Amicus Curiae Brief — Abdur'Rahman v. Bell
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No. 01-9094
IN THE SEP 12 DR
Supreme Court of the Cinited States
ABU-ALI ABDUR’ RAHMAN,
Petitioner,
y
RICKY BELL, WARDEN,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
BRIEF OF THE STATES OF ALABAMA, ARIZONA,
ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT,
DELAWARE, FLORIDA, GEORGIA, IDAHO, ILLINOIS,
INDIANA, KANSAS, LOUISIANA, MASSACHUSETTS,
MONTANA, NEBRASKA, NEVADA, NEW JERSEY,
NORTH DAKOTA, OHIO, OKLAHOMA, PENNSYLVANIA,
SOUTH CAROLINA, SOUTH DAKOTA, TEXAS, UTAH,
VIRGINIA, WASHINGTON, AND WEST VIRGINIA AS
AMICI CURIAE IN SUPPORT OF RESPONDENT
BILL PRYOR CARTER G. PHILLIPS
ATTORNEY GENERAL GENE C. SCHAERR*
NATHAN A. FORRESTER PAUL J. ZIDLICKY
SOLICITOR GENERAL STEVEN T. COTTREAU
OFFICE OF THE ATTORNEY REBECCA K. WooD
GENERAL SIDLEY AUSTIN BROWN
STATE OF ALABAMA & WOOD LLP
11 South Union Street 1501 K Street, NW
Montgomery, AL 36130 Washington, DC 20005
(334) 242-7300 (202) 736-8000
Counsel for Amici Curiae
September 12, 2002 *Counsel of Recerd
| Additional Counsel Listed on Inside Cover and Front Pages]
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JANET NAPOLITANO
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BILL LOCKER
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STATE OF CALIFORNIA
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JOHN M. BAILEY
CHIEF STATE’S ATTORNEY
STATE OF CONNECTICUT
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ROBERT A. BUTTERWORTH
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‘STATE OF FLORIDA
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ALAN G. LANCE
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STATE OF INDIANA
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M. JANE BRADY
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STATE OF DELAWARE
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THURBERT E. BAKER
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THOMAS F. REILLY
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COMMONWEALTH OF
MASSACHUSETTS
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DON STENBERG
ATTORNEY GENERAL
STATE OF NEBRASKA
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DAVID SAMSON
ATTORNEY GENERAL
STATE OF NEW JERSEY
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BETTY D. MONTGOMERY
ATTORNEY GENERAL
STATE OF OHIO
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MARK BARNETT
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STATE OF SOUTH DAKOTA
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ATTORNEY GENERAL
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DARRELL V. MCGRAW, JR.
ATTORNEY GENERAL
STATE OF WEST VIRGINIA
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MARK L. SHURTLEFF
ATTORNEY GENERAL
STATE OF UTAH
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CHRISTINE O. GREGOIRE
ATTORNEY GENERAL
STATE OF WASHINGTON
P.O. Box 40100
Olympia, WA 98504
* (360) 753-6245
QUESTIONS PRESENTED
1. Whether the Sixth Circuit properly held, consistent with
28 U.S.C. § 2244 and the decisions of this Court, that a Rule
60(b) motion that seeks collateral review of a State criminal
conviction, when the prisoner already has received an
‘adjudication of a federal habeas application, constitutes a
“second or successive” habeas application.
2. Whether the Sixth Circuit’s decision should be affirmed
on the alternative ground that it would have been an abuse of
discretion for the district court to grant a Rule 60(b) motion
seeking to revive a claim that the federal district court
rejected as procedurally defaulted based upon a subsequent
development in State procedural law that has no impact on the
availability of review in State court.
(1)
a aa
_
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................ccccccssccssssceeseees
I i rcccancntchitananenlinhepanitinsiesasenies
ST ATERGEING OF TNTEIRIOE ............cccccccseceeesees.
STATEMEENT OF FACTS....................:cc00..000.
SUMMARY OF ARGUMENT...
“SECOND OR SUCCESSIVE” HABEAS
APPLICATIONS APPLY TO PETITIONER'S
RULE 60(b) MOTION AND ANY OTHER
FEDERAL FILINGS THAT SEEK, DIRECTLY
OR INDIRECTLY, TO OBTAIN COLLATER-
AL REVIEW OF A CRIMINAL CONVICTION
WHERE THE PRISONER HAS ALREADY
RECEIVED A FULL ADJUDICATION OF ONE
FEDERAL HABEAS APPLICATION
A. Under AEDPA, Any Federal Court Filings
That Seek, Directly Or Indirectly, A Second
Adjudication Of The Right To Federal Habeas
Relief Constitute “Second Or Successive Ap-
plications” Subject To AEDPA’s Limitations
B.A Rule 60(b) Motion Seeking A Second
Adjudication Of A Request For Federal
Habeas Relief Predicated On A Change In The
Law Or New Facts Constitutes A “Second Or
Successive Application” Subject To The
Limitations Of Section 2244(b)
(111)
10
16
iV
TABLE OF CONTENTS—continued
Il EVEN IF NOT CONSIDERED A HABEAS
APPLICATION, PETITIONER’S RULE 60(b)
MOTION MUST BE DENIED, BOTH
BECAUSE IT IS LEGALLY FUTILE AND
BECAUSE GRANTING RULE 60(b) RELIEF
WOULD CONTRAVENE THE POLICIES
UNDERLYING AEDPA............... sideldcpiseieibabimaaiinn
A. Petitioner’s Motion Is Futile Because, Under
AEDPA And This Court’s Decision In
O'Sullivan, New State Court Rules Or Declar-
ations That Do Not Affect The Availability Of
A State Court Procedure Have No Bearing On
Whether A Claim Has Properly Been Exhaust-
ed For Purposes Of Federal Habeas Law .........
B Reopening The District Court’s Prior
Conclusion Of Procedural Default Would
Contravene The Policies Underlying AEDPA
And This Court’s Habeas Jurisprudence .....
CONCLUSION
Page
19
24
29
Vv
TABLE OF AUTHORITIES
CASES \ Page
Abdur ‘Rahman v. Bell, 122 S. Ct. 386 (2001)....... 6
Brecht v. Abrahamson, 507 U.S. 619 (1993)......... 13
Calderon v. Thompson, 523 U.S. 538 (1998) ....... passim
Coleman v. Thompson, 501 U.S. 722 (1991).....7, 15, 25
Gray v. Netherland, 518 U.S. 152 (1996).............. 5
Jones v. State, No. 01C01-9402-CR-00079, 1995
WL 75427 (Tenn. Crim. App. Feb. 23, 1995),
cert. denied, 516 U.S. 1122 (1996)... 4,6
Jones v. Tennessee, 516 U.S. 1122 (1996)............ 4
McCleskey v. Zant, 499 U.S. 467 (1991)........ 13, 15, 27
O'Melveny & Myers v. FDIC, 512 US. 79
ERR er Sco Res 16
O'Sullivan v. Boerckel, 526 U.S. 838 (1999)........ passim
Ex parte Royal, 117 U.S. 241 (1886)..........00......... 24
Slack v. McDaniel, 529 U.S. 473 (2000)............. 12,14
State v. Jones, 789 S.W.2d 545 (Tenn.), cert.
denied, 498 U.S. 908 (1990)... 4
State v. Jones, 498 U.S. 908 (1990) ... 4
State vy. McKennedy, 559 S.E.2d 850 (Ss. c
re 19
State v. Sandon, 77 P 2d 220 (Ariz. 1989). os 19
Stewart v. Martinez-Villareal, 523 US. 637
RASTER o ne va ae
Teague v. Lane, 489 U.S. 288 (1989)... 13, 27
Wainwright v. Sykes, 433 U.S. 72 (1977) 13
Williams v. Taylor, 529 U.S. 362 (2000) 1]
Williams v. Taylor, 529 U.S. 420 (2000) 25
STATUTES
28 USC. § 2244(b) | passim
§ 2254 1, 7,21, 26
vi
TABLE OF AUTHORITIES—continued
LEGISLATIVE HISTORY
142 Cong. Rec. $3465 (daily ed. Apr. 17, 1996) ...
H.R. Conf. Rep. No. 104-518 (1996), reprinted in
I I
President William Jefferson Clinton’s Statement
on Signing the Antiterrorism and Effective
Death Penalty Act of 1996, 32 Weekly Comp.
Pres. Doc. 719 (Apr. 24, 1996) .............000oo..
RULES AND ORDER
I i eae ano
I
Tenn. R. App. P. 11, 1999 Ad. Comm’n Cmt........
In re: Exhaustion of State Remedies in Criminal
\ and Post-Conviction Relief Cases, No. 218
Judicial Administration Docket No. | (Pa. May
OTHER AUTHORITIES
Annual Report of the Tennessee Judiciary,
Statewide Appellate and State Trial Court
Statistics, FY 1999-2000 (2000) ............000000000...
Annual Report of the Tennessee Judiciary,
Statewide Appellate and State Trial Court
Statistics, FY 2000-2001 (2001) .............0000000....
A Practitioner’s-Eye View of the Court, Legal
I i
Bryan A. Stevenson, The Politics of Fear and
Death: Successive Problems in Capital Federal
Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699
REE EG SPEND ORC a Dr ODN a ON
Page
11
1]
11
19
23
23
OE
STATEMENT OF INTEREST
One of the principal objectives of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), and indeed
of this Court’s habeas corpus jurisprudence over the past 25
years, has been to reduce the incursion into State sovereignty
that results when federal courts consider successive collateral
attacks on a State court criminal judgment. In this case, the
overarching issue is whether a State prisoner can circumvent
the finality rules that Congress and this Court have adopted to
limit such successive attacks by the simple expedient of a
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b), or by analogous procedures intended to
attack, directly or indirectly, the underlying State court
judgment.
Although amici curiae take no position on petitioner’s
specific allegations of prosecutorial misconduct, amici have a
keen interest in the proper application of AEDPA’s finality
requirements, which have been codified in 28 U.S.C.
§ 2244(b). Those requirements are designed to ensure that,
absent extraordinary circumstances, States will not have to
defend their criminal judgments against second or successive
collateral attacks in federal court. The availability of repeated
collateral attacks undermines both the finality and
presumptive validity of those judgments and requires States to
expend scarce societal resources.
Similarly, amici are keenly interested in ensuring that their
State courts are afforded every reasonable opportunity to
assess whether a criminal judgment is consistent with federal
law before that issue is reviewed by a federal habeas court.
Exhaustion of available State remedies promotes federal-State
comity and is mandated by federal habeas corpus law. 28
U.S.C. § 2254(c).
If adopted by this Court, petitioner's arguments would
undermine both of these interests. In so doing, those
arguments would erode the significant progress reflected in
2
Congress’s enactment of AEDPA and in the decisions of this
Court on which AEDPA was built. Indeed, opponents of
AEDPA have urged that Rule 60(b)—the procedural vehicle
that petitioner has used in seeking to overturn his State court
conviction—can and should be used to evade these statutory
and judicial limitations on federal habeas petitions. See, e.g.,
Bryan A. Stevenson, Zhe Politics of Fear and Death:
Successive Problems in Capital Federal Habeas Corpus
Cases, 77 N.Y.U. L. Rev. 699, 774 (2002) (suggesting
“creative use of motions under Rule 60(b)” to avoid
limitations on the ability of courts to consider second and
successive habeas petitions). Petitioner’s own counsel has
publicly stated that, if this Court rules that petitioner’s Rule
60(b) motion must be entertained and adjudicated on the
merits, such motions “would be{come] the vehicle with which
to reopen” the State court criminal judgments of numerous
State prisoners. A Practitioner’s-Eye View of the Court,
Legal Times, Aug. 12, 2002, at 18 (remarks of petitioner’s
counsel of record) (emphasis added).
STATEMENT OF FACTS
Amici agree with the statement in respondent’s brief, but
believe that a brief overview of the procedural history of this
case in State and federal court will help to highlight the issues
before the Court.
1. On February 17, 1986, petitioner and co-defendant
Harold Miller entered the duplex of Patrick Daniels under the
pretext of making a drug purchase. J.A. 103. Petitioner and
Miller forced Daniels and his girlfriend Norma Norman to the
floor. /d. Petitioner then bound Daniels and Norman with
duct tape about their hands, feet, eyes and mouth /d
Petitioner stole Daniels bank card and forced Daniels to
reveal his PIN number. /d. Petitioner then obtained a butcher
knife from the kitchen “and stabbed Daniels six times in the
chest.” /d. “Prior to and during the stabbing, Daniels was
crying and begging Petitioner not to hurt anyone. After
3
Daniels became motionless, Petitioner stabbed Norman in the
back several times.” Jd. Petitioner left the knife inside Ms.
Norman and fled the scene. Jd Daniels died as a result of his
wounds; Norman survived. /d. at 103-04.
More than fifteen years ago, in July 1987, a Tennessee jury
convicted petitioner of first-degree murder, assault with intent
to commit first degree murder with bodily injury, and armed
robbery. JA 102. The jury returned a death sentence on the
murder charge and life sentences on each of the other
convictions.
There can be no serious question of petitioner’s actual guilt
or his role in this crime. Petitioner’s current claim of
prosecutorial misconduct is predicated upon an argument that
Miller, rather than petitioner, stabbed the victims. At the
sentencing phase of his trial, however, petitioner repeatedly
testified that the contrary was true. For example, he stated:
“I’m going to submit to the fact that I am the individual
that committed these particular felonies or assaults upon
these two people... . All I know is that I’m the man that
stabbed Mr. Daniel Patricks (sic) and I’m the man that
assaulted Ms. Norma Jean Norman.”
JA 65 (quoting Addendum I, at 1865). Elsewhere, petitioner
responded to a question from counsel with the following
admission:
“Q. And you heard Mr. Miller testify from the very seat
that you’re in right now, that you were the man who
stabbed Mr. Daniels to death. And you knew it when
you were setting [sic] there, that that was true, didn’t
you.
A. That I was the man, yes.”
Id. In light of this testimony and other evidence, the jury
returned a sentence of death because it found that
(i) petitioner previously was convicted of second-degree
murder and assault with a dangerous weapon, (ii) the murder
4
of Mr. Daniels was “especially heinous, atrocious or cruel”;
and (iii) the murder of Mr. Daniels occurred in relation to
another serious crime. /d at 102-04 Against these
aggravating factors, petitioner presented virtually no evidence
in support of mitigation. /d at 105.
On April 2, 1990, petitioner’s conviction and sentence were
affirmed on direct review by the Tennessee Supreme Court.
789 S.W.2d 545 (Tenn. 1990). The Tennessee Supreme
Court denied petitioner’s request for rehearing on May 14,
1990, and this Court denied certiorari. 498 U.S. 908 (1990).
2. In May 1993, a Tennessee trial judge conducted a three-
day evidentiary hearing, and thereafter issued a memorandum
opinion rejecting petitioner’s request for post-conviction
relief. Two years later, the Court of Criminal Appeals of
Tennessee considered petitioner’s claim that the prosecutor
allegedly failed to provide certain exculpatory Brady
materials during the sentencing phase, but found “no merit in
the [petitioner’s] claim of prosecutorial misconduct” because
“{njone of the [this] evidence was favorable to the defense.”
See Jones v. State, No. 01C01-9402-CR-00079, 1995 WL
75427, at *3 (Tenn. Crim. App. Feb. 23, 1995). The Court of
Criminal Appeals rejected all of petitioner's remaining
claims. See id.
Petitioner then filed a petition for discretionary review to
the Tennessee Supreme Court. Petitioner concedes that he
abandoned the “the bulk of his prosecutorial misconduct
claims,” Pet. Br. 25, the very claims upon which he predicates
his request for relitigation in federal court. The Tennessee
Supreme Court denied discretionary review seven years ago,
on August 28, 1995, and this Court again denied certiorari.
516 U.S. 1122 (1996).
3. On April 23, 1996, petitioner filed a federal petition for
a writ of habeas corpus in the United States District Court for
the Middle District of Tennessee. J.A. 1. Petitioner raised
‘numerous claims of prosecutorial misconduct, among other
5
claims. /d. at 56-60. The District Court determined that
petitioner had properly exhausted two _ prosecutorial
misconduct claims with respect to alleged Brady violations,
id. at 59, 69, but concluded that there was no merit to either of
these properly exhausted claims, id. at 69-74.
The district court further held that petitioner’s remaining
claims, including the prosecutorial misconduct claims at issue
here, had not been exhausted before the State courts. JA 59,
69. Relying upon this Court’s decision in Gray Vv.
Netherland, 518 U.S. 152 (1996), the district court explained
that federal law requires a “habeas corpus petitioner to
exhaust the remedies available to him in state court before
raising claims in federal court” and “[i]f the petitioner has no
remedy currently available in state court .. . the exhaustion
requirement is satisfied.” J.A. 50. Nevertheless, “[aJlthough
a claim may be fully exhausted” in the sense that a petitioner
has no remaining avenue for State court review, “the
petitioner's failure to assert the claim in state court may
constitute procedural default” that “bars the petitioner from
raising claims in a federal habeas corpus proceeding that he
failed to raise in state court.” id. at 51. As applied here, the
district court determined that “petitioner had failed to
exhaust” the prosecutorial misconduct claims at issue in this
case because he failed to seek discretionary review of them
before the Tennessee Supreme Court. /d at 59. Further, the
district court determined that petitioner could “no longer
present those claims to the state court... . because they would
be barred by the statute of limitations.” /d. (citing Tenn.
Code Ann. § 40-30-202). As a result, the district court
concluded that these claims were “procedurally defaulted.”
Id. at 60.' The district court, however, did grant habeas relief
' The District Court catalogued petitioner’s defaulted claims. See JA
57-58 & 57 n8. As indicated above, prior to petitioner's secking review
from the Tennessee Supreme Court, the Tennessee Court of Criminal
Appeals previously had reviewed and rejected petitioner's claims of
6
with respect to certain of petitioner’s ineffective assistance of
counsel claims and vacated his death sentence. /d. at 100.
On appeal to the United States Court of Appeals for the
Sixth Circuit, petitioner concedes that he “did not challenge”
the district court’s holding that petitioner’s prosecutorial
misconduct claims had been procedurally defaulted. JA 155.
He did, however, cross-appeal the district court’s
determinations regarding numerous issues. /d. at 123, 127.
On September 13, 2000, the Sixth Circuit vacated the
district court’s order granting habeas relief JA 19
Subsequently, the Sixth Circuit granted petitioner’s motion to
“stay [the] mandate pending petition for writ of certiorari.”
Id. at 21, On May 21, 2001, after several extensions,
petitioner filed a petition for certiorari with the Court. JA 21-
22 (Petition No. 00-1742). This Court denied certiorari for a
third time on October 9, 2001, as to those issues petitioner
had preserved and appealed in his first habeas petition. 122
S. Ct. 386 (2001).
4. On November 2, 2001, petitioner filed a motion
pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure in the District Court. In his motion, petitioner
sought relief from the District Court’s April 8, 1998 judgment
with respect to the procedurally defaulted claims of
prosecutorial misconduct based upon Tennessee Supreme
Court Rule 39, which was adopted June 28, 2001. JA 40.
The district court determined that it lacked jurisdiction to
consider the Rule 60(b) motion because it “presents a new
theory predicated on a new rule of law adopted by the
Tennessee Supreme Court over three years after this Court’s
Judgment” and therefore was a “second or successive habeas
petition.” /d. at 42.
The Sixth Circuit then denied petitioner’s application for a
certificate of appealability. It concluded that petitioner’s Rule
prosecutorial misconduct. See Jones v. State, No. 01C01-9402-CR-
00079, 1995 WL 75427, at *3 (Tenn. Crim. App. Feb. 23, 1995).
7
60(b) motion was the equivalent of a successive habeas
petition, and that petitioner had failed to meet the gateway
criteria of Section 2244(b)(2). J.A. 36. The Sixth Circuit also
denied petitioner's related motions to withhold mandate, grant
a rehearing en banc, and remand. /d at 35
SUMMARY OF ARGUMENT
Recognizing the importance of finality of State criminal
proceedings, Congress and this Court have developed
standards through which to ensure that State court judgments
may not be challenged, absent extraordinary circumstances, in
second and successive habeas corpus petitions. See 28 US.C
§ 2244(b); Coleman v. Thompson, 501 U.S. 722, 731-32
(1991). Similarly, Congress and this Court have adopted
standards requiring habeas petitioners to exhaust claims that
they might have in State court before asking a federal court to
set aside a State court criminal conviction. See 28 USC.
§ 2254(c); O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).
Petitioner’s arguments reflect a significant attack on both of
these requirements which, if accepted, could seriously erode
the important limitations that this Court and Congress have
developed over the past 25 years.
1. Petitioner first asks the Court to sanction a procedure
through which habeas petitioners may evade the finality
requirements of AEDPA by labeling an effort to obtain a
second adjudication of a request for federal habeas relief as
something other than a habeas corpus application That
argument, if accepted, would allow petitioners to circumvent
the requirements Congress adopted in Section 2244(b) to
prohibit federal habeas petitioners from filing repeated federal
habeas challenges to State court criminal judgments. Not
surprisingly, this Court already has held that the requirements
of Section 2244(b) cannot be eroded through creative labeling
of what, in substance, constitutes a second adjudication of
federal habeas claims. See Calderon v. Thompson, 523 US.
§38, 547 (1998). Petitioner's contrary argument would make
a mockery of the finality requirements enacted by Congress in
Section 2244(b). At a minimum, a petitioner should not be
permitted to evade the requirements of Section 2244(b) by
filing a Rule 60(b) motion that seeks a second adjudication,
either directly or indirectly, based upon an intervening
development of law or fact given that Section 2244(b) was
designed specifically to limit such efforts
2. Even if petitioner's Rule 60(b) motion were not
considered a second or successive habeas application,
petitioner’s request that this Court permit him to relitigate his
prosecutorial misconduct claim through a Rule 60(b) motion
should be rejected. First, that motion is futile as a matter of
law because, under the exhaustion requirement of Section
2254(c), the adoption of a State court rule that does not affect
the availability of procedures for seeking relief is irrelevant to
the question of exhaustion under federal law. In O'Sullivan v.
Boerckel, this Court ruled that the exhaustion required under
Section 2254(c) “turns on an inquiry into what procedures are
‘available’ under state law” and that “the creation of a
discretionary review system does not, without more, make
review in [a State supreme court] unavailable.” 526 US. at
847-48.
Here, petitioner failed to satisfy Section 2254(c) because he
was entitled to, but did not, present his claims to the
Tennessee Supreme Court. The Tennessee Supreme Court's
subsequent adoption of Rule 39 in no way affects that
conclusion because Rule 39 does not purport to alter “what
procedures are ‘available’ under state law.” O'Sullivan, 526
U.S. at 847. Simply put, both before and after the enactment
of Rule 39, a petitioner could have sought discretionary
review before the Tennessee Supreme Court in precisely the _
same way a3 the petitioner whose claims this Court held were
procedurally defaulted in O'Sullivan. Because petitioner did
not, his claims were procedurally defaulted long ago and
cannot be revived for federal habeas purposes by subsequent
changes in State procedural law.
9
Second, even if petitioner's Rule 60(b) motion were not
futile, granting it would nevertheless be an abuse of discretion
because it would contravene the policies underlying AEDPA
In Calderon, this Court explained that, even in cases to which
AEDPA does not apply directly, courts must exercise their
discretion “in a manner consistent with the objects of
[AEDPA]” and “must be guided by the general principles
underlying our habeas corpus jurisprudence.” 523 US. at
554.
Under these standards, relief is inappropriate because
petitioner has failed to identify circumstances that would
justify reconsideration of his prosecutorial misconduct claims
Indeed, Congress has explained that second or successive
habeas corpus applications with respect to new legal issues
may be considered only when there has been, unlike here, 4
change in constitutional law that has been made retroactive by
this Court See 28 USC. § 2244(b)(2)A). Here, the
“change” in State law relied upon by petitioner bears no
relation to the types of changes that Congress has deemed
sufficient to justify relitigation of procedurally defaulted
claims.
ARGUMENT
I. SECTION 2244(b)’S RESTRICTIONS ON “SECOND
OR SUCCESSIVE” HABEAS APPLICATIONS
APPLY TO PETITIONER’S RULE 60(b) MOTION
AND ANY OTHER FEDERAL FILINGS THAT
SEEK, DIRECTLY OR INDIRECTLY, TO OBTAIN
COLLATERAL REVIEW OF A_ CRIMINAL
CONVICTION WHERE THE PRISONER HAS
ALREADY RECEIVED A FULL ADJUDICATION
OF ONE FEDERAL HABEAS APPLICATION.
The core principle underlying 28 U.S.C. § 2244(b) is that,
absent extraordinary circumstances, a federal habeas
petitioner should have only one opportunity to adjudicate a
10
federal habeas challenge to a State court criminal judgment in
federal court. Petitioner’s efforts to circumvent this specific
limitation through a general rule of civil procedure should be
rejected. Specifically, as shown below, Section 2244(b)
cannot be evaded based upon the label given to a filing that
seeks directly or indirectly to obtain a second adjudication of
a federal habeas challenge to a State court judgment. That is
particularly true of a motion that seeks to litigate a matter
implicated by one of the express exceptions to Section
2244(b)’s ban on second or successive applications.
A. Under AEDPA, Any Federal Court Filings That
Seek, Directly Or Indirectly, A Second Adjudi-
cation Of The Right To Federal Habeas Relief
Constitute “Second Or Successive Applications”
Subject To AEDPA’s Limitations.
The key question of statutory interpretation in this case is
what constitutes a “second or successive application” within
the meaning of Section 2244(b). Under the language of that
provision, as correctly interpreted in Calderon, 523 US. at
552-54, and under this Court’s pre-AEDPA habeas
jurisprudence, a prisoner who has already received one
adjudication of an application for habeas relief may not
circumvent habeas finality requirements through creative
labeling of federal-court filings that again seek, directly or
indirectly, to overturn the prisoner’s State criminal
conviction. Adoption of petitioner’ $ contrary arguments
would elevate form over substance ”
* Petitioner contends that AEDPA does not apply to his Rule 60(b)
motion because it relates back to his first habeas corpus petition, which
was filed before AEDPA took effect. Pet. Br. 27. But that argument
merely assumes the answer to the question presented—whether his Rule
60(b) motion is properly treated as a second or successive habeas corpus
application. If it is a second or successive habeas corpus application,
because petitioner's Rule 60(b) motion was filed on November 2, 2001.
well after the effective date of AEDPA (April 24, 1996), there can be no
question that the requirements of AEDPA would apply.
Ete oe
1. In enacting AEDPA, “Congress wished to curb delays,
to prevent ‘retrials’ on federal habeas, and to give effect to
state convictions to the extent possible under law.” Williams
v. Taylor, 529 U.S. 362, 386 (2000) (opinion of Stevens, J.),
see also id. at 404 (O’Connor, J., for the Court) Congress
further sought to limit “abuse of the statutory writ of habeas
corpus, and to address the acute problem[] of unnecessary
delay __. in capital cases.” H.R. Conf. Rep. No. 104-518, at
111 (1996), reprinted in 1996 US.C.C.AN. 944, 944. As
President Clinton explained, “For too long, and in too many
cases, endless death row appeals have stood in the way of
justice being served.” President William Jefferson Clinton's
Statement on Signing the Antiterrorism and Effective Death
Penalty Act of 1996, 32 Weekly Comp. Pres. Doc. 719, 720
(Apr. 24, 1996), accord 142 Cong. Rec. $3465 (daily ed. Apr
17, 1996) (statement of Sen. Warner) (stating that reform was
needed to stop “the charade of habeas corpus appeals” and to
preclude “death row inmates [from] drag[ging] out their
appeals for several decades’”’).
To accomplish these goals, Congress adopted restrictions
on federal habeas petitioners who seek to raise claims after
having previously received an adjudication of an application
for federal habeas relief. 28 U.S.C. § 2244(b).
In doing so, Congress limited efforts to relitigate claims
that already had been presented in a prior application as well
as efforts to raise new claims. As to the former, Congress
explained that a “claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.” /d.
§ 2244(b)(1) (emphasis added).
As to the latter, Congress provided two exceptions to the
general rule of finality. First, with respect to new legal
developments, Congress dictated that the adoption of a “new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable” could be presented in a second or successive
12
habeas petition if that claim “was not presented in a prior
application.” /d. § 2244(b)(2).
Second, Congress also provided a limited avenue of review
with respect to new factual developments bearing on actual
innocence Specifically, claims that were not presented in a
prior application may be presented in a second or successive
habeas corpus when (i) “the factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence,” and (ii) such facts, “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 the constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying
offense.” /d.
2. In determining whether a federal habeas petitioner’s
motion constitutes a “second or successive habeas
application” under Section 2244(b), the Court has adopted a
functional approach, refusing to allow State prisoners to
elevate form over substance. Accordingly, a federal court is
required to examine the substance of a habeas petitioner’s
court filing, rather than its label, to determine whether it is, in
fact, a second or successive application. This approach
ensures that habeas petitioners cannot, though creative
labeling, “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).” Calderon, 523 U.S. at 553; see
also Slack y. McDaniel, 529 U.S. 473, 486 (2000) (noting that
the “phrase ‘second or successive petition’ is a term of art
given substance in our prior habeas corpus cases”). -
Indeed, this functional approach is necessary given the
procedural gamesmanship often associated with efforts to
obtain multiple adjudications of requests for federal habeas
relief. Such abuses have been well catalogued by this Court.
They include, for example, abandoning weaker claims either
during State post-conviction proceedings or after an initial
13
habeas loss before a federal district court, and then attempting
to revive them later if all else failed See, e.g., McCleskey v
Zant, 499 U.S. 467, 489-90 (1991) Given these experiences,
Congress and this Court adopted restrictions on efforts to
obtain a second bite at the federal habeas apple as a way of
imposing “limits on the discretion of federal courts to grant
habeas relief.” Calderon, 523 US. at 555, see also, e.g,
Brecht v. Abrahamson, 507 US. 619, 637-38 (1993);
McCleskey, 499 U.S. at 487, Teague v. Lane, 489 US. 288,
308-10 (1989) (plurality); Wainwright v. Sykes, 433 U.S. 72,
90-91 (1977).
Such a functional approach is also necessary to effectuate
the language and purposes of Section 2244(b) The ability to
avoid the substantive impact of Section 2244(b) through
mislabeling would create a massive loophole that would
permit habeas corpus petitioners to mount, with impunity, two
or more collateral attacks on State criminal judgments. It
would, in short, allow State prisoners to control the
availability of federal court proceedings based solely on the
form, and not the substance, of their federal-court filings.
Section 2244(b) thus reflects the broad principle that, absent
exceptional circumstances, a federal habeas petitioner should
not be permitted more than one opportunity to have a request
for federal habeas relief adjudicated by a federal court.
The Court’s analysis in Calderon v. Thompson is
instructive. There, after Thompson’s federal habeas petition
had been denied, Thompson filed a motion to recall the
mandate in the court of appeals and a Rule 60(b) motion in
the district court. 523 US. at 546. The district court denied
the Rule 60(b) motion, reasoning (correctly) that petitioner
““must not be permitted to utilize a Rule 60(b) motion to
make an end-run around the requirements’ of AEDPA.” /d. at
547. The court of appeals, however, sua sponte voted to
recall its prior mandate. /d.
This Court reversed the Ninth Circuit’s decision to recall its
mandate. In doing so, the Court first explained that, in
14
determining whether a pleading is an “application” for
purposes of Section 2244(b), a “motion to recall the
mandate... can be regarded as a second or successive
application for purposes of § 2244(b).” /d at 553.
“Otherwise,” the Court explained, “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).” 7d.
Although the Court ultimately determined that AEDPA did
not apply because the court of appeals acted sua sponte,
Calderon makes clear that any motion, pleading or other
filing that seeks to relitigate old claims, or present new claims
after a first federal habeas application already has been
adjudicated, is subject to the requirements of Section 2244(b)
regardless of the label adopted by the petitioner.
3. This Court’s decisions in Slack vy. McDaniel, 529 US.
473 (2000), and Stewart v. Martinez-Villareal, 523 U.S. 637
(1998), bolster the conclusion that any effort in federal court
to attack collaterally a prisoner’s conviction constitutes a
“second or successive application” where the prisoner has
already had one complete round of federal habeas review. In
those cases, because the federal district court dismissed a
federal habeas petition without prejudice to allow exhaustion
or further development of claims in State court, there was
never a first adjudication of the federal habeas claims.
Indeed, those decisions “contemplated that the prisoner could
return to federal court after the requisite exhaustion.” Slack,
529 U.S. at 486; Stewart, 523 U.S. at 644. It follows that
where, by contrast, a federal district court has already
adjudicated a petitioner’s initial habeas petition, the prisoner’s
subsequent effort to overturn his conviction, whether direct or
indirect, and regardless of how it is labeled, constitutes a
second or successive petition that must satisfy the
requirements of Section 2244(b).
4. This principle is dispositive here. It is undisputed that
the petitioner is seeking to overturn his State criminal
15
judgment through the vehicle of his Rule 60(b) motion.
Specifically, petitioner seeks to overturn the district court’s
prior determination that his “prosecutorial misconduct”
claims were procedurally defaulted, so that he can then have
those claims addressed “on the merits” For reasons
explained above, the fact that he is not immediately seeking
to have those claims resolved on the substantive merits does
not diminish the fact that he is using a federal procedural
device to attack collaterally the State court judgment against
him. Thus, his 60(b) motion clearly constitutes an
“application” for federal habeas relief.
Petitioner's Rule 60(b) motion also constitutes a “second or
successive” application within the meaning of Section
2244(b) because he has already received one complete
adjudication of a request for federal habeas relief. That
adjudication did not reach the substantive merits of certain of
petitioner's prosecutorial misconduct claims, but only
because the district court found that petitioner had
procedurally defaulted them. There can be no serious
question that a determination of procedural default constitutes
an “adjudication” of a federal habeas claim. As this Court
explained in McCleskey v. Zant, 499 U.S. 467 (1991), “[t}he
prohibition against adjudication in federal habeas corpus of
claims defaulted in state court is similar in purpose and design
to the abuse-of-the-writ doctrine, which in general prohibits
subsequent habeas consideration of claims not raised, and
thus defaulted, in the first federal habeas proceeding.” /d at
490. Similarly, Coleman v. Thompson, 501 U.S. 722 (1991)
held that, “in all cases in which a state prisoner has defaulted
his federal claims in state court . . . federal habeas review of
the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law.” /d. at 750.
In short, petitioner has already received one full
adjudication of a federal habeas application. The decision
petitioner received from the district court on his earlier habeas
16
application concluded that his properly preserved
prosecutorial misconduct claims did not entitle him to relief
and the remainder were procedurally defaulted. There can
thus be no question that the district court’s decision was an
adjudication that makes his subsequent Rule 60(b) motion a
“second or successive” application within the meaning of the
statute. A contrary conclusion in this case would effectively
allow any habeas petitioner to avoid the statutory restriction
simply by calling his request for relief from a State court
conviction a Rule 60(b) motion rather than an application for
habeas corpus.
B. A Rule 60(b) Motion Seeking A _ Second
Adjudication Of A Request For Federal Habeas
Relief Predicated On A Change In The Law Or
New Facts Constitutes A “Second Or Successive
Application” Subject To The Limitations Of
Section 2244(b).
At a minimum, a Rule 60(b) motion based on new law or
facts as to the underlying State court adjudication should be
considered a second or successive petition subject to the
limitations of Section 2244(b).
1. As noted above, Section 2244(b)(2)(A) permits review,
in a second or successive application, of new claims based
upon intervening developments of federal constitutional law
to which this Court has given retroactive application. These
intervening developments have been determined by Congress
to permit a federal habeas petitioner to raise a new claim in a
second or successive habeas application. Under the principle
of expressio unius, exclusio alterius, Congress’s recognition
of certain legal developments as warranting consideration in a
second or successive application presupposes that other legal
developments—including those based on changes or
clarifications of State law—do not merit similar treatment.
See, e.g., O'Melveny & Myers v. FDIC, 512 U.S. 79, 86-87
(1994) (Congress’s creation of special federal rules to govern
various issues in connection with litigation against those
17
associated with failed S&Ls was a clear indication that
Congress did not intend a federal rule with respect to other
matters arising in that litigation).
Indeed, it would make no sense to allow claims that
Congress expressly permitted to be considered in a second or
successive petition to be treated equally to those Congress
that omitted. For example, Congress’s determination that
only claims based upon new rules of constitutional law
recognized and made retroactive by this Court can be
considered in a second or successive habeas petition would be
undermined if a habeas petitioner could use a Rule 60(b)
motion to seek habeas relief based on a new rule this Court
determined would not merit retroactive application on
collateral review. The same is true of, for example, a “new
rule of constitutional law” recognized by an intermediate
State appellate court, but not by this Court.
Similarly, Section 2244(b)(2)(B) carves out a category of
factual claims—newly discovered facts bearing on actual
innocence—of sufficient magnitude to be permitted late entry
into a federal habeas court even though they were not raised
in the initial application Here as well, Congress’s
recognition of certain factual claims as warranting belated
consideration presupposes that other post-decision factual
claims do not merit similar treatment. And it would make no
.sense for factual developments that Congress believed to
warrant a second bite at the federal habeas corpus apple be
treated equally with other factual developments that Congress
did not believe required similar treatment.
For all these reasons, a Rule 60(b) motion for relief from
judgment based on an intervening State law development
cannot be permitted to evade Congress’s determination that
such legal developments do not warrant a second adjudication
of a federal habeas petitioner’s challenge to a State court
judgment.
18
2. Here, it is undisputed that petitioner's Rule 60(b) motion
seeks relief based on a recent legal development with respect
to a State court rule of appellate procedure. This State law
development plainly is not “a new rule of constitutional
law .. . by the Supreme Court.” It is, rather, a procedural rule
newly promulgated by the Tennessee Supreme Court. Indeed,
according to petitioner’s characterization, it is not even a
“new rule” at all, but rather a “clarification” of an existing
rule. Pet. Br. 6, 35. But there is no disputing that the
promulgation of Rule 39 is the “new” legal development on
which petiuoner’s Rule 60(b) motion rests.
In short, the petitioner’s Rule 60(b) motion seeks to attack
collaterally the petitioner’s State criminal judgment, it must
be treated as an “application” for habeas relief under the
statute. And because that motion seeks relief based on a type
of legal development that is not contemplated by the statute, it
must be treated as a “second or successive” application and
therefore governed by the restrictions in Section 2244(b). To
hold otherwise would not only contravene AEDPA’s
language and history, it would undermine Congress’s
carefully crafted restrictions on multiple habeas applic tions.
Il. EVEN IF NOT CONSIDERED A_ HABEAS
APPLICATION, PETITIONER’S RULE 60(b)
MOTION MUST BE DENIED, BOTH BECAUSE IT
IS LEGALLY FUTILE AND BECAUSE GRANTING
RULE 60(b) RELIEF WOULD CONTRAVENE THE
POLICIES UNDERLYING AEDPA.
Even if this Court were to hold that petitioner’s Rule 60(b)
motion was not a second or successive application, the Sixth
Circuit’s judgment should be affirmed because granting
petitioner's Rule 60(b) motion would have been a clear abuse
of discretion. That is because (i) petitioner’s application is
futile as a matter of law under other provisions of AEDPA
and this Court’s decision in O'Sullivan, and (ii) granting the
motion would contravene the policies underlying AEDPA.
19
A. Petitioner’s Motion Is Futile Because, Under
AEDPA And This Court’s Decision In
O’Sullivan, New State Court Rules Or Declar-
ations That Do Not Affect The Availability Of A
State Court Procedure Have No Bearing On
Whether A Ciaim Has Properly Been Exhausted
For Purposes Of Federal Habeas Law.
The heart of petitioner’s Rule 60(b) motion is that the
promulgation of Tennessee’s Rule 39 is a sufficient basis for
reopening the district court’s earlier finding of procedural
default. And the largely unexamined premise of that
argument is that, if the procedural default question were to be
answered anew, Rule 39 might produce a different outcome.
This premise should be assessed with care because, upon
closer examination, it is clear that this argument is contrary to
the reasoning in O'Sullivan and, if accepted, would have a
potentially broad impact nationwide. Indeed, a number of
States now have rules or policies similar to Rule 39,° and
> In addition to Tennessee, courts in at least four States have indicated
that although State discretionary review is available, it need not be utilized
for a prisoner to be deemed to have exhausted State court remedies. See
State vy. Sandon, 777 P.2d 220, 221 (Ariz. 1989) (concluding that
defendants need not petition for discretionary review before Anzona
Supreme Court to exhaust State remedies); Ark. Sup. Ct. R. 1-2(h) (stating
that, in criminal appeals or post-conviction relief matters, “appellant shall
not be required to petition for . . . review in the Supreme Court following
an adverse decision of the Court of Appeals in order to be deemed to have
exhausted all available state remedies respecting a claim of error”); /n re:
Exhaustion of State Remedies in Criminal and Post-Conviction Relief
Cases, No. 218 Judicial Administration Docket No 1, (Pa. May 9, 2000)
(per curiam) (declaring “that in all appeals from criminal convictions or
post-conviction relief matters, a litigant shail not be required to petition
for rehearing or allowance of appeal following an adverse decision by the
Superior Court in order to be deemed to have exhausted all available state
remedies respecting a claim of error”), State v. McKennedy, 559 S.E.2d
850, 854 (S.C. 2002) (holding that in criminal and post-conviction
appeals, “petitions for . . . certiorari following an adverse Court of
ee
20
other State supreme courts could well adopt such rules in the
future. As shown below, State court rules such as
Tennessee’s Rule 39 are irrelevant to the questions of
exhaustion and procedural default as a matter of federal law
when they do not affect the “availability” of discretionary
appellate review under State law.
1. There can be no serious question that the district court’s
original finding of procedural default was correct at the time
it was made. Indeed, this Court’s subsequent decision in
O'Sullivan v. Boerkel, 526 U.S. 838 (1999), confirms this
conclusion.
In O'Sullivan, this Court addressed the question of
“whether a prisoner must seek review in a state court of last
resort when that court has discretionary control over its
docket” in order “to satisfy the federal exhaustion
requirement.” /d. at 843. The Court began its analysis by
examining the statutory language of the exhaustion
requirement: “Section 2254(c) provides that a habeas
petitioner ‘shall not be deemed to have exhausted the
remedies available in the court of the State... if he has the
right under the law of the State to raise, by any available
procedure, the question presented.” Jd at 844 (omission in
original). Interpreting this language, the O'Sullivan Court
held that a prisoner properly exhausts his claims when he
resorts to the normal measures that constitute “one complete
round of the State’s established appellate review process.” /d
at 845. Thus, where State procedure gives prisoners “‘the
right . . . to raise’ their claims through a petition for
discretionary review in the State’s highest court,” the prisoner
must include claims in such a petition before presenting them
in a federal habeas proceeding. /d. (omission in original).
Under O'Sullivan, petitioner plainly failed to exhaust his
claims of prosecutorial misconduct. During State post-
Appeals’ decision are not required in order to exhaust all available state
remedies”).
21
conviction relief proceedings, petitioner did present those
claims to the State trial court and court of criminal appeals.
The courts both rejected his claims. Petitioner then had a
right to seek review of those claims in the Tennessee Supreme
Court. Petitioner, however, abandoned many (but not all) of
his prosecutorial misconduct claims when he petitioned that
court for review. J.A. 36. Under O'Sullivan, therefore, the
federal district court was correct in concluding that
petitioner’s claims were procedurally defaulted because he
did not exhaust them in State court.
2. Tennessee Rule 39 does not affect this conclusion.* As
noted above, O ‘Sullivan was predicated upon the language of
28 US.C. § 2254(c), which states that a habeas “applicant
shall not be deemed to have exhausted the remedies available
in the courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any
available procedure, the question presented.” /d. (emphasis
added). The O'Sullivan Court held that federal habeas
petitioners must properly exhaust their claims by applying for
discretionary State high court relief where such relief is a
normal part of the appellate process. See 526 US. at 845
(noting discretionary review was part of “Illinois’ established,
* That provision, which was adopted three years after the district court
concluded that petitioner procedurally defaulted the prosecutorial
musconduct claims he raises here, states:
“In all appeals from criminal convictions on post-conviction relief
matters from and after July 1, 1967, a litigant shall not be required to
petition for rehearing or to file an application for permission to appeal
to the Supreme Court of Tennessee following an adverse decision of
the Court of Criminal Appeals in order to be deemed to have
exhausted all available state remedies respecting a claim of error
On automatic review of capital cases by the Supreme Court pursuant
to Tennessee Code Annotated, § 39-13-206, a claim presented to the
Court of Criminal Appeals shall be considered exhausted even when
such claim is not renewed in the Supreme Court on automatic
J.A. 278-79.
|
—————_ ee
22
normal appellate review procedure” and was “a normal,
simple, and established part of the State’s appellate review
process” (emphasis added)). Thus, this Court ruled that “any
available procedure” in Section 2254(c) means any remedy
that is part of the normal appellate process and that the
normal appellate process includes _ petitioning _ for
discretionary appellate review when available /d. at 844-47.
In so holding, this Court expressly rejected the argument
that requiring discretionary review for exhaustion purposes
may have the unwanted consequence of encouraging petitions
to State supreme courts for discretionary review. See id at
845-47. The Court acknowledged that a requirement that
prisoners present claims in petitions for discretionary
appellate relief “has the potential to increase the number of
filings in state supreme courts,” and “that this increased
burden may be unwelcome in some state courts because the
courts do not wish to have the opportunity to review
constitutional claims before those claims are presented to a
federal habeas court.” /d at 847. Nonetheless, the Court held
that a prisoner, to properly exhaust a claim and avoid
procedural default, must still present that claim in all normal
State appellate proceedings:
Section 2254(c) ... directs federal courts to consider
whether a habeas petitioner has “the right under the law
of the State to raise, by any available procedure,” the
question presented.... The exhaustion doctrine, in
other words, turns on an inquiry into what procedures
are “available” under State law.
Id. at 847-48. Thus, as long as a procedural remedy such as
discretionary review remains available, the federal statutory
exhaustion provision requires that a habeas petitioner avail
himself of that remedy before bringing his claims in federal
court
In response to O'Sullivan, the Tennessee Supreme Court
did not alter its procedures for seeking discretionary review.
23
The Tennessee Supreme Court left Rule | |—which provides
the standards governing the grant of discretionary review—
unchanged. Indeed, the advisory committee for the
Tennessee Rules explained that (i) “The Tennessee Supreme
Court adopted Rule 39 in response to O'Sullivan v. Boerckel,
526 US 838 (1999),” but (ii) “Rule 39, Rules of the
Tennessee Supreme Court, ... works no change to
Tenn.R App P. 11 itself.” Tenn. R. App. Proc. 11, 1999 Ad.
Comm’n Cmt. (emphasis added); see Tenn. R. App. P. 11(a).°
Instead of making relief unavailable, as both Section
2254(c) and O ‘Sullivan require, the Tennessee Supreme Court
in Rule 39 simply declared exhausted all claims that were not
presented for discretionary review The Tennessee Supreme
> Tennessee's procedures governing the availability of discretionary
review are virtually identical to those of Illinois, which were at issue in
O'Sullivan See 526 US. at 843 (explaining that appeals from the
intermediate appellate court are granted as “‘a matter of sound judicial
discretion’” and setting forth similar factors that “‘indicate the character”
of those considered in exercising discretion) Nor is discretionary review
of claims presented in a Rule 11 petition only “occasionally employed” in
“truly extraordinary cases.” /d at 850 (Souter, J, concurring). Recent
Statistics indicate that approximately 7% to 10% of requests for
discretionary review are granted by the Tennessee Supreme Court. See
Annual Report of the Tennessee Judiciary, Statewide Appellate and State
Trial Court Statistics, FY 1999-2000, at 9 (2000) (reporting that review
was granted in 83 cases and denied in 714 cases (10 4% granted)), Annual
Report of the Tennessee Judiciary, Statewide Appellate and State Trial
Court Statistics, FY 2000-01, at 39 (2001) (reporting that review was
granted in 69 cases and denied in 878 cases (7.3% granted)). Thus,
discretionary review before the Tennessee Supreme Court appears to be
even more “available” than such review was before the Illinois Supreme
Court at the time this Court decided O ‘Sullivan. See Resp. Br. at *6 1.2,
O'Sullivan v. Boerckel, No. 97-2048 (U.S. filed Jan. 28, 1999), available
at 1999 WL 61669 (noting that the Illinois Supreme Court grants review
in approximately 3% of cases), Tr. Oral Arg. at *25, O Sullivan, 97-2048
(U.S. argued Mar. 30, 1999), available at 1999 WL 200680 (same).
ee EEE eevrvVvcr_cvcvcvcrere.
24
Court’s adoption of Rule 39 cannot change the requirements
of federal law as construed by this Court in O 'Sullivan °
B. Reopening The District Court’s Prior Conclusion
Of Procedural Default Would Contravene The
Policies Underlying AEDPA And This Court’s
Habeas Jurisprudence.
Even if petitioner's Rule 60(b) motion were not futile as a
matter of law under Section 2254(c) and O ‘Sullivan, granting
that motion would be a plain abuse of discretion because it
would contravene the policies underlying both AEDPA and
this Court’s habeas jurisprudence. In the closely analogous
context presented in Calderon, this Court directed that a
district court’s discretion to reopen habeas proceedings must
be exercised “in a manner consistent with the objects of
[AEDPAj” and “must be guided by the general principles
underlying [this Court’s] habeas corpus jurisprudence.” 523
U.S. at 554. Indeed, in Calderon, although this Court
concluded that AEDPA did not apply directly to a court of
appeals’ decision to recall its mandate sua sponte, the Court
concluded that AEDPA’s provisions and underlying policies
* In fact, Rule 39 goes well beyond an attempt, in effect, to overturn
O'Sullivan, which dealt with the availability of remedies subject to
discretionary review. It also runs contrary to the broader exhaustion
requirement first announced in Ex parte Royal, 117 US. 241 (1886),
which also requires a defendant to exhaust any claims he may have
through remedies available as a matter of right on direct review in the
State court system. Rule 39's pronouncement of exhaustion is not
restricted to claims that were not presented for discretionary review. Rule
39 also deems exhausted claums that a criminal defendant has an absolute
nght to have reviewed on the merits by the Tennessee Supreme Court
According to Rule 39, “{o}n automatic [direct] review of capital cases by
the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a
claim presented to the Court of Criminal Appeals shall be considered
exhausted even when such claim is not renewed in the Supreme Court on
automatic review.” JA. 279. None of the opinions in O ‘Sullivan supports
the view that Rule 39 may declare exhausted, as a matter of federal law,
claims which a habeas petitioner never challenged on direct review which
1s available as a matter of nght.
jr analial ~
— <
25
““certainly inform [this Court’s] consideration’ of whether the
Court of Appeals abused its discretion.” /d at 558 (quoting
Felker v. Turpin, 518 U.S. 651, 663 (1996)).
Elsewhere, this Court has noted that the limitations
imposed upon federal habeas proceedings reflect a proper
respect for the interests of “comity, finality and federalism.”
Williams v. Taylor, 529 US. 420, 436 (2000). As shown
below, granting a motion such as petitioner's Rule 60(b)
application would contravene these interests, as well as
Congress’s specific judgments as to the circumstances in
which new legal developments and newly discovered facts
may be a basis for a second collateral attack on a State
criminal judgment.
_ There can be no doubt that granting the kind of relief
oattin seeks under the guise of Rule 60(b) would
undermine “the respect that federal courts owe the States and
the States’ procedural rules.” Coleman, 501 U.S. at 726. As
this Court has noted, as a general matter, “[flederal habeas
review of state convictions frustrates both the States’
sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.” Calderon, 523 US.
at 555-56 (internal quotations omitted). Accordingly, this
Court has explained that the federal habeas power must be
invoked sparingly to “preserve the federal balance” and to
give a proper respect “both the States’ sovereign power to
punish offenders and their good-faith attempts to honor
constitutional rights.” /d (internal quotation omitted).
Concerns regarding “comity,” moreover, are not “limited to
the judicial branch of a state government.” /d at 552.
Federal habeas courts must not unduly “frustrate the interests
of a State _ in enforcing a final judgment” by unduly
interfering with the State’s legislative and executive branches.
Id
Here, in furtherance of comity, Congress has already given
States a means to waive the exhaustion requirement.
26
Specifically, Congress provided that States may waive an
exhaustion defense at the option of their executive officials
appearing in court’ “A State shall not be deemed to have
waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through
counsel, expressly waives the requirement.” 28 USC
§ 2254(b)(3). This express congressional allocation of the
waiver power should not be supplanted by a new rule
effectively permitting State supreme courts to engage,
intentionally or not, in wholesale waiver of the federal
requirement that habeas petitioners exhaust all “available”
State court remedies.
2. As this Court has noted, the exhaustion doctrine is also
informed by federalism concerns. Williams, 529 US. at 436
In Section 2254(c), Congress has provided a rule of law that,
in its judgment, strikes the proper federal-State balance. As
~ ~exptamed above, that rule provides that a habeas petitioner
must exhaust all remedies normally “available” in State court.
28 USC. § 2254(c).
This rule not only embodies a judgment that State prisoners
should respect State court error-correction processes, but it
also helps ensure that State courts have a full opportunity to
confront all claims of federal constitutional error in their
criminal trials before the scarce resources of the federal
judiciary are called upon to correct any remaining error.
Allowing petitioner, or others like him, to reopen prior
findings of procedura! default on the basis of provisions such
as Rule 39-would disserve these policies.
3. Except in unusual circumstances, moreover, successive
collateral attacks on State criminal judgments undermine the
federal courts’ “enduring respect for the State’s interest in the
finality of convictions that have survived direct review within
the state court system.” (Calderon, 523 US. at 555 (internal
quotation omitted) Finality “is essential to both the
retributive and the deterrent functions of criminal law,” id.,
for “[nJeither innocence nor just punishment can be
27
vindicated until the final judgment is known.” McCleskey,
499 US. at 491. Moreover, “[w]ithout finality, the criminal
law is deprived of much of its deterrent effect.” Jeague, 489
US. at 309.
Obviously, granting petitioner’s Rule 60(b) motion would
undermine the finality of his own criminal judgment It
would also cast doubt on the finality of many other State
criminal convictions around the country. Indeed, if this Court
were to adopt petitioner’s position, the Illinois Supreme Court
would be free to make a pronouncement similar to that in
Rule 39 and thereby permit the habeas petitioner in
O'Sullivan to file a Rule 60(b) motion for the very relief that
this Court previously denied. Such a revival of stale claims in
-Rule 60(b) motions threatens to overwhelm the resources, not
only of the lower federal courts, but also the State attorneys
who would have to oppose those motions.’
4. In this case, moreover, granting petitioner’s Rule 60(b)
motion would effectively allow the petitioner to flout
Congress’s judgment that, once a prisoner has had one full
’ Even if this Court were to permit Tennessee Supreme Court Rule 39
to control the federal exhaustion inquiry in cases arising from Tennessee,
Rule 39 should be given only prospective effect. First, the Tennessee
Supreme Court lacks any interest in the retroactive application of Rule 39.
As that court explained, Rule 39 seeks to discourage the “routin{e]
petition{ing] .. . for permission to appeal _. . in order to exhaust all
available state remedies for purposes of federal habeas corpus litigation.”
J.A. 278. Rule 39, however, advances this interest only insofar as it
Second, retrospective application of Rule 39 could have grave
consequences for the States and the federal distnct courts. Such a ruling
would permit all habeas claims since 1967 that were held procedurally
defaulted for failure to exhaust in a petition for discretionary review to be
the subject of Rule 60(b) motions for reconsideration based on any post-
1967 legal development. The effects would be particularly acute in States
such as South Carolina and Arizona, whose supreme courts have taken
positions similar i that of Tennessee, see O ‘Sullivan, 526 US. at 847,
and all other States whose supreme courts may opine similarly in the
future. See, supra, n.3.
28
adjudication of a habeas application, the only legal
developments that can provide a basis for relief from the State
criminal judgment are new rules of constitutional law adopted
(and made retroactive) by this Court. Here, as noted above,
Seciion 2244(b) specifies that the only change in law that
might permit a petitioner a second adjudication of a request
for federal habeas relief is “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” 28 U.S.C.
§ 2244(b)(2)(A). Yet here, the only purported change in the
law was the Tennessee Supreme Court’s adoption of a Ru!<
39, a procedural provision that petitioner contends “clarified”
existing Tennessee procedural law. Pet. Br. 9. Under
Calderon, adoption of Rule 39 is not an appropriate basis for
granting petitioner's Rule 60(b) motion because it plainly is
not a pronouncement by this Court of “a new rule of
_ constitutional law.” ,
s**t ee &
In sum, to grant a Rule 60(b) motion on the basis of Rule
39 would be both futile under Section 2254(c) and contrary to
the purposes underlying AEDPA and this Court’s habeas
jurisprudence. Granting such a motion would, therefore, be a
plain abuse of discretion. The iudgment below can be
affirmed on that ground even if the Court were to conclude
that petitioner’s Rule 60(b) motion does not constitute a
“second or successive application” within the meaning of
Section 2244(b).
a
29
CONCLUSION
For these reasons and those in respondent’s brief, the
judgment of the Sixth Circuit should be affirmed.
Respectfully submitted,
BILL PRYOR
ATTORNEY GENERAL
NATHAN A. FORRESTER
SOLICITOR GENERAL
OFFICE OF THE ATTORNEY
GENERAL
STATE OF ALABAMA
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JANET NAPOLITANO
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BILL LOCKER
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CARTER G. PHILLIPS
GENE C. SCHAERR*
PAUL J. ZIDLICKY
STEVEN T. COTTREAU
REBECCA K. WOOD
SIDLEY AUSTIN BROWN
& WOOD LLP
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KEN SALAZAR
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MASSACHUSETTS
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EE
MIKE MCGRATH
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nt of Justice
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JOHN CORNYN MARK L. SHURTLEFF
ATTORNEY GENERAL ATTORNEY GENERAL
STATE OF TEXAS STATE OF UTAH
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JERRY W. KILGORE CHRISTINE O. GREGOIRE
ATTORNEY GENERAL ATTORNEY GENERAL
COMMONWEALTH OF STATE OF WASHINGTON
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DARRELL V. MCGRAW, JR.
ATTORNEY GENERAL
STATE OF WEST VIRGINIA
State Capitol, Room 26-E
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Counsel for Amici Curiae
September 12, 2002 *Counsel of Record
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