successive habeas

petition (“SSHP”)6 even if the motion contains no constitutional claim at all. The

majority also holds that before the petitioner can appeal the denial of a Rule

(b)(1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be dismissed.

(b)(2) A claim presented in a second or successive habeas corpus application

under section 2254 that was not presented in a prior application shall be dismissed

unless—

(A) the applicant shows that that the claim relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as

a whole, would be sufficient to establish by clear and convincing evidence that,

but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

Section 2255 provides:

A second or successive motion must be certified as provided in section 2244 by a

panel of the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence

as a whole, would be sufficient to establish by clear and convincing evidence that

no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable.

Throughout this opinion, I analyze the effects of the majority’s holdings on litigation

involving Rule 60(b). Although I often write in terms of how § 2244’s restrictions on successive

petitions (filed by state prisoners under § 2254) will impact such litigation, this discussion

generally extends equally to § 2255’s comparable restrictions on successive motions (filed by

federal prisoners under that section). While §§ 2244 and 2255 are not textually identical, their

differences are of no consequence in my analysis unless I note otherwise.

6

Here and throughout this opinion, the phrase “second or successive habeas petitions”

and the abbreviation “SSHP” refer also to second or successive motions under § 2255.

82

60(b)(3) motion, either the district court or this court must issue a certificate of

appealability (“COA”) pursuant to 28 U.S.C. § 2253.

I respectfully dissent from these two holdings because the rationale

supporting them is fundamentally flawed. Aside from this, I am convinced that the

implementation of the majority’s holdings will unnecessarily add to the workload of

this court.

This opinion is organized as follows. Part II addresses the majority’s first

holding, which treats all Rule 60(b) motions—with the exception of those filed

under Rule 60(b)(3)—as SSHPs. Part III addresses the majority’s second holding,

which requires the issuance of a COA before a petitioner can appeal the district

court’s denial of a Rule 60(b)(3) motion. Part IV describes the practical

implications of the majority’s holdings. Part V suggests the dispositions we should

make in the three consolidated appeals before us.

II.

By treating all Rule 60(b) motions—except those filed under Rule

60(b)(3)—as SSHPs, the majority misunderstands the history and purpose of Rule

60(b), fails to appreciate the functional difference between an SSHP and a Rule

60(b) motion, and misapplies the Supreme Court’s decision in Calderon v.

83

Thompson, 523 U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998). I address

these points in turn and then suggest the course we should follow.

A.

At common law, “the term of court was decisive in determining whether or

not the district court had power over its final judgments and decrees.” Note,

History and Interpretation of Federal Rule 60(b) of the Federal Rules of Civil

Procedure, 25 Temple L.Q. 77, 78 (1951) [hereinafter “Note, History.”]. During the

term, a court “had full power to vacate or revise [its] judgments.” Commentary,

Effect of Rule 60b on Other Methods of Relief from Judgment, 4 Fed. Rules Serv.

942, 942 (1941). After the term, a party could obtain relief from a judgment only

through four types of “remedial devices”: (1) one of the ancient writs, i.e., “audita

querela, coram nobis, coram vobis, bill[s] of review, and bill[s] in the nature of bills

of review”; (2) an “[i]ndependent action[] for relief, based on extrinsic fraud,

mistake, and accident”; (3) the “[i]nherent power of the court to modify

judgments”; and (4) the “[p]ower [of the court] to disregard void judgments.” Note,

Federal Rule 60(b): Relief from Civil Judgments, 61 Yale L.J. 76, 76 n.3 (1952).

Each of the ancient writs permitted relief in different scenarios. Audita

querela, a common law writ, typically “afford[ed] relief to a judgment debtor

against a judgment or execution because of some defense or discharge arising

84

subsequent to the rendition of the judgment or the issue of the execution.” 11

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2867, at 394 (Civil 2d ed. 1995). Coram nobis and coram vobis, both

equitable in nature, sought to remedy “mistakes of fact, not appearing on the face of

the record, and but for which the judgment would not have been entered.”

Commentary, supra, at 942-43. If the judgment under attack issued from the King’s

Bench, the former writ was appropriate; if it issued from any other court, the latter

was used. Black’s Law Dictionary 338 (7th ed. 1999). A bill of review in equity

would lie upon any of four grounds: (1) “error of law apparent upon the record,” (2)

“newly discovered evidence,” (3) “the occurrence of new matter or new facts after

the entry of the decree which make its enforcement inequitable,” or (4) “fraud in

procuring the decree.” James Wm. Moore & Elizabeth B. A. Rogers, Federal Relief

from Civil Judgments, 55 Yale L.J. 623, 677-79 (1946).

Despite their formal distinctions, however, the ancient writs as a practical

matter had confusing and “uncertain boundaries.” Klapprott v. United States, 335

U.S. 601, 614, 69 S. Ct. 384, 390, 93 L. Ed. 266 (1949). For example, while the

usual rule was that audita querela lay only for matters arising subsequent to

judgment, many courts granted relief under this writ for matters arising before

judgment, thereby blurring the distinction between audita querela and coram nobis

85

(or vobis). 12 James Wm. Moore et al., Moore’s Federal Practice § 60 App. 105, at

60 App.-29 (3d ed. 2003). The Supreme Court in Klapprott recognized that “few

courts ever . . . agreed as to what circumstances would justify relief under these old

remedies.” 335 U.S. at 614, 69 S. Ct. at 390.

The enactment of the Federal Rules of Civil Procedure in 1938 was, in part,

an attempt to eliminate the confusion caused by the inconsistent application of these

ancient writs. In its original form, Rule 60(b) stated:

On motion the court, upon such terms as are just, may relieve a party

or his legal representative from a judgment, order, or proceeding taken

against him through his mistake, inadvertence, surprise, or excusable

neglect. The motion shall be made within a reasonable time, but in no

case exceeding six months after such judgment, order, or proceeding

was taken. A motion under this subdivision does not affect the finality

of a judgment or suspend its operation. This rule does not limit the

power of a court (1) to entertain an action to relieve a party from a

judgment, order, or proceeding, or (2) to set aside within one year, as

provided in Section 57 or the Judicial Code, U.S.C., Title 28, § 118, a

judgment obtained against a defendant not actually personally notified.

Moore, supra, § 60 App. 10[1], at 60 App.-2. On its face, Rule 60(b) seemed

progressive; parties could seek relief from judgments without resort to the ancient

writs and without regard to the term of court, subject to the six-month limitations

period. But many courts stripped the Rule of its progressivity through traditional

common law devices. Some courts, for example, granted motions for relief filed

more than six months after final judgment, often based upon their “‘inherent power’

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to control judgments where the ‘term’ had not expired.” Note, History, supra, at 78.

Other courts “read into [Rule 60(b)] the nebulous writs that had traditionally

provided post-term relief.” Id.

This problem did not go unnoticed. In 1946, Rule 60(b) was substantially

amended to read as it does today.7 In addition to providing six grounds for relief,

see supra Part I,

th[e] rule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, order, or

proceeding, or to grant relief to a defendant not actually personally

notified as provided in Title 28, U.S.C., § 1655, or to set aside a

judgment for fraud upon the court. Writs of coram nobis, coram vobis,

audita querela, and bills of review and bills in the nature of a bill of

review, are abolished, and the procedure for obtaining any relief from a

judgment shall be by motion as prescribed in these rules or by an

independent action.

Fed. R. Civ. P. 60(b).

The drafters of modern Rule 60(b) were unconcerned with “the substantive

law as to the grounds for vacating judgments.” Fed. R. Civ. P. 60 advisory

committee’s note (1946). Rather, they sought to create a comprehensive procedural

scheme, one that would “remove the uncertainties and historical limitations of

ancient remedies while preserving all of the various kinds of relief that they

afforded.” 11 Wright, Miller & Kane, supra, § 2851, at 227. The Rule

7

The minor amendments made since 1946 are of no concern to us here.

87

accomplished three tasks. First, it set different time limits for articulating different

grounds of relief. Second, the Rule abolished the ancient writs, “shrouded [as they

were] in ancient lore and mystery.” Advisory committee’s note, supra. Third, Rule

60(b) established four devices for parties to seek relief from civil judgments:

1. Rule 60(b) motions. A party may seek relief from a judgment upon

any ground enumerated in the Rule.

2. Independent Actions. A party may initiate a new action to seek

relief from a judgment. It may bring this action in any district court,

not just the one that rendered the judgment from which relief is sought.

11 Wright, Miller & Kane, supra, § 2851, at 229.

3. Statutory procedures. A court may grant relief from a judgment

without resort to Rule 60(b) as authorized by statute.8

4. Inherent powers. Rule 60(b) expressly permits a district court “to

set aside a judgment for fraud upon the court.”

8

There are at least three examples in this category. First, Rule 60(b) states that it does

not “limit the power of a court to . . . grant relief to a defendant not actually personally notified

as provided in Title 28, U.S.C. § 1655,” which prescribes how courts should deal with absent

defendants in lien enforcement proceedings. Second, the 1946 advisory committee’s note

recognizes that “under . . . the Soldiers’ and Sailors’ Civil Relief Act of 1940 . . . a judgment

rendered in any action or proceeding governed by the [Act] may be vacated under certain

specified circumstances upon proper application to the court.” Third, “the declaratory-judgment

statute [28 U.S.C. § 2202] authorizes the court to grant additional ‘necessary or proper relief’

based on any judgment entered under it, and a party can seek [such relief] without satisfying the

requirements of Rule 60(b).” 11 Wright, Miller & Kane, supra, § 2869, at 408.

88

The best explanation of the interrelationship of Rule 60(b) and the

independent actions preserved by the Rule’s savings clause is contained in the Fifth

Circuit’s opinion in Bankers Mortgage Co. v. United States, 423 F.2d 73, 78-79

(5th Cir. 1970):9

The second procedure contemplated by Rule 60(b) is an independent

action to obtain relief from a judgment, order, or proceeding. The . . .

saving clause specifically provides that 60(b) does not limit the power

of the court to entertain such an action. It is important to emphasize

‘independent action,’ as used in this clause, was meant to refer to a

procedure which has been historically know simply as an independent

action in equity to obtain relief from a judgment. This action should

under no circumstances be confused with ancillary common law and

equitable remedies or their modern substitute, the 60(b) motion.

When a court grants relief from a judgment or decree by a new trial or

rehearing, or by one of the ancillary common law or equitable

remedies or their modern substitute, a motion, it is exercising a

supervisory power of that court over its judgment; but the original bill,

or independent action, to impeach for fraud, accident, mistake or other

equitable ground is founded upon an independent and substantive

equitable jurisdiction.

If the litigant’s “right to make a [Rule 60(b)] motion is lost by the expiration of the

time limits fixed in these rules, the only procedural remedy is by a new or

independent action to set aside a judgment upon those principles which have

heretofore been applied in such an action.” Id. at 81 n.13.

9

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this

court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

89

B.

In part because it failed to appreciate this history, the majority overlooks the

important distinctions between the motions and independent actions Rule 60(b)

authorizes and SSHPs. Like the ancient procedures it replaced, Rule 60(b) was

never intended to permit parties to relitigate the merits of claims or defenses, or to

raise new claims or defenses that could have been asserted during the litigation of

the case. Rather, the aim of Rule 60(b) was to allow a district court to grant relief

when its judgment rests upon a defective foundation.

As applied in the habeas context, the “factual predicate [of a Rule 60(b)

motion] deals primarily with some irregularity or procedural defect in the

procurement of the judgment denying habeas relief.” Rodwell v. Pepe, 324 F.3d

66, 70 (1st Cir. 2003). The same is true with respect to an independent action

brought under the Rule’s savings clause. See Buell v. Anderson, 48 Fed. Appx.

491, 498 (6th Cir. 2002) (explaining the elements of an independent action, all of

which concern the integrity of the habeas judgment); Hess v. Cockrell, 281 F.3d

212, 217 (5th Cir. 2002) (same). A true Rule 60(b) motion “seek[s] relief from a

federal court’s final order entered in a habeas proceeding on one or more of the

grounds set forth in” the Rule. Abdur’rahman v. Bell, 537 U.S. 88, 94, 123 S. Ct.

90

594, 597, 154 L. Ed. 2d 501 (2003) (Stevens, J., dissenting). Neither proceeding

constitutes a collateral attack on the underlying conviction or sentence.

An SSHP is a different species. Like a first petition for a writ of habeas

corpus, an SSHP is a collateral attack upon the applicant’s conviction or sentence.

After AEDPA, an applicant may seek SSHP relief by asserting “(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.” Mobley v. Head, 306 F.3d 1096, 1100-01 (11th

Cir. 2002) (vacated panel opinion) (Tjoflat, J., dissenting) (quoting 28 U.S.C.

§ 2244(b)(2)). Thus, SSHPs are concerned entirely with “alleged violations of

federal rights” that occurred during the proceedings resulting in the petitioner’s

conviction or sentence. Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001).

As I noted in my dissent from the panel opinion in Mobley,

[n]either of [the] types of claims [cognizable under section 2244(b)(2)]

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.

Mobley, 306 F.3d at 1101 (Tjoflat, J., dissenting).

91

Thus, “the difference [between an SSHP and a Rule 60(b) motion] is defined

by the relief that the applicant seeks.” Abdur’rahman, 537 U.S. at 94, 123 S. Ct. at

597 (Stevens, J., dissenting). An SSHP,

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 designed to cure procedural violations in an earlier

proceeding—here, a habeas corpus proceeding—that raise questions

about that proceeding’s integrity.

Mobley, 306 F.3d at 1101 (Tjoflat, J., dissenting). By granting an SSHP, the

district court “invalidat[es]” the conviction or sentence. Rodriguez, 252 F.3d at

198. By granting a Rule 60(b) motion, the court “merely reinstate[s] the previously

dismissed petition for habeas, opening the way for further proceedings seeking

ultimately to vacate the conviction.” Id.

C.

In defense of its holding that all Rule 60(b) motions—except motions seeking

Rule 60(b)(3) relief—are SSHPs that cannot be filed in the district court without

leave of this court obtained pursuant to § 2244(b)(3)(A), the majority relies upon

the Supreme Court’s decision in Calderon.

92

In that case, the petitioner moved the court of appeals to recall its mandate

denying habeas relief. Calderon, 523 U.S. at 545-46, 118 S. Ct. at 1496.10 The

panel of the court that decided the petitioner’s appeal denied his motion. The court

thereafter convened en banc to hear oral argument on the question of “whether the

panel decision . . . would result in a fundamental miscarriage of justice.” Id. at 547,

118 S. Ct. at 1497. After hearing argument, the en banc court, acting sua sponte,

recalled the court’s mandate and affirmed the district court’s decision. Id. at 548-

49, 118 S. Ct. at 1497.

The Supreme Court reversed. Acknowledging that in some circumstances a

court of appeals has “inherent power to recall [its] mandate[],” id. at 549, 118 S. Ct.

at 1498, the Court concluded that the en banc court’s exercise of such power in this

case constituted an abuse of discretion, id. at 566, 118 S. Ct. 1506. As for the

State’s argument that AEDPA barred the court from recalling the mandate, the

Court held that AEDPA had no application because the court recalled the mandate

on its own initiative, not on the petitioner’s motion. Id. at 554, 118 S. Ct. 1500.

Nonetheless, the Court had this to say about AEDPA’s application when a court of

10

The next day, he moved the district court pursuant to Rule 60(b) to vacate its decision

which granted in part and denied in part his application for a writ of habeas corpus. The filing of

the Rule 60(b) motion had no bearing on the Supreme Court’s eventual decision in Calderon, and

it has no bearing on our decisions today.

93

appeals is considering whether to grant a habeas petitioner’s motion to recall its

mandate:

In a § 2254 case, a prisoner’s motion to recall the mandate on the basis

of the merits of the underlying decision can be regarded as a second or

successive application for purposes of § 2244(b). Otherwise,

petitioners could evade the bar against relitigation of claims presented

in a prior application, § 2244(b)(1), or the bar against litigation of

claims not presented in a prior application, § 2244(b)(2). If the court

grants such a motion, its action is subject to AEDPA irrespective of

whether the motion is based on old claims (in which case § 2244(b)(1)

would apply) or new ones (in which case § 2244(b)(2) would apply).

Id. at 553, 118 S. Ct. at 1500.

I concur in the majority’s view that once a court of appeals issues its mandate

in a habeas case, a petitioner’s Calderon-type motion to recall the mandate, which

asks the court of appeals to entertain a new claim or revisit an old claim, constitutes

an SSHP as defined by AEDPA.11 I further observe that Calderon, in application,

yields this result: the petitioner’s motion to recall the mandate must be denied. If

11

I assume here that the majority is only concerned with motions to reconsider an

appellate decision after the mandate issues. Despite its treatment of motions to recall the

mandate, the majority opinion does not explicitly interpret Calderon to treat timely petitions for

rehearing as SSHPs. I believe this discrepancy might be explained by the fact that a habeas

petitioner’s petition for rehearing must be filed prior to the court’s issuance of its mandate, while

the court can still revisit its decision. See Fed. R. App. P. 41.

Furthermore, I read Calderon to apply only to motions to recall the mandate that ask the

court of appeals to entertain new constitutional challenges to a petitioner’s conviction or

sentence or revisit old ones. I disagree with the majority insofar as it reads Calderon more

broadly. If the motion to recall the mandate challenged the integrity, rather than correctness, of

the appellate decision, that motion would, in my view, fall beyond Calderon’s scope. I must

confess, however, that such a motion is difficult to imagine.

94

the motion merely asks the court to revisit its disposition of the claims the petitioner

had (unsuccessfully) litigated, § 2244(b)(1) requires that the court deny the

motion.12 If the motion raises new claims, the court will deny it under the time-

honored rule that a court of appeals will not consider claims not seasonably

presented to the district court in the first instance.13

Calderon does not speak to the authority of the district court to grant a habeas

petitioner relief under Rule 60(b). The majority believes that it does by analogy.14

An analogy may appear at first blush, but, to me at least, it disappears when one

12

In a case in which, after the court of appeals mandate issued, the Supreme Court

handed down a new rule of constitutional law made retroactive to cases on collateral review that

would have required the court of appeals to decide a claim in favor of, rather than against, the

petitioner, query whether AEDPA, as interpreted in Calderon, would permit the court to grant

the petitioner’s motion to recall the mandate (on the basis of the new rule) or require the court to

deny the motion under § 2244(b)(1). If AEDPA would bar the court from granting the

petitioner’s motion, the petitioner’s avenues of relief would be to (1) move the district court

pursuant to Rule 60(b)(6) to vacate its decision rejecting the claim, or (2) bring an independent

action, as permitted by Rule 60(b)’s savings clause.

13

In denying the motion, although the law would not require it to do so, the court could

call the petitioner’s attention to § 2244(b)(3)(A) and inform the petitioner that if he wishes to

pursue his new claims, he must apply to this court for leave to file the claims in the district court.

14

According to the majority,

Calderon’s lessons about whether and when an appellate court’s power to recall a

mandate may be used in habeas cases apply with as much force to the question of

whether and when a trial court’s Rule 60(b) authority to reopen a final judgment

may be used in a habeas case. Recalling the mandate to reopen and alter the final

judgment in a habeas case is the closest thing on the appellate level to the use of

Rule 60(b) to reopen and change a final judgment at the trial level.

Maj. op. at 49-50.

95

compares recalling an appellate mandate with the collateral attacks provided by

Rule 60(b) and the independent actions the Rule preserves under its savings clause.

By recalling its mandate, the court of appeals may reexamine its decision.

Calderon permits the court to recall its mandate for such purpose if it does so on its

own initiative. The fact that Calderon bars the court from recalling its mandate (in a

habeas case) on the petitioner’s motion does not alter the fact that, once the mandate

is recalled, the court is in the same position it occupied before the mandate issued.

When considering a motion to recall the mandate similar to that addressed in

Calderon, the court of appeals is not entertaining a collateral attack that questions

the integrity or legitimacy of its judgment. See supra note 11. Instead, drawing on

the same record it had before it when it rendered its decision, the court is simply

reconsidering whether to adhere to its decision or come down another way.

The district courts lack the broad power the courts of appeals possess to recall

their judgments. If it does not receive a motion filed pursuant to Rules 50(b), 52(b),

59 (a) or (e), or act sua sponte under Rule 59(d) of the Federal Rules of Civil

Procedure no later than “10 days after the entry of judgment,” a district court loses

jurisdiction to revisit the claims and defenses the judgment resolved.15 As

15

After it receives a motion filed under one or more of these rules within this 10-day

time limit, the court obviously retains jurisdiction beyond the 10 days to rule on the motion. A

final judgment that contains injunctive relief may give the court jurisdiction to enforce such

relief. Such retention of jurisdiction is not implicated in any of the cases now before us.

96

explained in Part II.A, supra, Rule 60(b) and the independent actions its savings

clause preserves give the court the power to set aside a judgment whose integrity is

lacking. What Rule 60(b) and these independent actions do not provide is a means

for litigants to obtain the district court’s reconsideration of the claims and defenses

its judgment adjudicated. See Am. Bankers Ins. Co. v. Northwestern Nat’l Ins. Co.,

198 F.3d 1332, 1338 (11th Cir. 1999) (“[T]he law is clear that Rule 60(b) may not

be used to challenge mistakes of law which could have been raised on direct

appeal[,]” the implication being that all that the Rule provides is a vehicle for

attacking the integrity of the district court’s judgment); Travelers Indem. Co. v.

Gore, 761 F.2d 1549, 1552 (11th Cir. 1985) (“[T]he plaintiff cannot use an

independent action as a vehicle for the relitigation of issues.”); Bankers Mortgage

Co., 423 F.2d at 79 (5th Cir. 1970) (“The independent action can not be made a

vehicle for the relitigation of issues.”); Donovan v. Sovereign Sec. Ltd., 726 F.2d

55, 60 (2d Cir. 1984) (“[Litigants] may not use proceedings seeking relief from or

modification of a judgment under F. R. Civ. P. 60 simply to relitigate matters

settled by the original judgment. . . .”); Kustom Signals, Inc. v. Applied Concepts,

Inc., 247 F. Supp. 2d 1233, 1235 (D. Kan. 2003) (“Like a motion to reconsider, a

motion under Rule 60(b) is not a second opportunity for the losing party to make its

97

strongest case, to rehash arguments, or to dress up arguments that previously

failed.”).

What the foregoing discussion establishes, I believe, is that a legally

significant analogy cannot be drawn between a motion to recall an appellate

mandate and a motion or independent action brought under Rule 60(b). None of the

motions or independent actions authorized by Rule 60(b) should assert that the

petitioner’s underlying criminal conviction or sentence is infirm on the basis of a

constitutional claim that was or was not included in the habeas petition the

petitioner litigated to final judgment in the district court. If such motions or

independent actions present a co

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