Opposition Brief — Gonzalez v. Crosby
Supreme Court brief2005
Ask Donna
What actually matters in this document.
Text
) ORIGINAL /;) —===— _ )
oo LOFRCE OFTHE | Zz QUESTION PRESENTED (restated)
IN THE L Whether the United States Court of Appeals for the Eleventh Circuit properly
REME COURT OF THE UNITED STATES
determined that under certain circumstances an attempt to reopen a federal habeas petition finally
CF AURELIO O. GONZALEZ, decided on the merits constitutes a successive petition and is subject to the requirements of 28 U.S.C.
NG Petitioner, § 2244(b)?
vs.
JAMES V. CROSBY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
RESPONDENT’S BRIEF IN OPPOSITION TO PETITION
(850) 414-3579
(850) 487-0997 (fax) ; 7 ee
' As discussed infra, at 7 and n.9, petitioner’s second question presented is not properly raised
A
TABLE OF CONTENTS
IED... so wsduccuecuoeebuduadeuesssapeededacencuckoucen i
CEE nadknvivach casechtddee beside ceuedesenettiadmbedetaumies il
IE i.ccncdesietenssedsusucsececsdaanudeie trades iidsawumaends ill
ET duc lscubicdcubardvekaseudeGcese seamen ul baenasseewiabel conse u |
EL . ccdnces goeaneheGuwanuelunsiedundanbeules tbenedinkena |
eS .. . neubweedeecadesscube cbsuibsstdicecavswes 2
is ae eee pei die teen ceLodaededak ateubadl 2
CEE iccnscengcdcageedeneaseeedsbctssusesaldenndeksanntn 8
TE nteves ddnhdnddevcceaudonVaiadeh nienwtdedeedasdednesiavecavedaidas 26
'
TABLE OF AUTHORITIES
Pages
Cases
Abdur’Rahman v. Bell, 535 U.S. 1016 (2002) .............ccccececeeeveececeeceecs 25
Abdur’Rahman v. Bell, 537 U.S. 88 (2002) 2.0.2.2... ccceceeeecececeecececeuuuues 18
Ackermann v. United States, 340 U.S. 193 (1950) ...... 00... cece ccceseuuveeeeveees 20
Allen v. Mitchell, 276 F.3d 183 (4th Cir. 2001) ............ccccccccececeuuueuuueees 21
Artuz v. Bennett, 531 U.S. 4 (2000) .....0. 0.0... ccee eee eee eee 4, 19 and n.17, 20, 21, 22
Banes v. Moore, 532 U.S. 1005 (2001) (Mem.) .. 2.0.00... ccccccccccccuuucececeeees 20
Bates v. Whitley, 19 F.3d 1066 (Sth Cir. 1994) 20.0... occ cc cccccccccuveveeeeeeees 14
Blackmon v. Armontrout, 2003 U.S. App. LEXIS 4332 (8th Cir. Mar. 12, 2003)
(unpublished), cert. denied, 124 S.Ct. 120 (2003)... ..cccceeeecececuveeees 9
Blackmon v. Money, 27 Fed. Appx. 543 (6th Cir. Dec. 10, 2001) (unpublished) .......... 22
Blair v. Armontrout, 976 F.2d 1130 (8th Cir. 1992), cert. denied,
EGE TOE DONA LS IIE COPTER OTE 10 n.10
Boufford v. Moore, 532 U.S. 1050 (2001) (Mem.) ... 00... cece cece cc ccceceeceeeees 20
Bonin v. Vasquez, 999 F.2d 425 (9th Cir. 1993)... cece ccc cece cccceeeeeeees 10 n.10
Bousley v. United States, 523 U.S.614 (1998)... 2... cece ccc ccccccccueececeeeeees 14
Boyd v. United States, 304 F.3d 813 (8th Cir. 2002), cert. denied, 538 U.S. 953 (2003) ..... 9
Brooks v. Walls, 301 F.3d 839 (7th Cir. 2002), cert. denied, 538 U.S. 1001 (2003) ........ 21
Brown v. Moore, 532 U.S. 968 (2001) (Mem.) .. 2.0.00... ccc ccceveeececsceuveeeees 20
Buell v. Anderson, 48 Fed. Appx. 491 (6th Cir. Sept. 24, 2002) (anpublished) ........... 24
Burris v. Parke, 130 F.3d 782 (7th Cir.), cert. denied, 522 U.S. 990(1997) ........... 11, 24
iii
Calderon v. Thompson, 523 U.S. 538 (1998) .........0scceceesevseeeees 13, 15 18, 23, 24
Carter v. United States, 150 F.3d 202 (2nd Cir. 1998) .........0ccccceceuceeeeseueees 14
Cohen v. Grant, 531 U.S. 988 (2000) (Mem.) .........0ccccceeceeceeseeceeueeneees 20
Conner v. Lemaster, 1999 U.S. App. LEXIS 2495 (10th Cir. Feb. 18, 1999)
CE cc ccccccscecdcccscvessevectscdeesesosedeenersesceseseens 22
Delancy v. Florida Department of Corrections, 246 F.3d 1328 (11th Cir. 2001) ......... 4, 20
Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002), cert. denied, 539 U.S. 962 (2003) .. 9, 12,24
Felker v. Turpin, 518 U.S. 651 (1996) .............ccceccceccecceececeecenceeaes 16
Felker v. Turpin, 101 F.3d 657 (11th Cir.), cert. denied, 519 U.S. 989 (1996) .........0:. 9
Freeman v. Page, 208 F.3d 572 (7th Cir.), cert. denied, 531 U.S. 946 (2000) ............. 22
Gant v. United States, 1993 U.S. App. LEXIS 26819 (7th Cir. Oct. 7, 1993)
(unpublished), cert. denied, 510 U.S. 1183 (1994) ...........ceseeceeeeuss 10 n.10
Gitten v. United States, 311 F.3d 529 (2nd Cir. 2002) ............0ceeccececeeeueeees 9
Gonzalez v. Crosby, 366 F.3d 1253 (11th Cir. 2004) (en banc) ............ 1, 6, 9, 12, 13, 24
Gonzalez v. Secretary for the Florida Dept. of Corrections, 317 F.3d 1308
(11th Cir. 2003), vacated and hearing en banc granted, 326 F.3d 1175
SGA MIIED o:, c-snnaktinnstsasckucietdenscicaearaakieni ce 5
Guerroero v. Terhune, 531 U.S. 988 (2000) (Mem.) ........cccceccceseeeeeeseestens 20
Guyton v. United States, 23 Fed. Appx. 539 (7th Cir. Sept. 26, 2001) (unpublished) .... 22-23
Hamilton v. Newland, 374 F.3d 822 (9th Cir. 2004) .........0..cccceseeseeeceseuees 18
Harris v, Nelson, 394 U.S. 286 (1969) ..........0cccecceeceeeceeseeeeees 14, 14-15, 15
Harris v. United States, 367 F.3d 74 (2nd Cir. 2004) ..........0.cceceeeeeseees 9,11, 12
Harvey v, Horan, 278 F.3d 370 (4th Cir. 2002) ........0..0.cceccesecesceeseeceeees 13
Hawkins v. Evans, 64 F.3d 543 (10th Cir. 1995) ............cccsccesceeccesseeseees 14
iv
}
i , CD . + i565 s ccc condesecnesececesonssesetee 20
Herandez v. Peirson, 2000 U.S. App. LEXIS 30179 (7th Cir. Nov. 22, 2000)
(unpublished), cert. denied, 532 U.S. 1068 (2001) ©... 6.6 ccc 22
ED no de oni one neseudheeeesadhesoeeee 3n3,5n.6
ee rn CD ococccccoccecsecceceseucetececees .. 14
Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995), cert. denied, 516 U.S. 1054 (1996) ....... 9n.10
In re Abdur’ Rahman, 2004 U.S. App. LEXIS 25609
(6th Cir. Dec. 13, 2004) (en banc) ......... 9, 9-10 n.10, 11 and n.12, 12, 14.15, 18
Ine: Cook, 215 F.3d 606 (6th Cir. 2000) .. 2.2... cece 13-14, 140.15
Israfil v. Russell, 276 F.3d 768 (6th Cir. 2001), cert. denied, 535 U.S. 1088 (2002) ........ 21
Johnson v. Wolfe, 41 Fed. Appx. 733 (6th Cir. Jun. 21, 2002) (unpublished) ............. 21
Kiel v. Scott, 1999 U.S. App. LEXIS 2500 (10th Cir. Feb. 18, 1999) (unpublished),
se ee heameneniacusenn 22
Lazo v. United States, 314 F.3d 571 (11th Cir.), vacated for rehearing en banc,
en «icc gcceedeeeteoeenentecseséuese 5 and n.7,6 2.8
Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir. 1989) 2.0.0.0. o cece cc cece eee e es 10 n.10
Lopez v. Douglas, 141 F.3d 974 (10th Cir), cert. denied,
En nein et ccna sgneneneeentesesctoes 9, 10, 11, 12, 13 and n.13
99 F.3d 1302 (6th Cir. 1996), cert. denied,
ee .-cpededeveccuseancecteseosesecenececescs 9-10 n.10, 10
Merritt v. Monroe, 326 F.3d 157 (3rd Cir.), cert. denied, 540 U.S. 921 (2003) ............ 21
Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002), vacated and heanng
en banc granted, 326 F.3d 1175 (11th Cir. 2003) ...............0... 5 and n.7,6n.8
Moreland v. Lazaroff, 531 U.S. 988 (2000) (Mem.) ... . . . ©. 6 6 cece e ewes 20
Morgan v. Money, 2000 U.S. App. LEXIS 1914 (6th Cir. Feb. 8, 2000)
dc ecenepesstnece 22
Vv
)
Muniz v. United States, 236 F.3d 122 (2nd Cir. 2001) ... 2... 17 n.16
Munoz v. United States, 331 F.3d 151 (ist Cir.), cert. denied, 124 S.Ct. 587 (2003) ........ 9
Ortiz v. Stewart, 195 F.3d 520 (9th Cir. 1999) 200 c ence e eu eues 9
Pace v. DiGuglielmo, 125 S.Ct. 26 (Sept. 28, 2004) (No. 03- Mui)... oo eee eee eee 21
Palmer v. Corcoran, 1999 U.S. App. LEXIS 23336 (4th Cir. Sept. 14, 1999)
ale oe eds 22
CC GEER ccccnceetanstecseuséucccescoscnnccesses 15, 24
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)... ce eens 14, 24
Boliten vw, United Staten, 364 U.S. 426 (19GD) .. 0... ccc cece cece cece cccccess 20
Pridgen v. Shannon, 380 F.3d 721 (3rd Cir. 2004), pet. for cert. filed (10/29/04)
ED i. «<- tales cunecencdenetdnnéeeeésaenuenesseunsunoessseenet 17
Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004) 2... ccc eee eee 12-13
Reinoso v. Artuz, 1999 U.S. Dist. LEXIS 7768 (S.D.N.Y. Apr. 14, 1999)
DED coseeccccescenenennssecsadoosceeeesesecdecedecsesccoeess 23
Rodriguez v. Mitchell, 252 F.3d 191 (2nd Cir. 2001)... 2... eee eee 11-12
Rodwell v. P.ge, 324 F.3d 66 (ist Cir.), cert. denied, 124 S.Ct. 224 (2003) ............ 9,11
_ Romaine v. Woods, 2000 U.S. App. LEXIS 18606 (9th Cir. Jul. 26, 2000)
DED Kduneccdvocsccesccdddededtescedecusocesancsuasséneneeten 22
Senden v. United Doatas, 373 U.S. 1 (IDES) ... 2... cence ccc ccc ccc ecccccccccees 16
Sargent v. Columbia Forest Prods., 75 F.3d 86 (2nd Cir. 1996) ...... 2.2... eee. 23,24
i eS PD cconcéecesecocecesseesenocesdsenesosesoosese 14
Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003) ..... 2... 6... eee ee. biicaOoneces 21
Slack v. McDaniel, 529 U.S. 473 (2000) .............. 10 n.10, 13 0.14, 16, 17 0.16, 18, 19
Stafford v. Thompson, 328 F.3d 1302 (11th Cir. 2003) .. 2.22. c eee 21
vi
Stewart v. Martinez-Villareal, 523 U.S. 637(1998) ............. 13 n.14, 16, 17 0.16, 18, 19
Tal v. Miller, 1999 U.S. Dist. LEXIS 652 (S.D.N.Y. Jan. 11, 1999) (unpublished)... 23
Thomas v. Roe, 23 Fed. Appx. 847 (9th Cir. Dec. 27, 2001) (unpublished) ............... 22
Thompson v. Calderon, 151 F.3d 918 (9th Cir.), cert. denied, 524 U.S. 965 (1998) ...... 9, 12
Tinker v. Hanks, 531 U.S. 987 (2000) (Mem.) .......0.0.0.cccccccceceececuceceeees 20
United States v. Bey, 2004 U.S. App. LEXIS 23915 (10th Cir. Nov. 16, 2004)
CRI ype Ribena ie ARRON Rae GL MI 12, 13 n.13
United States v. Edwards, 309 F.3d 110 (3rd Cir. 2002) 2.2.2.2... 0cccecececeuceseuees 9
United States v. MacDonald, 1998 U.S. App. LEXIS 22073 (4th Cir. Sept. 8, 1998)
PUMEINIET sisicasscicnennsemabandondineiddadutibaeimlaenidie) 12
United States v. Rich, 141 F.3d 550 (Sth Cir. 1998), cert. denied, 526 U.S. 1011 (1999) ..... 9
United States v. Winestock, 340 F.3d 200 (4th Cir.), cert. denied,
SI MIIIEN oclacnsastidd tonsadatsbetairasaddoaienvansidid 9, 12, 24
Wade v, Battle, 379 F.3d 1254 (11th Cir. 2004) 0.20.0... ccc cecececeecuceccucuees 21
Weatherspoon v. Moore, 531 U.S. 988 (2000) (Mem.) 0... 0... ccececeeeceeeeceeees 20
Webster v. Moore, 199 F.3d 1256 (11th Cir.), cert. denied, 531 U.S. 991 (2000) .......... 22
Weekley v. Moore, 531 U.S. 1063 (2001) (Mem.) ..........0ccccccccececececeeeuss 20
Williams v. Cain, 217 F.3d 303 (Sth Cir. 2000)... 2.0... e cc ccceceeeceeeueees 21-22
Williams v. Sims, 2004 U.S. App. LEXIS 24751 (7th Cir. Dec. 1, 2004) .............0.. 21
Williams v. Whitley, 994 F.2d 226 (Sth Cir.), cert. denied, 510 U.S. 1014(1993) ...... 9n.10
Wright v. Norris, 299 F.3d 926 (8th Cir. 2002) ...... 2.2... eee eee ee ce ceeceeecceeee 21
, vii
Statutes and Rules
PEED crccccccccdeccccosccccscectsésnseboeounséosacedoseeeseseees 1
ED ccccocccccccccccccecoscncecesececosseseesoonsceeceseevensoses 2
SOC EOEED cecccccccccccccccccecoseseses i, 1, 2, 8, 9, 11, 12, 13 and n.14, 16, 17
PPE EEE ccccccccccccceccsseccssececeesses 3, 15, 17 and n.16, 19, 20, 21, 22
SOU ED ccccccccccccccescccecceccoccdensenneusscesecosotoescesses 21
PEED oc cccsccccccccensccccecesccscccececcessoes 6 n.8, 8, 11 n.11, 14, 15, 20
- 2a piudanes otk bhdneaadndneeedale 6n8, 8, 11 n.11, 14, 16
United States Supreme Court Rule 10... 2... cece ee eee eee eeeeees 18, 25
Federal Rule of Appellate Procedure 4 .. 2... 2. cc cence eee e teen neces 4n6
Pes Rip et Sir Femme En. ccc ccccccccccccccccccccccccccesecoseses 15, 23-24
eT IOSD oc ccc cccccccccccccccccccccssescscvccccccceses 15
Federal Rule of Civil Procedure 33... 2. ccc eect e eee e eens eeees 15
Federal Rule of Civil Procedure 60(b) .. 2... 2... cc cece eee cece e ene eeees passim
Federal Rule of Civil Procedure 81(aX(2) ... 2... 6. ee cece eee eee eee en eees 15, 23-24
Rules Governing Section 2254 Cases, Rule 9b)... 1... 6. cece eee eee eeee 10 n.10
Rules Governing Section 2254 Cases,Rule ll ............. ocneesctbceoccosesee 15-16
Piette Gaprmmme Camda BGO 2. nc cccccccvccccccccccccccccccccccccesecscceces 2
vill
No. 04-6432
IN THE
SUPREME COURT OF THE UNITED STATES
AURELIO O. GONZALEZ,
Petitioner,
vs.
JAMES V. CROSBY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
RESPONDENT’S BRIEF IN OPPOSITION TO PETITION
OPINION BELOW
Petitioner, Aurelio 0. Gonzalez, seeks review of the April 26, 2004 en banc opinion of the
Unites States Court of Appeals for the Eleventh Circuit, holding, inter alia, that Gonzalez’s motion
for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure constituted
a successive petition for which petitioner had not obtained authorization to bring pursuant to 28
U.S.C. § 2244(b), reported at Gonzalez v. Crosby, 366 F.3d 1253 (11th 2004).
STATEMENT OF JURISDICTION
Petitioner seeks jurisdiction pursuant to 28 U.S.C. § 1254(1) and Part III of the Rules of the
United States Supreme Court. Petition, at 2. The State agrees that petitioner’s request for
discretionary review is from a case from a United States court of appeals following rendition of
judgment. As discussed below, however, the Eleventh Circuit did not address petitioner’s second
question presented and the issue is therefore not properly before this Court. See infra, at 7 and n.9.
CONSTITUTIONAL AND STATUTORY PROVISIONS
The State agrees that Rule 60(b) of the Federal Rules of Civil Procedure and 28 U.S.C. §
2244(b) are involved in the issue presented. Neither the Suspension Clause nor the Due Process
Clause to the United States Constitution, however, are implicated by the decision of the United
States Court of Appeals for the Eleventh Circuit. In addition, petitioner’s reference to 28 U.S.C. §
1291 in the argument portion of his petition, at 30, is not involved in the issue herein presented.
STATEMENT OF THE CASE AND FACTS’
Petitioner, Aurelio O. Gonzalez, was convicted of committing three counts of robbery with
a firearm, one count of armed burglary, and one count of armed kidnapping, upon his guilty pleas,
obtained in the Circuit Court of Dade County, Florida. See R1:1. The trial court sentenced
petitioner on December 8, 1982, to a term of ninety-nine (99) years imprisonment. Id. Petitioner’s
first state postconviction relief motion, R:1:5:Ex. C, brought pursuant to Florida Supreme Court Rule
3.850, was denied as “legally insufficient” on September 14, 1994. R:1:5:Ex. D. Petitioner filed a
successive motion for postconviction relief, R:1:5:Ex. I, outside the two-year state limitation period,
which was summarily denied. R:1:5:Ex. J.
Consistent with petitioner, Respondent's citation to the record on appeal includes voluine
number, district court document number, and, where applicable, page number. See Petition, at 5.
In addition, where applicable, citation will be made to the parties’ briefs filed in the court of appeals.
2
Petitioner filed his petition for writ of habeas corpus in the United States District Court of
Florida, Southern Division on June 23, 1997.’ R1:1. He raised one ground for relief, asserting that
newly discovered evidence rendered his guilty pleas invalid. The State, in its response to a show
cause order, asserted that the petition was time-barred and, in addition, the claim was procedurally
defaulted. R1:1:4-5. The district court permitted petitioner to amend his petition, R1:9, which was
filed on November 12, 1997. R1:10. In its response to the amended petition, the State reasserted
its earlier arguments. R1:12:3-4.
On July 16, 1998, the magistrate judge issued her “Report Re Dismissal §2254 Petition As
Time Barred,” recommending dismissal of the petition as having been filed outside of the one-year
limitation period under 28 U.S.C. § 2244(d). R1:13:3-4; see also R1:15. Petitioner filed objections
to the recommendation. R1:14. The magistrate judge subsequently issued a “Supplemental Report”
on August 17, 1998, again recommending dismissal of the petition as time-barred. R1:16:4. The
district court entered its “Order Of Dismissal of §2254 Petition As Time Barred” on September 9,
1998. R1:17.
On September 23, 1998, petitioner filed his notice of appeal from the denial of habeas corpus
relief, R1:20, and filed a motion for a certificate of appealability (“COA”). R1:22. In an Order dated
October 19, 1998, the district court granted COA without elaboration. R1:23. Petitioner’s appeal
was dismissed without prejudice on October 28, 1999 and the application for COA remanded “to the
> Arguably, petitioner’s original petition was filed on June 17, 1997, when he purportedly
placed the petition into the prison mail system. See Houston v. Lack, 487 U.S. 266, 275 (1988). The
copy of the petition received by Respondent reflects a “Filed” date of June 23, 1997, while petitioner
executed the petition on “June 17, 1997.” R1:1:6. The timeliness of the petition for writ of habeas
corpus did not turn upon which of the above dates the petition was deemed filed.
3
district court for determination of which issues merit appeal under the amended requirements of 28
U.S.C. § 2253(c).” R1:23:2.
Petitioner thereafter filed a new application for COA with the district court, R1:26, which
was denied on December 10, 1999. R1:27. Petitioner filed a new “Notice Of Appeal” on January
12, 2000, attempting to appeal the denial of COA. R1:28. The court of appeals treated the notice
of appeal as an application for COA and dismissed the appeal on April 6, 2000. Thereafter, under
the original appeal that had been dismissed without prejudice on October 28. 1999, petitioner
submitted to the Eleventh Circuit a “Petition For Rehearing,” on or about April 18, 2000, requesting
that the court of appeals reconsider the denial of COA in that first appeal. The petition was returned
to petitioner unfiled with a letter dated April 26, 2000.
Nearly sixteen months later, on August 2, 2001, petitioner filed his “Rule 60(b) Motion To
Amend Or Alter Judgement.” R1:33. In that motion, petitioner contended that the district court’s
order of dismissal should be vacated pursuant to Artuz v. Bennett, 531 U.S. 4 (2000) and Delancy
v. Florida Department of Corrections, 246 F.3d 1328 (11th Cir. 2001). R1:33:6.* The district court
denied the motion on March 5, 2002. R1:34.° Petitioner filed a “Notice Of Appeal” on April 9,
2002. R1:36.° The district court denied COA on May 14, 2002. R1:38.
“The State does not agree with petitioner’s characterization of his Rule 60(b) motion as
“establish[ing] that his original habeas corpus petition was erroneously dismissed as procedurally
barred.” See Petition, at 8. The State disputed this issue in the circuit court. En banc Brief of the
Respondent-Appellee, at 45-49. In any event, the merits of that issue are not properly before this
Court from the court of appeals’ decision.
*The district court believed that it was without jurisdiction to entertain the motion on the
basis that petitioner had already appealed to the Eleventh Circuit. R1:34.
Pursuant to F.R.A.P. 4(a)(1)(A), petitioner’s notice of appeal was due on April 4, 2002.
(continued...)
Subsequently, on August 15, 2002, a judge of the court of appeals granted petitioner a COA
on the following issue: “Whether the district court erred in dismissing appellant’s habeas corpus
petition, 28 U.S.C. § 2254, as barred by the one-year statute of limitations provision in the
Antiterrorism and Effective Death Penalty Act of 1996.” Following briefing by the parties, a panel
of the court of appeals issued its opinion on January 10, 2003, whereupon it ruled that “[t}he
certificate of appealability previously granted in this case is QUASHED AS IMPROVIDENTLY
GRANTED, and the appeal is DISMISSED.” Gonzalez v. Secretary for the Florida Dept. of
Corrections, 317 F.3d 1308, 1314 (11th Cir. 2003), vacated and hearing en banc granted, 326 F.3d
1175 (11th Cir. 2003).
On January 27, 2003, petitioner filed a “Motion To Reconsider, Vacate, Or Modify” before
the court of appeals. That motion was denied as moot, while that court, en banc, on April 1, 2003,
issued its order directing that the case be heard en banc, in conjunction with the cases of Lazo v.
United States, No. 02-12483, and Mobley ». Head, No. 02-14224.’ Gonzalez, 326 F.3d at 1176. The
parties in the three cases were directed to address the following issues:
°(...continued)
Because petitioner purportedly placed his notice of appeal into the prison mail system on April 2,
2002, R1:36, his notice, though not filed in the Gomiet court until April 9, 2002, would be deemed
timely. Houston, 487 U.S. at 267.
"See Lazo v. United States, 314 F.3d 571 (11th Cir.), vacated for rehearing en banc, 326 F.3d
1175 (11th Cir. 2003) and Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002), vacated and hearing en
banc granted, 326 F.3d 1175 (11th Cir. 2003) A petition for writ of certiorari has been filed in the
Mobley case, assigned case number 04-6914 before this Court.
5
1) Is a certificate of appealability required before an appeal may be taken
from the denial of a Rule 60(b) motion involving an order or judgment in a 28 U.S.C.
2255 *! proceeding?
2) If so, should one issue in this case?
3) What standards or rules should govern Rule 60(b) motions involving an
order or judgment in a 28 U.S.C. § 2255 proceeding, i.e., under what circumstances,
if any, should such a motion be granted?
4) Was it an abuse of discretion for the district court to deny the Rule 60(b) ~
motion in this case?
Subsequently, in a letter dated June 27, 2003, the court of appeals directed the parties to
address the following issues by supplemental en banc letter briefs:
I. “To what extent if any, and how, should the general principles
underlying habeas and section 2255 cases guide, and the provisions of AEDPA
inform, the decision of whether the grant of Rule 60(b) relief relating to a habeas or
section 2255 judgment is available, and if available, is an abuse of discretion?”; and
i. “By analogy to Calderon{ v. Thompson, 523 U.S. 538 (1998)], and for
the same or similar reasons, should this Court hold that, except in cases of actual
fraud on the federal court which issued the judgment denying the habeas corpus
petition or section 2255 motion, Rule 60(b) relief from judgment is available only ‘to
avoid a miscarriage of justice as defined by our habeas corpus jurisprudence.”
The Eleventh Circuit heard individual oral argument in the three cases, then issued a
consolidated opinion on April 26, 2004. Gonzalez, 366 F.3d 1253. Therein, the en banc court first
held that a habeas petitioner must obtain a certificate of appealability in order to appeal an order
denying a Rule 60(b) motion. Id. at 1263-1266. In respect to Gonzalez specifically, the court of
appeals thereafter determined that he was entitled to a certificate of appealability, id. at 1268, and
that his Rule 60(b)(6) motion constituted a successive petition, as he was “attacking the merits of
’Both Gonzalez and Mobley involved state prisoners that sought relief under 28 U.S.C. §
2254; Lazo pertained to a habeas petition filed by a federal prisoner under 28 U.S.C. § 2255.
6
4
that decision [denying his habeas petition}—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.” Id. at 1281.
Respondent does not dispute that petitioner’s contention in his first question presented was
raised and decided by the United States Court of Appeals for the Eleventh Circuit. Petitioner’s
second question presented, however, was not an issue that the court of appeals requested the parties
to address and was not discussed by that court in rendering its decision. Therefore, petitioner’s
second question should not be considered as properly raised in petitioner’s request for certiorari
review.”
*In the context of addressing the court of appeal’s question whether a certificate of
appealability should issue, petitioner argued the underlying merits of the issue raised in the Rule
60(b) motion, citing a procedural due process right to a first federal habeas petition. En banc Brief
of the Appellant, at 17-32. That issue was not before the Eleventh Circuit. In respect to the second
portion of petitioner’s second question presented, in addition to not being before or decided by the
court of appeals, petitioner did not present the argument now made before this Court. Instead,
petitioner only addressed the Suspension Clause in the context of his due process argument,
disavowing any relevance there. Id. at 27 n.5 (“Some would argue that the right to habeas corpus
derives, independent of statute, from the Suspension Clause of U.S. Const. Art. I, sec. 9, but that
argument is irrelevant to the right of procedural due process applicable here.”’).
:
REASONS FOR DENYING THE WRIT
I. The United States Court of Appeals for the Eleventh Circuit properly determined that
a Rule 60(b) motion seeking to reopen a final judgment decided on the merits in a
federal habeas proceeding, on the basis that the disposition of that habeas petition was
erroneous, constituted a successive petition subject to the requirements of 28 U.S.C. §
2244(b).
A. There is no significant split among the circuit courts of appeal.
Under subsection A of his first question presented, petitioner asserts that “the federal circuits
remain sharply divided on the availability of Fed. R. Civ. P. 60(b) motions to challenge the integrity
of final orders entered in habeas corpus proceedings.” Petition, at 9-10. To the contrary, by
overgeneralizing the issue before this Court, petitioner both r isstates the current status of the law
and fails to limit his discussion to the issue that the Eleventh Circuit decided in his case -- i.e.,
whether a Rule 60(b) motion could be used to reopen for reconsideration an issue upon which the
habeas petition was adjudicated to final disposition on the merits. Considered accordingly, certiorari
review is not warranted.
Rule 60(b) motions brought in the context of a petition for writ of habeas corpus under 28
U.S.C. § 2254 or § 2255 generally fall into one of three categories: those attempting to either
relitigate or raise new claims challenging the conviction and/or sentence, those alleging some
infirmity in the habeas proceedings, and those seeking review of a habeas denial upon a procedural
basis. The Eleventh Circuit’s Gonzalez opinion, individually addressing the distinct factual
situations presented by the individual habeas petitioners, illustrates this practice. Id. at 1268 (Lazo -
constitutional claim), 1282 (Mobley - alleged fraud on the district court), 1281-1282 (Gonzalez -
dismissal as untimely). Thus petitioner’s characterization of the court of appeals’ decision as a
“bright line holding,” Petition, at 12, is inaccurate.
The vast majority of Rule 60(b) motions in the context of a habeas proceeding seek to
relitigate previously raised or new claims attacking the judgment of conviction and/or sentence.
Under those circumstances, the circuit courts of appeal are in full agreement that a Rule 60(b) motion
in actuality is a successive petition subject to 28 U.S.C. § 2244(b). See, e.g., Munoz v. United
States, 331 F.3d 151 (1st Cir.), cert. denied, 124 S.Ct. 587 (2003); Rodwell v. Pepe, 324 F.3d 66,
70 (1st Cir.), cert. denied, 124 S.Ct. 224 (2003); Harris v. United States, 367 F.3d 74, 82 (2nd Cir.
2004); Gitten v. United States, 311 F.3d 529, 534 (2nd Cir. 2002); United States v. Edwards, 309
F.3d 110, 112-113 (3rd Cir. 2002); United States v. Winestock, 340 F.3d 200, 206 (4th Cir.), cert.
denied, 124 S.Ct. 496 (2003); United States v. Rich, 141 F.3d 550, 551 (Sth Cir. 1998), cert. denied,
526 U.S. 1011 (1999); In re Abdur’Rahman, 2004 U.S. App. LEXIS 25609 *17-18 (6th Cir. Dec.
13, 2004) (en banc); Dunlap v. Litscher, 301 F.3d 873, 875 (7th Cir. 2002), cert. denied, 539 U.S.
962 (2003); Blackmon v. Armontrout, 2003 U.S. App. LEXIS 4332 *1 (8th Cir. Mar. 12, 2003)
(unpublished), cert. denied, 124 S.Ct. 120 (2003); Boyd v. United States, 304 F.3d 813, 814 (8th Cir.
2002) (per curiam), cert. denied, 538 U.S. 953 (2003); Thompson v. Calderon, 151 F.3d 918, 921
(9th Cir.), cert. denied, 524 U.S. 965 (1998); Ortiz v. Stewart, 195 F.3d 520 (9th Cir. 1999) (per
curiam); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.) (per curiam), cert. denied, 525 U.S. 1024
(1998); Gonzalez, 366 F.3d at 1277; Felker v. Turpin, 101 F.3d 657, 660-662 (11th Cir.) (per
curiam), cert. denied, 519 U.S. 989 (1996)."°
‘Moreover, these decisions are consistent with those cases holding prior to the enactment
of the Anti-terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) that a Rule 60(b)
motion could not be used to avoid application of the abuse of the writ doctrine. See, e.g., Hunt v.
Nuth, 57 F.3d 1327, 1339.(4th Cir. 1995), cert. denied, 516 U.S. 1054 (1996); Williams v. Whitley,
994 F.2d 226, 230 n.2 (Sth Cir.), cert. denied, 510 U.S. 1014 (1993); McQueen v. Scroggy, 99 F.3d
1302, 1335 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997), overruled on other grounds, In re
(continued...)
In relation to the treatment of Rule 60(b) motions seeking review of the constitutionality of
the conviction and/or sentence, petitioner’s attempt to demonstrate a widespread split among the
circuits is superfluous. Petitioner erroneously characterizes the holdings of the Sixth and Tenth
Circuits as taking an “extreme position.” See Petition, at 13. According to petitioner, both
McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996) (pre-AEDPA), cert. denied, 520 U.S. 1257
(1997) and Lopez v. Douglas, 141 F.3d 974 (10th Cir.) (per curiam), cert. denied, 525 U.S. 1024
(1998) stand for the proposition “that regardless of the substance of the allegations, a Rule 60(b)
motion is always a second or successive habeas petition under AEDPA.” Petition, at 13. To the
contrary, both courts had before them Rule 60(b) motions challenging the underlying conviction and
determined that the abuse of the writ doctrine or AEDPA precluded consideration. McQueen, 99
F.3d at 1335; Lopez, 141 F.3d at 975, respectively. In McQueen, the Rule 60(b) motion “raised
broad allegations of constitutional violations. . . . [that were] never included in the initial petition.”
Id., 99 F.3d at 1335. In holding the motion to be a successive petition, the Sixth Circuit cited cases
similarly addressing the propriety of raising challenges to the judgment of conviction and/or sentence
in a Rule 60(b) motion. Id. Moreover, to the extent that McQueen could have been interpreted as
adopting an all-or-nothing approach -- i.e., that a Rule 60(b) motion is always successive and thus
subject to the abuse of the writ doctrine -- the Sixth Circuit has recently clarified its position,
'°(._.continued)
Abdur’Rahman, 2004 U.S. App. LEXIS 25609 *18; Gant v. United States, 1993 U.S. App. LEXIS
26819 *2-3 (7th Cir. Oct. 7, 1993) (unpublished), cert. denied, 510 U.S. 1183 (1994); Blair v.
Armontrout, 976 F.2d 1130, 1134 (8th Cir. 1992), cert. denied, 508 U.S. 916 (1993); Bonin v.
Vasquez, 999 F.2d 425, 428 (9th Cir. 1993); Lindsey v. Thigpen, 875 F.2d 1509, 1511-1512, 1515
(11th Cir. 1989). These pre-AEDPA decisions applied Rule 9(b) of the Rules Governing Section
2254 Cases (effective 1977), which incorporates the Court’s prior decisions on successive petitions
and abuse of the writ. Slack v. McDaniel, 529 U.S. 473, 486 (2000).
10
adopting a “functional approach.” In re Abdur’Rahmon, 2004 U.S. App. LEXIS 25609 *18."'
Similarly, the Rule 60(b) motion in Lopez sought reconsideration of a substantive claim raised in
the habeas petition, one of ineffective assistance of trial counsel, which has »een treated as a
successive petition by all the courts of appeal. In holding that § 2244(b) applied, the Tenth Circuit
cited to the Seventh Circuit’s opinion in Burris v. Parke, 130 F.3d 782 (7th Cir.), cert. denied, 522
U.S. 990 (1997). See Lopez, 141 F.3d at 975. Burris held that a motion to recall the mandate
seeking to relitigate a claim of ineffective assistance of counsel or to raise a new constitutional
challenge to the conviction must be treated as a successive petition. Id., 130 F.3d at 785. Thus it
simply is an overstatement to characterize the decisions of the Sixth and Tenth Circuits, as well as
the Eleventh Circuit, as holding that a Rule 60(b) motion is always a successive petition for purposes
of AEDPA.
Rule 60(b) motions are also brought to challenge the integrity of the judgment on a habeas
petition, alleging, for example, fraud upon the district court.'? Where the integrity of the judgment
is implicated, the circuit courts have indicated that a Rule 60(b) motion would be the proper vehicle
for raising the claim. See, e.g., Rodwell, 324 F.3d at 70; Harris, 367 F.3d at 82; Rodriguez v.
''The functional approach entails consideration of the factual allegations raised in the motion
and whether it falls within the parameters of Rule 60(b) generally. This approach, while recognizing
the distinction between claims raising constitutional issues brought in § 2254 and § 2255 petitions,
the integrity of the district court’s judgment, and final disposition on procedural grounds, ignores
the import of congressional intent in respect to federal habeas and the limits placed thereon and this
Court’s habeas jurisprudence. _
'2 As discussed infra, at 19, a decision interpreting a procedural rule subsequent to the denial
of habeas relief, where the earlier denial could be deemed erroneous upon retroactive application of
that new decision, does not implicate the integrity of those prior proceedings. But see In re
Abdur’Rahman, 2004 U.S. App. LEXIS 25609 *18. Review of the Sixth Circuit’s decision there,
however, reflects that that court gave no consideration to the distinction between a dismissal upon
a technical procedural ground and an adjudication on the merits resting upon a procedural basis.
11
Mitchell, 252 F.3d 191, 199 (2nd Cir. 2001); Winestock, 340 F.3d at 20; United States v.
MacDonald, 1998 U.S. App. LEXIS 22073 *8-9 (4th Cir. Sept. 8, 1998) (unpublished); Dunlap, 301
F.3d at 875; Inre Abdur’ Rahman, 2004 U.S. App. LEXIS 25609 *18; Thompson, 151 F.3d at 921
n.3; Gonzalez, 366 F.3d at 1278; but see United States v. Bey, 2004 U.S. App. LEXIS 23915 *8-9
(10th Cir. Nov. 16, 2004) (unpublished) (ruling without analysis that a Rule 60(b) motion alleging
fraud is subject to 28 U.S.C. § 2244(b), and citing circuit precedent, Lopez, 141 F.3d at 975, which
presented only the situation of a petitioner seeking to raise a constitutional challenge to his
conviction through a Rule 60(b) motion and holding that it was successive).
As to these type of claims, petitioner asserts that the opinion of the Second Circuit in Harris
y. United States, 367 F.3d 74 (2nd Cir. 2004) further “reinforced” the conflict among the circuits.
Petition, at 13. To the contrary, petitioner’s conclusion is based upon a misapprehension of the
Gonzalez opinion. As previously stated, supra, at 8, the court of appeals identified three distinct
types of claims raised in the Rule 60(b) motions filed by Lazo, Mobley, and Gonzalez. Just as the
Eleventh Circuit did with Mobley’s motion, the Second Circuit, relying upon circuit precedent,
recognized that an attack to the integrity of the habeas proceeding may be raised in a Rule 60(b)
motion while an attack to the conviction may be treated as a successive petition. Harris, 367 F.3d
at 82. The petitioner in Harris had claimed that his habeas counsel had been ineffective, id. at 76,
thus “arguably attack{ ing] the integrity of Harris’s habeas proceeding” so that the merits of the Rule
60(b) motion could be reached. Id. at 80; see also Reid v. Angelone, 369 F.3d 363, 375 (4th Cir.
2004) (propriety of refusal to permit withdrawal of habeas petition for exhaustion of state court
12
remedies subject to Rule 60(b) review). Viewed in respect to the characterization of the type of
claim raised, there is no meaningful conflict.'’
Turning to the last categorical basis for which a Rule 60(b) motion typically is filed in the
context of a federal habeas proceeding -- the case of a denial of the petition upon a procedural basis'*
-- the Eleventh Circuit in Gonzalez’s case held that based upon the passage of AEDPA, specifically
§ 2244(b), and the reasoning of Calderon v. Thompson, 523 U.S. 538 (1998), use of Rule 60(b) to
challenge a determination of untimeliness was precluded. Gonzalez, 366 F.3d at 1281-1282.
As with pre-AEDPA cases addressing Rule 60(b) motions raising challenges to the
conviction and/or sentence, Gonzalez is also consistent with both pre-AEDPA and post-AEDPA
cases holding that the denial or termination of a habeas petition on procedural default grounds is a
ruling on the merits for purposes of evaluating whether a subsequent pleading is a successive
petition. See, e.g., Harvey v. Horan, 278 F.3d 370, 379-380 (4th Cir. 2002); In re: Cook, 215 F.3d
"As previously observed, supra, at 12, while the Tenth Circuit held in an unpublished
opinion that a claim of fraud in a Rule 60(b) motion presents a successive petition, Bey, 2004 U.S.
App. LEXIS 23915 *8-9, that court cited circuit precedent, Lopez, 141 F.3d at 975, which had used
broad language in holding that a motion seeking reconsideration of a constitutional challenge to the
petitioner’s conviction was successive.
'* dismissal on procedural grounds, i.e., a resolution on a technical basis, presents a distinct
matter and does not raise the same interests in finality as an actual denial, i.e., final or merits
disposition of a habeas petition. The reason for this distinction is that while a technical procedural
defect can be remedied and anticipates subsequent litigation upon the underlying claims, a denial on
procedural grounds forecloses further litigation of those underlying claims. Thus dismissal on
technical grounds does not subject a subsequent petition to the requirements of 28 U.S.C. § 2244{b).
See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 (1998) (issue raised in first petition was
not ripe for review); Slack, 529 U.S. at 473, 485-486 (dismissal for lack of exhaustion of state court
remedies). Accordingly, as discussed infra, at 16-i7, the court of appeals’ resolution in Gonzalez
is consistent with Stewart and Slack.
13
606, 607-608 (6th Cir. 2000)'°; Carter v. United States, 150 F.3d 202, 205-206 (2nd Cir. 1998);
Hawkins v. Evans, 64 F.3d 543, 547 (10th Cir. 1995); Bates v. Whitley, 19 F.3d 1066, 1067 (Sth Cir.
1994); Howard yv. Lewis, 905 F.2d 1318, 1322-1323 (9th Cir. 1990). Accord Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 228 (1995) (“The rules of finality, both statutory and judge made, treat a
dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a
claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the
merits.”’).
Gonzalez comports with this Court’s recognition that while “habeas corpus proceedings are
characterized as ‘civil’ . . . . the label is gross and inexact.” Harris v. Nelson, 394 U.S. 286, 293-294
(1969). Unlike civil proceedings not arising under a special statutory grant of authority, a habeas
corpus petition attacking a state judgment of conviction and sentence as violative “of the
Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), is subject to qualification.
For example, a ground for relief in a habeas petition that was not properly raised in state court is
subject to denial as procedurally defaulted unless the petitioner has a non-futile state court remedy
to raise the claim, or can establish cause and actual prejudice or a fundamental miscarriage of justice
in order to avoid the procedural default. Schlup v. Delo, 513 U.S. 298, 314-315 (1995); cf. Bousley
v. United States, 523 U.S. 614, 622 (1998) (applying the procedural bar rule in the context of a §
2255 petition). Moreover, the draftsmen of the Federal Rules of Civil Procedure intended “that the
rules would have very limited application in habeas corpus proceedings.” Harris, 394 U.S. at 295.
‘The majority in In re Abdur’Rahman, 2004 U.S. App. LEXIS 25609 fails to address this
principle that a denial on procedural grounds is a final adjudication and its own precedent so holding,
citing Cook solely for the proposition that an unexhausted claim is deemed procedurally defaulted
where the petitioner cannot return to state court to properly exhaust the claim. In re Abdur’ Rahman,
id. at *9.
14
Just as Rules 26 and 33 of the Federal Rules of Civil Procedure do not completely and automatically
apply in habeas proceedings, Harris, 394 U.S. at 295-298, unfettered use of Rule 60(b) is similarly
“ill-suited to the special problems and character of [habeas] proceedings.” Id. at 296. And for any
claim raised in a Rule 60(b) motion, the petitioner, prior to passage of AEDPA and where the motion
was not an abuse of the writ, was required to first exhaust his or her state court remedies under 28
U.S.C. § 2254(b). Pitchess v. Davis, 421 U.S. 482, 489-490 (1975). Such limits on habeas corpus
litigation reflect the Court’s “respect for the State’s interest in the finality of convictions that have
survived direct review within the state court system,” and recognize that “[flinality is essential to
both the retribr'tive and the deterrent functions of criminal law.” Calderon v. Thompson, 523 U.S.
538, 555 (1998) (internal citation and quotation marks omitted). The fact that this was Gonzalez’s
first petition is irrelevant; section 2254 does not give rise to an absolute right to consideration of
substantive claims, as such review is conditional upon satisfaction of § 2244(d) as well as the
~ requirement that a claim must have been properly presented before the state courts.
Moreover, Congress has expressly provided for the differential treatment of habeas corpus
proceedings and ordinary civil actions. Rule | of the Federal Rules of Civil Procedure provides in
pertinent part that “[t}hese rules govern the procedure in the United States district courts in all suits
of a civil nature . . . with the exceptions stated in Rule 81. . . .” (emphasis added). Under Rule
81(a)(2), “[t]}hese rules [the Federal Rules of Civil Procedure] are applicable to proceedings for . .
. habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of
the United States and has heretofore conformed to the practice in civil actions.” (emphasis added).
Additionally, Rule 11 of the Rules Governing Section 2254 Cases (effective 1977), provides that
“(t}he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these Rules,
15
may be applied, when appropriate, to petitions filed under these rules.” (emphasis added). The
Eleventh Circuit’s decision in Gonzalez simply effectuates the “‘ gatekeeping’ mechanism for the
consideration of ‘second or successive habeas corpus applications’ in the federal courts” established
by Congress through 28 U.S.C. § 2244(b). See Stewart, 523 U.S. at 641; Felker v. Turpin, 518 U.S.
651, 657 (1996).
Because a determination that the underlying constitutional claims are not subject to ten
due to procedural grounds, i.e., the claims are procedurally defaulted or the petition is time-barred,
constitutes a ruling on the merits, petitioner’s reliance upon Stewart v. Martinez-Villareal, 523 U.S.
637 (1998) and Slack v. McDaniel, 529 U.S. 473 (2000), Petition, at 19, 21, is misplaced. In
Stewart, this Court held that a habeas petition dismissed without prejudice on the basis that a claim
was premature did not constitute adjudication of the claim to preclude its reassertion. Id., 523 U.S.
at 644-645. Similarly, in Slack, a dismissal without prejudice because the substantive claims had
not been exhausted in state court did not constitute a ruling on the merits such that their reassertion
would be successive. Id., 529 US. at 486-487. Those circumstances are quite distinct from an
adjudication finally disposing of a petition on procedural grounds that forecloses review of the
underlying constitutional claims. Compare Sanders v. United States, 373 U.S. 1, 19 (1963)
(dismissal based upon deficient pleading did not bar subsequently filed § 2255 petition). This
Court’s opinions in Stewart, Slack, and Sanders implicitly recognize the principle that not every
adjudication of a habeas petition on procedural grounds is a technical ruling; otherwise there would
16
have been no reason for the Court to consider whether there had been an adjudication of the merits
of the petitions at issue in those cases. '®
Respondent recognizes that resolution of the issue whether a Rule 60(b) motion challenging
the final disposition of a habeas petition on procedural grounds has not been consistent among a
limited number of the circuit courts of appeal considering the matter. The differing treatment does
not, however, warrant certiorari review at this time.-
In Pridgen v. Shannon, 380 F.3d 721 (3rd Cir. 2004), pet. for cert. filed (10/29/04) (No. 04-
7060), the Third Circuit Court of Appeals considered a claim as to whether a challenge brought in
a Rule 60(b) motion based upon newly discovered evidence and application of § 2244(d)(2) was
successive or could be considered on the merits. Id. at 722. While the Third Circuit adopted the
approach taken by every other circuit holding that an attempt to relitigate underlying constitutional
claims implicated § 2244(b), id., the court there concluded that the timeliness issue was properly
considered under Rule 60(b). Id. at 727-728. The scope of that court’s analysis, however, is limited,
relying in conclusory fashion upon the fact that the challenge was “an attack on the habeas
proceeding” because Pridgen alleged “that the District Court misinterpreted Pennsylvania law and
AEDPA.” Id. at 18.
'*In addition to his citation to Slack and Stewart, petitioner’s reliance upon Muniz v. United
States, 236 F.3d 122 (2nd Cir. 2001) on this issue is misplaced. Muniz involved review of an
application to file a successive petition. In the course of deciding whether petitioner was required
to make such a request, the Second Circuit improperly treated a dismissal pursuant to § 2244(d) as
a “technical procedural” defect and was particularly concerned that the habeas petitioner there,
through filing an application for a certificate of appealability, had sought a timely appeal asserting
an erroneous determination under § 2244(d), wherein application of two decisions that had been
released by the appellate court after the petition was dismissed but within the time for appeal would
have resulted in the petition being deemed timely filed. Muniz, id. at 128.
17
On December 13, 2004, the Sixth Circuit en banc issued its opinion in In re Abdur’ Rahman,
addressing whether a Rule 60(b) motion is a proper vehicle for raising a challenge to a habeas denial
based upon a procedural bar. Id., 2004 U.S. App. LEXIS 25609. Review of the 7-6 majority
opinion, however, reflects that no consideration was given to this Court’s decisions in Calderon,
Slack, or Stewart. 7
The Ninth Circuit Court of Appeals, in Hamilton v. Newland, 374 F.3d 822 (9th Cir. 2004),
considered whether a claim of actual innocence could properly be raised in a Rule 60(b) motion
where the habeas petition had been rejected as untimely. In concluding that the motion was not a
second or successive petition, the court there neglected to provide any analysis in asserting that “Rule
60(b) is the appropriate rule to invoke when one wishes a court to reconsider claims it has already
decided.” Id. at 825 (emphasis added).
Thus to date, then, only two other circuit courts of appeal have addressed the precise issue
presented in Gonzalez’s Rule 60(b, motion, that being the correctness of the determination as to
timeliness of the habeas petition, and ir permitting consideration of the motions, neither provided
any analysis to support its decision. Just as the circuit courts of appeal, subsequent to this Court’s
dismissal of Abdur’Rahman v. Bell, id., 537 U.S. 88 (2002), have rejected the all-or-nothing
approach previously discerned in some opinions, it is likely that further analysis by the majority of
circuits will clarify the appropriate treatment of Rule 60(b) motions in the context of a denial of a
habeas petition on procedural grounds without this Court’s review. And given the limited instances
in which the issue has arisen, there is not the conflict on an important matter as contemplated under
Rule 10 of the Rules of the Supreme Court of the United States.
18
= PU A
B. Gonzalez does not conflict with Supreme Court precedent.
Petitioner’s argument in subsection B of his first question presented, Petition, at 16-27, also
does not warrant this Court’s discretionary review, as it simply is not the case that Gonzalez
established a “bright-line prohibition of Rule 60(b)(6) jurisdiction in habeas corpus cases. . . .”
Petition, at 16. See supra, at 8. Moreover, the Eleventh Circuit’s analysis comports with this Court’s
precedent and the mandate of Congress in its enactment of AEDPA. Slack and Stewart do not
compel a result contrary to that reached by the Eleventh Circuit. Compare Petition, at 17-19. As
discussed supra, at 16-17, there is a distinction between a procedural dismissal anticipating
subsequent resolution of the underlying constitutional challenges to a conviction and/or sentence --
nonexhaustion or that the challenge is not ripe for review -- versus a procedural disposition
thereupon precluding review of those underlying claims at any time -- untimeliness of the petition
or denial of a claim due to a procedural bar.
The fact that a decision of this Court interpreted 28 U.S.C. § 2244(d)(2) differently from prior
opinions of the lower courts does not demonstrate an infirmity in the habeas proceedings. Instead,
and at most, the complaint is that the district court should have applied § 2244(d)(2) differently
because its understanding of the procedural statute turned out to be contrary to this Court’s
subsequent interpretation. Accordingly, petitioner’s claim of entitlement to review of the underlying
claims attacking his judgment of conviction and/or sentence following this Court’s opinion in Artuz
y. Bennett, 531 U.S. 4 (2000) -- the decision upon which his 60(b) motion relied -- is without merit.'”
His recourse to challenge an alleged erroneous application of law was to file a petition for writ of
"As discussed supra, at 4 n.4, the State disputed the timeliness of Gonzalez’s petition
irrespective of the applicability of Artuz.
19
certiorari from the denial of COA upon the habeas petition. A number of habeas petitioners sought
such relief from this Court both prior to and subsequent to the grant of certiorari in Artuz. See, e.g.,
Boufford v. Moore, 532 U.S. 1050 (2001) (Mem.); Hayes v. Mills, 532 U.S. 1015 (2001) (Mem.);
Banes-v. Moore, 532 U.S. 1005 (2001) (Mem.); Brown v. Moore, 532 U.S. 968 (2001) (Mem.),
Weekley v. Moore, 531 U.S. 1063 (2001) (Mem.); Cohen vy. Grant, 531 U.S. 988 (2000) (Mem.);
Guerroero v. Terhune, 531 U.S. 988 (2000) (Mem.); Moreland v. Lazaroff, 531 U.S. 988 (2000)
(Mem.); Weatherspoon v. Moore, 531 U.S. 988 (2000) (Mem.); Tinker v. Hanks, 531 U.S. 987
(2000) (Mem.). In fact, each of the above-listed petitioners whose cases originated in the Eleventh
Circuit'* filed for certiorari prior to that court’s decision applying Artuz, see Delancy v. Florida Dept.
of Corrections, 246 F.3d 1328 (11th Cir. 2001), thus demonstrating that Gonzalez also could have
sought further review without awaiting this Court’s decision in Artuz interpreting § 2244(d)(2). A
Rule 60(b) motion is not a substitute for appeal. Ackermann vy. United States, 340 U.S. 193, 202
(1950); see also Polites v. United States, 364 U.S. 426, 431-433 (1960) (decision not to appeal
generally cannot be circumvented by seeking Rule 60(b) relief; not deciding whether an alleged
change in the interpretation of substantive law permits Rule 60(b) consideration where the prior
opportunity to appeal was abandoned).
If, however, a Rule 60(b) motion is proper to seek relitigation upon a subsequent
interpretation of a procedural rule, wherein the former interpretation of that rule had previously
resulted in a final adjudication of a habeas petition, the underlying judgment of conviction and/or
sentence potentially would never be accorded finality. That is, such disregard for AEDPA renders
a prior adjudication in a habeas proceeding vulnerable to post-judgment attack vis-a-vis Rule 60(b)
'8Those petitioners included Banes, Boufford, Brown, Weatherspoon, and Weekley.
20
>
any time a different interpretation of a procedural rule is announced, irrespective of the time period
that had elapsed since denial of the § 2254 petition. Obviously the requirement of challenging a
denial on procedural grounds from a final judgment through a timely appeal would be eviscerated,
or alternatively, would provide the habeas petitioner with a second opportunity for review and in the
process circumvent § 2253(b). Moreover, in light of Congress’ inclusion of a statute of limitations
with a very limited provision for the running of the one-year period upon creation of a new
constitution right and an equally narrow exception for bringing a successive petition under the same
circumstances, it is incredulous that Congress intended that a habeas petitioner have greater rights
in respect to a procedural rule of law.
Thus if a Rule 60(b) motion may be used to raise a subsequent interpretation of § 2244(d)(2)
following issuance of Artuz v. Bennett, then logically the same would be true upon the Court’s
forthcoming decision in Pace v. DiGuglielmo, 125 S.Ct. 26 (Sept. 28, 2004) (No. 03-9627), a case
involving further interpretation of § 2244(d)(2), concerning the filing of untimely state collateral
applications. Cases that could well see the filing of a Rule 60(b) motion if the Court were to
conclude that the time is tolled upon the filing of an untimely state petition, would include, for
example: Williams v. Sims, 2004 U.S. App. LEXIS 24751 (7th Cir. Dec. 1, 2004); Wade v. Battle,
379 F.3d 1254 (11th Cir. 2004); Merritt v. Monroe, 326 F.3d 157 (3rd Cir.), cert. denied, 540 U.S.
921 (2003); Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003); Stafford v. Thompson, 328 F.3d
1302 (11th Cir. 2003); Johnson v. Wolfe, 41 Fed. Appx. 733 (6th Cir. Jun. 21, 2002) (unpublished);
Brooks v. Walls, 301 F.3d 839 (7th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Wright v. Norris,
299 F.3d 926 (8th Cir. 2002); Allen v. Mitchell, 276 F.3d 183 (4th Cir. 2001); Israfil v. Russell, 276
F.3d 768 (6th Cir. 2001), cert. denied, 535 U.S. 1088 (2002); Williams v. Cain, 217 F.3d 303 (Sth
21
Cir. 2000); Morgan v. Money, 2000 U.S. App. LEXIS 1914 (6th Cir. Feb. 8, 2000) (unpublished);
ay 2000 U.S. App. LEXIS 30179 (7th Cir. Nov. 22, 2000) (unpublished), cert.
denied, 532 U.S. 1068 (2001); Freeman v. Page, 208 F.3d 572 (7th Cir.), cert. denied, 531 U.S. 946
(2000); Romaine v. Woods, 2000 U.S. App. LEXIS 18606 (9th Cir. Jul. 26, 2000) (unpublished);
Webster v. Moore, 199 F.3d 1256 (11th Cir., cert. denied, 531 U.S. 991 (2000); Palmer v. Corcoran,
1999 U.S. App. LEXIS 23336 (4th Cir. Sept. 24, 1999) (unpublished); Kiel v. Scott, 1999 U.S. App.
LEXIS 2500 (10th Cir. Feb. 18, 1999) (unpublished)), cert. denied, 528 U.S. 1115 (2000); Conner
y. Lemaster, 1999 U.S. App. LEXIS 2495 (10th Cir. Feb. 18, 1999) (unpublished). The foregoing
list is without consideration of those district court § 2244(d) dismissals in which a certificate of
appealability was not obtained.
Petitioner’s reliance upon Blackmon v. Money, 27 Fed. Appx. 543 (6th Cir. Dec. 10, 2001)
(unpublished) and Thomas v. Roe, 23 Fed. Appx. 847 (9th Cir. Dec.27, 2001) (unpublished),
Petition, at 20, wherein consideration of the propriety of dismissing a habeas petition as untimely
under § 2244(d) was permitted under Rule 60(b) following Artuz v. Bennett, 531 U.S. 4 (2000), is
misplaced. In neither case does it appear that the successive nature of the Rule 60(b) motion was
raised nor addressed. Thus these cases are inapposite.
Similarly, petitioner’s citation to another unpublished opinion, Guyton v. United States, 23
Fed. Appx. 539 (7th Cir. Sept. 26, 2001) (unpublished), does not support application of Rule 60(b)
under the circumstances of an alleged error of law. Instead, in dicta, the Seventh Circuit stated that
“{hjad Guyton filed his Rule 60(b) motion in the district court within the one-year limitation in that
rule, the district court probably could have corrected its own error.” Id. at 540 (emphasis added).
In that case, as stated by the appellate court, the petitioner had “pursuant to 28 U.S.C. § 2255 and
22
Federal Rule of Civil Procedure 60(b) . . . filed a second petition nunc pro tunc.” Id. at 539. Thus
the issue herein presented was not before the court in Guyton.
Nor does petitioner’s reliance upon unpublished district court cases, Tal v. Miller, 1999 U.S.
Dist. LEXIS 652 (S.D.N.Y. Jan. 11, 1999) (unpublished) and Reinoso v. Artuz, 1999 U.S. Dist.
LEXIS 7768 (S.D.N.Y. Apr. 14, 1999) (unpublished), Petition, at 21, call into question the Eleventh
Circuit’s reasoning. In each of those decisions a Rule 60(b) motion provided a mechanism for
application of new decisional law to reinstate a habeas petition previously dismissed as untimely.
The reasoning in Tal, relied upon in Reinoso, actually necessitates the contrary result reached in
those decisions in light of this Court’s opinion in Calderon. That is, the court in Tal looked to the
purpose behind Rule 60(b)(6), that it “is to be ‘liberally construed when substantial justice will thus
be served’ and the motion is to be granted when ‘there are extraordinary circumstances . . . or where
the judgment may work an extreme and undue hardship,” Tal, 1999 U.S. Dist. LEXIS 652 *3
(internal citation omitted) -- the same basis upon which appellate courts may recall their mandates --
and relying upon pre-Calderon case law, approved the use of Rule 60(b) analogizing with a federal
appellate court's power to recall its mandate. \d. (citing Sargent v. Columbia Forest Prods., 75 F.3d
86, 89 (2nd Cir. 1996) (emphasis added)). As discussed infra, at 24, Calderon requires the contrary
result. Further, the district court’s conclusion that the Rule 60(b) motion was not successive
erroneously rested upon its rejection of the rule that a dismissal for untimeliness is an adjudication
on the merits, instead stating that it was “more akin to a subsequent petition after state court
remedies have been exhausted.” Tal, id. at *9.
In addition, petitioner’s argument that the circuit court “[o]verlook[ed] Congressional silence
on Rule 60(b) .. . .” Petition, at 22, neither addresses the applicability of Rules 1 and 81(a)(2) of the
23
Federal Rules of Civil Procedure, see supra, at 15, nor recognizes that the same certainly could be
said in respect to pre-AEDPA treatment of Rule 60(b) and whether a habeas petitioner was required
to exhaust his state court remedies before seeking 60(b) relief -- a position rejected by this Court.
Pitchess, 421 U.S. at 489-490. That is, notwithstanding that “Rule [60(b)] does not by its terms
speak to the requirement of exhaustion of remedies as a prerequisite for federal habeas relief-. . . .
[t]he exhaustion requirement, Picard v. Connor, 404 U.S. at 276, is statutorily incorporated in 28
U.S.C. §§ 2254 (b) and (c) . . . .” and thus pursuant to Rule 81(a)(2), any claim raised in a 60(b)
motion must meet the exhaustion requirement. Id.
Finally, petitioner’s argument that the circuit court should not have applied Calderon v.
Thompson, 523 U.S. 538 (1998), Petition, at 23-24, does not compel discretionary review. Petitioner
ignores the fact that a motion to recall an appellate mandate and a Rule 60(b) motion similarly are
limited to addressing extraordinary circumstances. See Calderon, 523 U.S. at 550 (motion to recall
the mandate); Plaut, 514 U.S. at 233 (Rule 60(b) motion). And in addition to the Eleventh Circuit,
Gonzalez, 366 F.3d at 1272-1277, other circuit courts of appeal, adopting the logic in Calderon, have
followed suit in the context of Rule 60(b) motions seeking review of the denial of a habeas petition.
See. e.g., Winestock, 340 F.3d at 206; Buell v. Anderson, 48 Fed. Appx. 491, 495 n.2 (6th Cir. Sept.
24, 2002) (unpublished); Dunlap, 301 F.3d at 875. That determination is not an aberration, as a Rule
60(b) motion has been viewed as equivalent to a motion to recall the mandate. See, e.g., Sargent,
75 F.3d at 89; Burris, 130 F.3d at 783; Gonzalez, 366 F.3d at 1276-1277.
In summary, as demonstrated above, the circuits have taken a case-by-case approach, looking
to what categorical type of claim the Rule 60(b) motion raises upon which the habeas petitioner
seeks to reopen a final judgment. Simply put, there is not the extent of the conflict that could
24
previously have been perceived. Thus this Court’s prior grant of a writ of certiorari on the issue, see
Abdur’Rahman v. Bell, 535 U.S. 1016 (2002), and relied upon petitioner, Petition, at 10-11, does
not support discretionary review in this case. Rather, the circuit courts of appeal continue to refine
their discussion of and have clarified the manner in which Rule 60(b) motions are to be treated when
brought in habeas corpus proceedings. In respect to the propriety of a Rule 60(b) motion upon a
denial on the merits based on a procedural rule specific to habeas corpus jurisprudence, the circuits
should be permitted continued consideration of the issue. Based upon the foregoing, the Eleventh
Circuit’s Gonzalez opinion does not warrant granting a writ certiorari. The petition should,
accordingly, be denied. Rules of the Supreme Court of the United States, Rule 10.
25
CONCLUSION
Based on the foregoing arguments and authorities, Respondent respectfully requests that this
Honorable Court deny Petitioner’s request for certiorari review.
Respectfully Submitted,
CHARLES J. CRIST, JR.
Attorney General of Florida
CASSANDRA K. DOLG
Assistant Attorney General
Counsel of Record
Office of the Attorney General
The Capitol
Tallahassee, FL 32399-1050
(850) 414-3579
(850) 487-0997 (fax)
Attorneys for Respondent
26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.