Amicus Curiae Brief — Gonzalez v. Crosby

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No. 04-6432 Lee OF Ir

In the Supreme Court of the United States

AURELIO O. GONZALEZ, PETITIONER

Vv.

JAMES V. CROSBY, JR., SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

THOMAS M. GANNON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b) that seeks to reopen a federal

court’s final decision rejecting a habeas petitioner’s chal-

lenge to a state criminal conviction constitutes a second or

successive habeas corpus application, within the meaning of

the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

A motion under Federal Rule of Civil Procedure

60(b) is subject to AEDPA’s limitations on second

and successive applications for habeas corpus if the

motion challenges the district court’s holding that

federal relief from the conviction is unavailable ..............

A. AEDPA’s restrictions on federal court review

of second and successive applications sharply

constrain Rule 60(b)’s operation in habeas cor-

pus cases

B. Petitioner’s Rule 60(b) motion is a prohibited

successive habeas application because petitioner

seeks to relitigate claims that the district court

already held do not support federal relief under

Section 2254

1. A dismissal on statute of limitations grounds

is a judgment on the merits that triggers

AEDPA’s limitations

2. An alleged mistake of law does not preclude

operation of Section 2244(b)’s limitations

on second or successive habeas applica-

tions

3. The court of appeals’ test, limiting Rule

60(b) to instances of fraud and clerical

error, is unduly narrow .

C. Petitioner is not entitled to relief under Rule

60(b)

Conclusion

Appendix

(III)

on —

7 8

TABLE OF AUTHORITIES

Cases:

Abdur’Rahman, In re, 392 F.3d 174 (6th Cir.

2004), petition for cert. pending, No. 04-1247 (filed

Mar. 11, 2005)

Ackerman v. United States, 340 U.S. 193 (1950)

Agostini v. Felton, 521 U.S. 203 (1997)

Alley v. Bell, 392 F.3d 822 (6th Cir. 2004)

Altman v. Benik, 337 F.3d 764 (7th Cir. 2003)

AmBase Corp. v. City Investing Co., 326 F.3d 63

(2d Cir.), cert. denied, 540 U.S. 1017 (2003)

Angel v. Bullington, 330 U.S. 183 (1947)

Artuz v. Bennett:

529 U.S. 1065 (2000)

531 U.S. 4 (2000)

Atkins v. Virginia, 536 U.S. 304 (2002)

Barrett v. United States, 965 F.2d 1184 (Ist Cir.

1992)

Behringer v. Johnson, 75 F.3d 189 (5th Cir.),

cert. denied, 516 U.S. 1182 (1996)

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995),

cert. denied, 516 U.S. 1051 (1996)

Brady v. Maryland, 373 U.S. 83 (1963)

Browder v. Director, Dep't of Corrections, 434 U.S.

257 (1978)

Brown v. Payton, No. 03-1039, 2005 WL 645182

(Mar. 22, 2005)

Calderon v. Thompson, 523 U.S. 538 (1998)

Carey v. Saffold, 536 U.S. 214 (2002)

Carter v. United States, 150 F.3d 202 (2d Cir.

1998)

Coleman v. Thompson, 501 U.S. 722 (1991)

Cook, In re, 215 F.3d 606 (6th Cir. 2000)

Cases—Continued: Page

Cooter & Gell v. Hartmarz Corp., 496 U.S. 384

(1990) 20

Engle v. Isaac, 456 U.S. 107 (1982) 13

Federated Dep t Stores, Inc. v. Moitie, 452 US.

394 (1981) 30

Felker v. Turpin, 518 U.S. 651 (1996) ............ 2, 15, 19, 23, 27

Gonzalez v. Secretary for the Dep't of Corrections,

317 F.3d 1308 (11th Cir.), vacated for reh’g

en banc, 326 F.3d 1175 (2003), on reh’g

en banc, 366 F.3d 1253 (2004), cert. granted,

125 S. Ct. 961 (2005) 4,6,7

Gonzalez v. State, 692 So. 2d 900 (Fla. 3d Dist.

Ct. App. 1997) 4

Graham v. United States, 72 F.3d 129 (6th Cir.

1995) 14

Guinan v. Delo, 5 F.3d 313 (8th Cir. 1993) 14

Hamilton v. Newland, 374 F.3d 822 (9th Cir.

2004), cert. denied, No. 04-7992, 2005 WL 517049

(Mar. 7, 2005) 27

Harris v. United States, 367 F.3d 74 (2d Cir.

2004) 27

Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) 22

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238 (1944)

Henderson v. Lampert, 396 F.3d 1049 (9th Cir.

2005)

Herrera v. Collins, 506 U.S. 390 (1993)

Hillary v. TWA, 123 F.3d 1041 (8th Cir. 1997),

cert. denied, 522 U.S. 1090 (1998) 19

Hohn v. United States, 524 U.S. 236 (1998) 5

Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995),

cert. denied, 516 U.S. 1054 (1996) 14

Kuhlmann v. Wilson, 477 US. 436 (1986) 23

Landano v. Rafferty, 897 F 2d 661 (3d Cir.),

cert. denied, 498 U.S. 811 (1990) 14

Cases—Continued:

Lazo v. United States, 314 F.3d 571 (11th Cir.

2002), vacated for reh’g en banc, 326 F.3d 1175

(2003), on reh’g en banc, 366 F.3d 1253

(2004)

Lebron Rios v. United States Marshal Serv., 341

F. 3d 7 (Ist Cir. 2003)

Liljeberg v. Health Serv. Acquisition Corp.,

486 U.S. 847 (1988)

Marshall v. Holmes, 141 U.S. 589 (1891)

McCleskey v. Zant, 499 U.S. 467 (1991)

Mitchell v. Chapman, 343 F.3d 811 (6th Cir.

2003), cert. denied, 124 S. Ct. 2908 (2004)

Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002),

vacated for reh’g en banc, 326 F.3d 1175

(2003), on reh’g en banc, 366 F.3d 1253 (2004),

cert. denied, 125 S. Ct. 965 (2005)

Murphy v. Klein Tools, Inc., 935 F 2d 1127

(10th Cir.), cert. denied, 502 U.S. 952 (1991)

Murphy v. United States, No. 99-5352, 2000

WL 274200 (D.C. Cir. Feb. 2, 2000), cert. denied,

530 U.S. 1248 (2000)

Murray v. Carrier, 477 U.S. 478 (1986)

Murray v. Greiner, 394 F.3d 78 (2d Cir. 2005) ..........

North Georgia Elec. Membership Corp. v. City of

Calhoun, 989 F. 2d 429 (11th Cir. 1993)

Ortiz-Cameron v. DEA, 139 F.3d 4 (Ist Cir.

1998)

O Sullivan v. Boerckel, 526 U.S. 838 (1999)

Overbee v. Van Waters & Rogers, 765 F. 2d 578

(6th Cir. 1985)

Pitchess v. Davis 421 U.S. 482 (1975)

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995)

Pliler v. Ford, 124 S. Ct. 2441 (2004)

Reinke v. Boden, 45 F.3d 166 (7th Cir.), cert.

denied, 516 U.S. 817 (1995)

VII

Cases Continued: Page

Rhines v. Weber, No. 03-9046 (Mar. 30, 2004),

slip op. 2, 12, 15

Ritter v. Smith, 811 F.2d 1398 (11th Cir.),

cert. denied, 483 U.S. 1010 (1987) 7, 28

Rodwell v. Pepe, 324 F.3d 66 (Ist Cir.), cert. denied,

540 U.S. 873 (2003) 26

Sawyer v. Smith, 497 U.S. 227 (1990) 23

Scott v. Singletary, 38 F.3d 1547 (11th Cir. 1994),

cert. denied, 515 U.S. 1145 (1995) 14

Shoup v. Bell & Howell Co., 872 F.2d 1178

(4th Cir. 1989) 19

Slack v. McDaniel, 529 U.S. 473 (2000) 14, 20

Smith v. Murray, 477 U.S. 527 (1986) 12

Spencer, Ex parte, 228 U.S. 652 (1913) 22

Stewart v. Martinez-Villareal, 523 U.S. 637

(1998) 20

Stone v. Powell, 428 U.S. 465 (1976) 18

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg Planning Agency, 322 F.3d 1064 (9th Cir.

2003) 19

Teague v. Lane, 489 U.S. 288 (1989) 13, 18, 23

Tyler v. Cain, 533 U.S. 656 (2001) 15, 23

United States v. Barber, 219 U.S. 72 (1911) 19

United States v. Beggerly, 524 U.S. 38 (1998) 25

United States v. Clark, 203 F.3d 358 (5th Cir.

2000), vacated on other grounds, 532 U.S. 1005

(2001) 21

United States v. Land, 213 F.3d 830 (5th Cir.

2000), cert. denied, 532 U.S. 904 (2001) 19

United States v. Oppenheimer, 242 U.S. 85

(1916) 19

United States v. Oregon Lumber Co., 260 U.S. 290

(1922) 19

United States v. Phillips, 225 F.3d 1198 (11th Cir.

2000) o

VIII IX

Cases Continued: Page Statutes and rules Continued: Page

United States v. Sells Eng g, Inc., 463 U.S. 418 28 U.S.C. 2254(d)(1) 29

(1983) ; 15 28 U.S.C. 2254(i) 26

Wainwright v. Sykes, 433 U.S. 72 (1977) 22 28 U.S.C. 2255 1, 11, 12, 16, 21

Williams v. Taylor, 529 U.S. 362 (2000) 13, 24 Fed. R. Civ. P.:

Witkowski v. Welch, 173 F.3d 192 (3d Cir. 1999) ............. 19 Rule 41(b) 18

Woodford v. Garceau, 538 U.S. 202 (2003) 11 Rule 60 8

er . Rule 60(a) 8

Constitution, statutes and rules: Rule 60(b) :

U.S. Const.: Rule 60(b)(3) 8

Art. I, § 9, Cl. 2 (Suspension Clause) 10, 22, 23, 24 Rule 60(b)\6) 29

Amend. IV 18 Rule 81 11

Amend. V (Due Process Clause) 9, 22, 23, 24 Rule 81(a)(2) 11

Antiterrorism and Effective Death Penalty Act Fed. R. Crim. P. 6(e) 15

of 1996, Pub. L. No. 104-132, 110 Stat. 1214 1 Rules Governing Section 2254 Cases, Rule 11 11

§ 106, 110 Stat. 1217 2 Rules Governing Section 2255 Proceedings, Rule 12 — 12

28 U.S.C. 2244 2, 19, 21 Fla. R. Crim. P. 3.850 13

28 U.S.C. 2244(a) 28

28 U.S.C. 2244(b) (1994) 20

28 U.S.C. 2244(b) 12, 20, 28

28 U.S.C. 2244(b)(1) 2, 9, 12, 19, 27

28 U.S.C. 2244(b)\(2) 12, 20

28 U.S.C. 2244(b)(2)(A) 2,10

28 U.S.C. 2244(b)\(2)(B)(i)

28 U.S.C. 2244(b)(2)(B)ii)

28 U.S.C. 2244(d)

28 U.S.C. 2244(d)(1)

28 U.S.C. 2244(d)(1)(A)

28 U.S.C. 2244(d)(2)

28 U.S.C. 2253(c)

28 U.S.C. 2253(c)(3)

28 U.S.C. 2254

28 U.S.C. 2254(b)

28 U.S.C. 2254(b)\(1)(A)

28 U.S.C. 2254(c)

A ad

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EP — —

In the Supreme Court of the Anited States

No. 04-6432

AURELIO O. GONZALEZ, PETITIONER

JAMES V. CROSBY, IR., SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case concerns whether and to what extent the limita-

tions imposed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214, on the filing of second or successive federal habeas cor-

pus applications apply to motions for relief from judgment

under Federal Rule of Civil Procedure 60(b). The United

States was a party to the consolidated en banc proceedings

below. See Lazo v. United States, No. 02-12483; J.A. 29-32.

Because AEDPA’s limitations on second or successive ha-

beas corpus applications generally apply to collateral review

of federal criminal convictions under 28 U.S.C. 2255, see J.A.

35, the United States has a substantial interest in this case.

(1)

STATEMENT

1. a. Under 28 U.S.C. 2254, state prisoners may obtain

collateral review of their criminal convictions by filing an

application for a writ of habeas corpus in federal district

court. Prisoners, however, must first exhaust available state

court remedies. 28 U.S.C. 2254(b)(1)(A) and (c); see gener-

ally Rhines v. Weber, No. 03-9046 (Mar. 30, 2005). Title I of

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1217, worked sub-

stantial changes in the availability of federal habeas corpus

relief. See generally Felker v. Turpin, 518 U.S. 651, 656

(1996). Of relevance here, Section 106 of AEDPA (codified

at 28 U.S.C. 2244) imposed strict constraints on the filing of

repeat—second or successive—challenges to state con-

victions, creating a “modified res judicata rule” for federal

habeas corpus proceedings. Felker, 518 U.S. at 664. Section

2244(b)(1) imposes an absolute bar on a habeas corpus appli-

cation that raises claims that were already presented in a

prior application. With respect to claims that were not pre-

sented in the initial application, Section 2244(b)(2) requires

their dismissal unless the new claim “relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavail-

able,” 28 U.S.C. 2244(b)(2)(A), or “the factual predicate for

the claim could not have been discovered previously through

the exercise of due diligence” and the facts underlying the

claim could establish “by clear and convincing evidence that,

but for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying offense,” 28

U.S.C. 2244(b\(2)BXi) and (ii).

AEDPA also imposed a one-year statute of limitations on

filing applications for federal habeas corpus relief from state

court convictions. See 28 U.S.C. 2244(d); Pliler v. Ford, 124

S. Ct. 2441, 2445 (2004); Carey v. Saffold, 536 U.S. 214, 220

(2002). Although there are limited exceptions, the time limit

generally begins running at the conclusion of direct review of

the criminal judgment. See 28 U.S.C. 2244(d)(1)(A). The

running of the limitations period is tolled, however, during

the pendency of “a properly filed application for State post-

conviction or other collateral review.” 28 U.S.C. 2244(d)(2).

b. Federal Rule of Civil Procedure 60(b) authorizes

courts to relieve a party in civil litigation from a final judg-

ment for six reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence

could not have been discovered in time to move for a new

trial under Rule 59(b); (3) fraud (whether heretofore de-

nominated intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party; (4) the judgment is

void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective ap-

plication; or (6) any other reason justifying relief from

the operation of the judgment.

2. a. In 1982, petitioner pleaded guilty in Florida state

court to armed robbery, armed kidnapping, and armed bur-

glary with a firearm. Pet. App. A4, at 2; J. A. 32.’ He was

sentenced to 99 years of imprisonment. J.A. 32. He did not

appeal either the judgment of conviction or the sentence.

Ibid. Fourteen years later, petitioner filed a collateral chal-

lenge to his conviction in Florida state court, see Fla. R.

Crim. P. 3.850. J.A. 32. He alleged that newly discovered

evidence demonstrated that his guilty plea was unknowing,

unintelligent, and involuntary because counsel had advised

The court of appeals’ decision mistakenly lists the year as 1992. The

correct date is 1982. Pet. App. Al, at 2; Pet. Br. 2.

him that he would serve no more than 13 years. Ibid. The

state court denied relief, and the court of appeals affirmed.

Ibid.; Gonzalez v. State, 692 So. 2d 900 (Fla. 3d Dist. Ct. App.

1997) (Table).

b. In June 1997, petitioner filed an application for habeas

corpus under 28 U.S.C. 2254, repeating his claim that his

plea was involuntary and unknowing. Pet. App. A4; J.A. 32.

Petitioner amended his application to add claims that the

sentencing court relied upon incorrect criminal records and

did not sign the sentencing order. Pet. App. A6, at 1.

The district court dismissed the application as time-barred

under 28 U.S.C. 2244(d)(1). Because petitioner’s conviction

became final before AEDPA but his application for habeas

corpus relief was filed after AEDPA’s enactment, petitioner

was afforded a one-year grace period—the one year follow-

ing AEDPA’s effective date of April 24, 1996—in which to

pursue relief under 28 U.S.C. 2254. Pet. App. A7, at 2-3. Pe-

titioner’s application for federal habeas corpus, however, was

not filed until two months after the grace period expired.

Gonzalez v. Secretary for the Dep’t of Corrections, 317 F.3d

1308, 1310 (11th Cir.), vacated for reh’g en banc, 326 F.3d

1175 (2003), on reh’g en banc, 366 F.3d 1253 (2004), cert.

granted, 125 S. Ct. 961 (2005).

The district court initially granted petitioner a certificate

of appealability, 28 U.S.C. 2253(c), but the court of appeals

vacated the certificate and remanded for clarification be-

cause the district court had not specified which issues satis-

fied the statutory criteria for appealability, see 28 U.S.C.

2253(cX(3). See J.A. 32. On remand, the district court denied

petitioner a certificate of appealability. Jbid. On April 6,

2000, a judge of the court of appeals also denied petitioner a

certificate of appealability. Ibid.

e. Eleven days later, on April 17, 2000, this Court

granted review in Artuz v. Bennett, No. 99-1238, to address

the proper application of AEDPA’s provision tolling the

limitations period during the pendency of state post-con-

viction proceedings. See 529 U.S. 1065. Nevertheless,

petitioner did not seek this Court’s review of the dismissal of

his application for habeas corpus or the denial of a certificate

of appealability. On November 7, 2000, this Court issued its

decision in Artuz, holding that the requirement in the tolling

provision that the application for state post-conviction relief

be “properly filed” is satisfied when the application “is deliv-

ered to, and accepted by, the appropriate court officer for

placement into the official record.” 531 U.S. 4, 8 (2000). The

Court rejected the argument that an application seeking

review of claims that are procedurally defaulted under state

law is not “properly filed,” reasoning that the propriety of a

filing turns upon “applicable laws and rules governing” the

“delivery and acceptance” of pleadings, and not whether the

claims contained in the application “are meritorious and free

of procedural bar.” Id. at 8-9.

3. Eight months after this Court’s decision in Artuz, pe-

titioner filed a motion under Federal Rule of Civil Procedure

60(b) for relief from the judgment dismissing his federal ha-

beas corpus application on statute of limitations grounds.

J.A. 13-20. Petitioner contended that, under Artuz, his state

collateral challenge was “properly filed” and therefore tolled

the running of the AEDPA limitations period. J.A. 18-19.

The district court denied petitioner’s motion for relief under

Rule 60(b), J.A. 21, and declined to issue a certificate of ap-

pealability, J.A. 33. A judge of the court of appeals subse-

quently granted a certificate of appealability “on the issue of

2 Petitioner could have filed a petition for a writ of certiorari asking

the Court to hold the petition pending Artuz, or to grant review and hold

that the certificate of appealability was improperly denied. See Hohn v.

United States, 524 U.S. 236 (1998); Br. in Opp. 20 (listing cases where

certiorari was granted to other prisoners denied certificates of

appealability in cases implicating Artuz).

whether the district court’s September 9, 1998 dismissal of

[petitioner’s] habeas petition was error.” Ibid.

A panel of the court of appeals affirmed. Gonzalez v. Sec-

retary for the Dep’t of Corrections, supra. As an initial mat-

ter, the panel held that the certificate of appealability

authorized appeal of an issue not properly before the

court—the merits of the district court’s 1998 dismissal of pe-

titioner’s Section 2254 application. The only issue on appeal,

the panel explained, was the propriety of the district court’s

dismissal of Gonzalez’s motion for relief under Rule 60(b).

Gonzalez, 317 F.3d at 1310. The panel then held that a cer-

tificate of appealability would be required to appeal the de-

nial of petitioner’s Rule 60(b) motion. Id. at 1311-1312. In so

ruling, the panel extended the court’s earlier decision in

Lazo v. United States, 314 F.3d 571 (11th Cir. 2002), vacated

for reh’g en_banc, 326 F.3d 1175 (2003), on reh’g en banc, 366

F.3d 1253 (2004), which had held that a certificate of appeal-

ability is required for a second or successive petition that is

disguised as a Rule 60(b) motion—that is, a Rule 60(b) mo-

tion that directly attacks the underlying state court judg-

ment of conviction rather than the district court’s habeas

decision. Gonzalez, 317 F.3d at 1311; see Lazo, 314 F.3d at

573. The panel concluded that the same requirement of a

certificate of appealability should apply to Rule Mb) mo-

tions that attack the merits of the federal court’s habeas

ruling. Gonzalez, 317 F.3d at 1312.

Finally, the panel denied petitioner a certificate of appeal-

ability. The panel did “not find it debatable among jurists of

reason” that the denial of petitioner's Rule 60(b) motion was

an abuse of discretion because, under circuit precedent, all

Rule 60(b) motions were to be treated as second or succes-

sive petitions, and petitioner did not satisfy the statutory

criteria for filing a second or successive application. Gon-

zalez, 317 F.3d at 1312 (citing Mobley v. Head, 306 F.3d 1096

(11th Cir. 2002), vacated for reh’g en banc, 326 F.3d 1175

(2003), on reh’g en banc, 366 F.3d 1253 (2004), cert. denied,

125 S. Ct. 965 (2005)). In addition, the panel concluded that,

“even if pre-AEDPA law applied, it would still be clear that

[petitioner’s] Rule 60(b) motion was due to be denied.” Gon-

zalez, 317 F.3d at 1312. The panel explained that “a change

in the law standing alone was not a proper basis for Rule

60(b) relief absent extraordinary circumstances,” and peti-

tioner had failed to identify any such exceptional circum-

stances. Ibid. To the contrary, the court considered signifi-

cant the “almost three year{]” time lag between the district

court’s denial of his habeas corpus application and the Rule

60(b) motion, because It he longer the delay the more intru-

sive is the effort to upset the finality of the judgment.” Id. at

1313 (quoting Ritter v. Smith, 811 F.2d 1398, 1402 (11th Cir.),

cert. denied, 483 U.S. 1010 (1987)).

4. a. The court of appeals granted rehearing en banc,

granted petitioner a certificate of appealability, and affirmed

the district court’s denial of his Rule 60(b) motion. J.A. 22-

125. At the outset, the en banc court held that a certificate

of appealability is required to appeal the dismissal of a Rule

60(b) motion in cases seeking review of both state convic-

tions (under 28 U.S.C. 2254) and federal convictions (under

28 U.S.C. 2255). J.A. 36-43. The court granted petitioner a

certificate of appealability because his underlying constitu-

tional claim—that his guilty plea was neither knowing nor

voluntary—was debatable among jurists of reason, and his

challenge to the district court’s dismissal of his habeas appli-

cation on statute of limitations grounds was likewise rea-

sonably debatable. J.A. 45-46.

With respect to the merits of the district court’s denial of

petitioner’s motion, the court of appeals held that AEDPA

“severely limit(s] the application of Rule 60(b) to habeas

cases,” J. A. 48, because AEDPA’s “central purpose” was to

enhance the finality of state and federal convictions and, to

that end, to “greatly restrict the filing of second or succes-

sive petitions,” J. A. 47. “Applying Rule 60(b) full throttle to

final judgments in habeas cases,” the court reasoned, “would

essentially repeal the later-enacted AEDPA provisions.”

J.A. 49. The court accordingly held that Rule 60 motions are

permissible only to correct clerical errors, Fed. R. Civ. P.

60(a), or to remedy fraud on the court, Fed. R. Civ. P.

60(b)(3). J. A. 63-64. In limiting Rule 60 motions to those two

grounds, the court relied on Calderon v. Thompson, 523 U.S.

538 (1998), which had similarly limited a court’s inherent

authority to recall its mandate in habeas cases. See J.A. 58.

Because Gonzalez’s Rule 60 motion neither concerned

clerical error or fraud nor satisfied the criteria for a second

or successive petition, the court of appeals affirmed the

district court’s dismissal of the motion. J.A. 69-70.

b. With respect to the disposition of petitioner’s case,

Judge Tjoflat, joined by Judges Barkett and Wilson, dis-

sented. J.A. 81-123, 124-125. The dissent would have held

that AEDPA’s limitations on second and successive filings

do not apply because petitioner’s Rule 60(b) motion did not

directly attack the underlying state criminal conviction but,

instead, focused on error allegedly committed in the federal

proceedings. J.A. 99-101.

SUMMARY OF ARGUMENT

A central aim of AEDPA is to curtail serial federal court

review of state-court convictions. To that end, AEDPA

adopts a modified rule of res judicata for federal habeas

judgments. The operation of Rule 60(b)’s general provisions

for civil litigation must be subordinated to those specific

statutory restrictions on second and successive applications

for federal habeas corpus review. Any time a motion under

Rule 60(b) seeks to reopen a prior habeas judgment either on

the ground that the court committed legal error in holding

that the prisoner’s claims do not support federal relief or on

the basis that new claims should be considered, the motion is

operating in territory covered by AEDPA, and Rule 60(b)’s

more general provisions must give way. Even when a Rule

60(b) motion does not directly implicate AEDPA’s terms,

this Court’s precedent makes clear that exercises of the

courts’ equitable discretion in habeas cases must be conso-

nant with AEDPA’s terms and purposes. Accordingly, fed-

eral habeas judgments should be reopened under Rule 60(b)

only if there has been a substantial defect in the federal

court’s processes that goes to the integrity, fundamental re-

liability, and rudimentary fairness of the procedures by

which the first habeas application was adjudicated. The type

of error that may justify reopening, moreover, must not be

so frequently occurring as to threaten, in practice, to cir-

cumvent AEDPA’s constraints on federal review of criminal

convictions.

Petitioner’s Rule 60(b) motion is squarely foreclosed by

AEDPA’s categorical prohibition on applications that seek

successive review of the same legal claims for relief, 28

U.S.C. 2244(b)(1). The district court has already held, as a

matter of law, that petitioner’s claims do not support federal

relief from his conviction because they are barred by

AEDPA’s statute of limitations. That ruling was a final and

dispositive determination that the claims presented in peti-

tioner’s habeas application do not support federal relief, and

that judgment is fully subject to AEDPA’s res judicata

rules. Petitioner’s argument that the case should be re-

opened—not because he is innocent and not because of any

fundamental failure in the federal court’s adjudicatory proc-

esses, but because the federal court allegedly made a mis-

take of law in applying AEDPA’s limits on habeas review

—represents precisely the type of reiterated review of ha-

beas judgments that AEDPA proscribes.

There is no merit to petitioner’s argument that the Due

Process Clause of the Fifth Amendment and the Constitu-

tion’s limitations on suspension of the writ of habeas corpus,

U.S. Const. Art. I, § 9, Cl. 2, compel reconsideration of his

claims. Statutes of limitations, procedural default rules, and

limitations on the retroactive application of constitutional

rulings to cases on collateral review have long been applied

by federal courts in habeas cases without constitutional in-

cident. The privilege of seeking habeas relief is not a

guarantee that all claims will be decided on their own terms

or that all of the habeas court’s rulings will be error free.

Finally, even if petitioner’s Rule 60(b) motion were found

not to be subject to AEDPA, the court of appeals’ judgment

should be affirmed. Intervening changes of law support re-

lief under Rule 60(b) only in the most extraordinary circum-

stances, and they almost never should do so in habeas cases

where they fail to satisfy AEDPA’s specific provision regu-

lating the consideration of certain new rules of constitutional

law, 28 U.S.C. 2244(b)(2)(A). In this case, there are no ex-

traordinary or extenuating circumstances that warrant re-

lief. Indeed, when the federal court issued the habeas judg-

ment of which he now complains, petitioner failed to seek

this Court’s review of that decision, even though the Court

was actively considering the legal basis for that adverse

judgment at the time. Rule 60(b) does not offer relief for

parties who default on the normal avenues of appellate re-

view.

ARGUMENT

A MOTION UNDER FEDERAL RULE OF CIVIL PRO-

CEDURE 60(B) IS SUBJECT TO AEDPA’S LIMITA-

TIONS ON SECOND AND SUCCESSIVE APPLICA-

TIONS FOR HABEAS CORPUS IF THE MOTION

CHALLENGES THE DISTRICT COURT’S HOLDING

THAT FEDERAL RELIEF FROM THE CONVICTION

IS UNAVAILABLE

A. AEDPA’s Restrictions On Federal Court Review Of

Second And Successive Applications Sharply Cons-

train Rule 60(b)’s Operation In Habeas Corpus Cases

1. Federal Rule of Civil Procedure 60(b) is a general rule

embodying the courts’ traditional authority to afford relief

from their judgments, and it broadly governs most forms of

civil litigation in the federal courts. See Fed. R. Civ. P. 81;

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 233-234 (1995).

The Rule’s operation, however, is subject to more specific

limitations imposed by legislation. In particular, the Federal

Rules of Civil Procedure expressly provide that they apply

to habeas corpus proceedings only “to the extent that the

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

United States, the Rules Governing Section 2254 Cases, or

the Rules Governing Section 2255 Proceedings.” Fed. R.

Civ. P. 81(a)(2). Accordingly, where the practice for habeas

corpus proceedings is set forth by statute, that practice

“takes precedence over the Federal Rules.” Browder v.

Director, Dep't of Corrections, 434 U.S. 257, 269 n.14 (1978).*

3 See Woodford v. Garceau, 588 U.S. 202, 208 (2008); Pitchess v. Davis,

421 U.S. 482, 489 (1975) (“Since the exhaustion [of state remedies)

requirement is statutorily codified [under Section 2254], even if Rule 60(b)

could be read to apply to this situation it could not alter the statutory

command.”); Rule 1“ of the Rules Governing Section 2254 Cases (the

Federal Rules of Civil Procedure apply to Section 2254 cases only if “they

“The enactment of AEDPA in 1996 dramatically altered

the landscape for federal habeas corpus petitions.” Rhines v.

Weber, No. 03-9046 (Mar. 30, 2005), slip op. 4. In AEDPA,

Congress strictly limited the federal courts’ authority to re-

visit the denial of an application for habeas relief. If a habeas

corpus applicant files a successive application asking a fed-

eral court to reconsider granting relief on grounds that were

already “presented in a prior application,” 28 U.S.C.

2244(b)(1), AEDPA unconditionally commands dismissal.

AEDPA also places significant limits on the consideration of

new claims not previously presented to the federal court. In

that setting, the application can be entertained only if it re-

lies on a new rule of constitutional law that this Court has

made applicable to cases on collateral review or on newly

discovered evidence clearly demonstrating actual innocence.

28 U.S.C. 2244(b)(2).

Section 2244(b)’s strict limitations on second and succes-

sive claims are “grounded in respect for the finality of crimi-

nal judgments,” and reflect “AEDPA’s central concern that

the merits of concluded criminal proceedings not be revisited

in the absence of a strong showing of actual innocence.”

Calderon v. Thompson, 523 U.S. 538, 558 (1998). Congress

recognized the “profound societal costs that attend the exer-

cise of habeas jurisdiction.” Jd. at 554 (quoting Smith v.

Murray, 477 U.S. 527, 539 (1986)). Indeed, “[flinality is es-

sential to both the retributive and the deterrent functions of

criminal law.” Calderon, 523 U.S. at 555. “Perpetual disre-

spect for the finality of convictions disparages the entire

criminal justice system.” McCleskey v. Zant, 499 U.S. 467,

492 (1991). Serial review denies closure for the victims, the

public, and the government; discourages those convicted of

crime from accepting responsibility for their crimes; and de-

are not inconsistent with any statutory provisions”); Rule 12 of the Rules

Governing Section 2255 Cases (same, for actions under 28 U.S.C. 2255).

prives the criminal law of the retributive certainty that is

essential to its deterrent and punitive effect. See id. at 491;

Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion)

(“Without finality, the criminal law is deprived of much of its

deterrent effect.”). In addition, the more prolonged the

review process, the greater the risk that the passage of time

will preclude any retrial of the defendant and thus, “in

practice,” will “reward the accused with complete freedom

from prosecution.” Engle v. Isaac, 456 U.S. 107, 128 (1982).

Repeated habeas corpus filings also consume significant

governmental resources, with sharply diminishing returns in

the vindication of fundamental constitutional rights or the

protection of the innocent.

When state convictions are challenged on federal habeas

review, enforcing finality rules and limiting federal court

oversight “preserve[s] the federal balance” by respecting the

States’ “good-faith attempts to honor constitutional rights,”

as well as their “sovereign power to punish offenders.”

Calderon, 523 U.S. at 555-556 (quoting Murray v. Carrier,

477 U.S. 478, 487 (1986)). AEDPA's limitations on repetitive

and piecemeal attacks on criminal convictions thus “further

the principles of comity, finality, and federalism.” Williams

v. Taylor, 529 U.S. 420, 436 (2000); see McCleskey, 499 U.S.

at 491 (“Finality has special importance in the context of a

federal attack on a state conviction.”).

Accordingly, to the extent that a motion under Rule 60(b)

operates in territory covered by AEDPA—.e., it seeks ei-

ther reconsideration of the court’s holding that claims previ-

ously presented are insufficient to support federal relief or

the consideration of new claims or new evidence—AEDPA

supplants Rule 60(b), and further federal review is permissi-

ble only on AEDPA’s terms. To hold otherwise would cir-

cumvent AEDPA’s restrictions on relitigation. Indeed, for

that same reason, this Court held that a prisoner’s motion to

recall a court of appeals’ mandate on the basis of the merits

of the underlying decision in a Section 2254 case must be

treated as a second or successive habeas corpus application.

“Otherwise, petitioners could evade the bar against reliti-

gation 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.

The fact that the narrow “claim” presented in the Rule

60(b) motion does not itself attack the underlying state con-

viction does not lessen the threatened inroads on finality.

Calderon made clear that AEDPA is concerned with

whether the ultimate object of the application is to obtain

another round of federal review of the criminal conviction,

not with the formal procedural device employed. 523 U.S. at

553; cf. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (to obtain

certificate of appealability for alleged error in a procedural

ruling, prisoner must show that reasonable jurists could dis-

agree not only about the procedural judgment, but also, if

the procedural ruling is overturned, about whether the peti-

tion states a valid claim of a denial of a constitutional right).

In sum, a Rule 60(b) attack on a federal habeas court’s rea-

son for denying relief—whether the reason was based on a

constitutional ruling or a holding of procedural default, non-

retroactivity, or a statute of limitations bar—falls within the

Even before AEDPA, courts of appeals recognized that Rule 60(b)

motious in habeas cases should be subject to judicially prescribed limita-

tions on second c successive petitions. See, e.g., Hunt v. Nuth, 57 F.3d

1327, 1339-1340 (4th Cir. 1995), cert. denied, 516 U.S. 1054 (1996);

Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir.), cert. denied, 516 U.S.

1182 (1996); Graham v. United States, 72 F.3d 129 (6th Cir. 1995) (Table);

Guinan v. Delo, 5 F.3d 313, 316 (8th Cir. 1993); Bonin v. Calderon, 59 F.3d

815, 847 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996); Scott v.

Singletary, 38 F.3d 1547, 1553 (11th Cir. 1994), cert. denied, 515 U.S. 1145

(1995); see also Barrett v. United States, 965 F.2d 1184, 1188 n.7 (Ist Cir.

1992) (dicta); Landano v. Rafferty, 897 F.2d 661, 668 n.10 (3d Cir.), cert.

denied, 498 U.S. 811 (1990).

scope of AE DPA. Accordingly, it must meet the standards

and comply with the procedures governing a second or sue-

cessive motion under AE DPA.

2. Petitioner contends (Br. 14-18) that Rule 60(b) has

equivalent status to duly enacted legislation and thus that

courts must strain to read AEDPA’s restrictions on federal

review in a way that preserves Rule 60(b)’s uncabined reach.

That position is not sustainable. Unlike some other federal

rules, Rule 60 has not been enacted into positive law.

AEDPA, in contrast, represents a comprehensive statutory

revision of habeas practice and “greatly resiricts the power

of federal courts to award relief to state prisoners who file

second or successive habeas corpus applications.” Tyler v.

Cain, 533 U.S. 656, 661 (2001). As a result, when a Rule

60(b) motion operates within AEDPA’s realm—by seeking

either to relitigate claims previously presented or to raise

new claims—Rule 60(b)’s general provisions must yield to

AEDPA’s statutory limitations on serial habeas litigation.

Even if a particular application of Rule 60(b) would “not

contravene the letter of AEDPA,” federal courts must al-

ways exercise their discretion to extend collateral review of

criminal convictions in a manner that is “consistent with the

objects of [AEDPA],” and the larger societal interests in fi-

nality and closure. Calderon, 523 U.S. at 554; see Rhines,

slip op. 5-6 (even though “AEDPA does not deprive district

courts of thle] authority” to grant stays, “it does cir-

cumscribe their discretion,” which must be exercised in a

manner “compatible with AEDPA’s purposes”); Felker v.

Turpin, 518 U.S. 651, 663 (1996) (AEDPA “inform[s]” exer-

cise of this Court’s original habeas jurisdiction even if it does

not directly regulate it). The courts’ discretion to grant re-

5 See United States v. Sells Eng’g, Inc., 463 U.S. 418, 438 (1983)

(Federal Rule of Criminal Procedure 6(e), which governs grand jury

secrecy, has been enacted into positive law).

lief under Rule 60(b) already is limited to “extraordinary cir-

cumstances.” Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 864 (1988) (quoting Ackerman v. United States,

340 U.S. 193, 199 (1950)). But because Rule 60(b) motions in

Section 2254 and Section 2255 cases almost invariably impli-

cate Congress’s interest in constraining serial federal review

of criminal convictions, a prisoner must show more than just

the usual extraordinary“ grounds for relief. He must also

demonstrate that further review would not frustrate the fi-

nality, comity, and federalism purposes advanced by

AEDPA.

As a general rule, that will occur only when the Rule 60(b)

motion exposes a substantial defect in the court’s processes

that goes to the integrity, fundamental reliability, and rudi-

mentary fairness of the procedures by which his first appli-

cation was adjudicated. See pp. 24-28, infra. The type of

error asserted, moreover, must be so infrequently occurring

as not to threaten, in practice, to circumvent AEDPA’s con-

straints on federal review of criminal convictions. For ex-

ample, Rule 60(b) relief should remain available in Section

2254 and Section 2255 cases where fraud or a similar type of

substantial defect in the court’s adjudicatory processes per-

vaded and indelibly tainted the initial habeas proceedings,

“calling into question the very legitimacy” and integrity of

the judgment, Calderon, 523 U.S. at 557. But to allow

federal re-review based on alleged legal or factual flaws in

the merits of the district court’s conclusion that federal

habeas relief should be denied (i) would fail to respect

Congress’s determination, in AEDPA, that serial federal re-

view of the same conviction should be strictly circumscribed,

(ii) would ignore the principle that Rule 60(b) relief is sup-

posed to be extraordinary and exceptional because of the

need for stability and finality in judgments, and (iii) would

disregard the profound costs to society, the justice system,

and the effectiveness of the penal laws occasioned by the

multiplicitous relitigation on habeas of challenges to criminal

convictions.

B. Petitioner’s Rule 60(b) Motion Is A Prohibited Suc-

cessive Habeas Application Because Petitioner Seeks

To Relitigate Claims That The District Court Already

Held Do Not Support Federal Relief Under Section

2254

1. A dismissal on statute af limitations grounds is a

judgment on the merits that triggers AEDPA’s

limitations

Petitioner’s Rule 60(b) motion does not present the type

of extraordinary defect in the functioning of the federal court

in the first habeas proceeding that can support another

round of federal review of his state conviction “consistent

with the objects of [AEDPA].” Calderon, 523 U.S. at 554.

Quite the opposite, petitioner’s motion simply asks the dis-

trict court to reconsider its rejection of the claims made in

his first application for habeas relief on the ground that the

court committed error in finding that the claims were time-

barred. The only justification advanced for doing so is not

extraordinary; it is the quite ordinary argument that the

court made a mistake of law. But that contention cannot ob-

secure the fact that petitioner is still seeking relief based on

the same claims—the alleged involuntariness of his plea and

errors in his criminal history—and that he is protesting the

habeas court’s legal basis for rejecting them. Petitioner can

no more resurrect those claims through a Rule 60(b) motion

than he could through the filing of a new habeas application,

which would unquestionably be barred as successive.

The essence of petitioner's argument is that the prior fed-

eral court denial of relief does not count—for purposes of

characterizing the Rule 60(b) motion as successive—because

the court denied relief on statute of limitations grounds. But

statute of limitations rulings are an integral part of deter-

mining whether the claims presented support federal habeas

relief from a state conviction. Judicially crafted limitations

on federal review—such as procedural default rules, limita-

tions on collateral review of Fourth Amendment claims, see

Stone v. Powell, 428 U.S. 465 (1976), and the non-retroactiv-

ity doctrine, see Teague v. Lane, supra—may often conclu-

sively bar federal relief from a conviction. The denial of

habeas relief on such grounds constitutes the same type of

final resolution of a petitioner’s claim to federal relief as

dismissals that rely upon the construction of particular

provisions of the Bill of Rights. In short, “(t]he ‘merits’ of a

claim are disposed of when it is refused enforcement,” and

Haln adjudication declining to reach such ultimate sub-

stantive issues may bar a second attempt to reach them in

another court” as much as their actual decision. Angel v.

Bullington, 330 U.S. 183, 190 (1947); see Artuz, 531 U.S. at 8-

9 (equating a procedural bar determination with substantive

consideration of the merits of a claim).

Indeed, the Federal Rules of Civil Procedure accord judg-

ments based on statute of limitations grounds the same

status and effect as other dispositions on the merits. See

Fed. R. Civ. P. 41(b) (“Unless the court in its order for dis-

missal otherwise specifies, a dismissal under this subdivision

and any dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper venue, or for

failure to join a party under Rule 19, operates as an adjudi-

cation upon the merits.”). This Court, as well, has long rec-

ognized that denials of relief on statute of limitations

grounds constitute final judgments on the merits and are

entitled to res judicata effect. See Plaut, 514 U.S. at 228

(“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.”).© No different rule applies in

criminal cases.

Furthermore, Section 2244’s “modified res judicata rule,”

‘Felker, 518 U.S. at 664, does not turn on the legal basis for

disposing of the case in the first round of collateral review.

To the contrary, the statute turns solely on whether the

claim for relief from the criminal conviction “was presented”

in the prior application, in which case dismissal is mandatory,

28 U.S.C. 2244(b)(1), or “was not presented,” in which case

dismissal is mandatory unless the new claim falls within the

See also United States v. Oregon Lumber Co., 260 U.S. 290, 299-300

(1922) (“The defense of the statute of limitations is not a technical defense

but substantial and meritorious,” and “a decree dismissing a bill on the

ground of lapse of time [is] a judgment upon the merits.”). The courts of

appeals are in accord. See, e. g., Ortiz-Cameron v. DEA, 139 F.3d 4, 6 (Ist

Cir. 1998); AmBase Corp. v. City Investing Co., 326 F.3d 63, 72 (2d Cir.),

cert. denied, 540 U.S. 1017 (2003); Witkowski v. Welch, 173 F.3d 192, 200

(3d Cir. 1999); Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir.

1989); United States v. Land, 213 F.3d 830, 834 (5th Cir. 2000), cert. -

denied, 532 U.S. 904 (2001); Mitchell v. Chapman, 343 F.3d 811, 820 (6th

Cir. 2003), cert: denied, 124 S. Ct. 2908 (2004); Reinke v. Boden, 45 F.3d

166, 168 (7th Cir.), cert. denied, 516 U.S. 817 (1995); Hillary v. TWA, 123

F.3d 1041, 1044 (8th Cir. 1997), cert. denied, 522 U.S. 1090 (1998); Tahoe-

Sierra Preservation Council, Inc. v. Tahoe Reg Planning Agency, 322

F.3d 1064, 1081 (9th Cir. 2003); Murphy v. Klein Tools, Inc., 985 F.2d 1127,

1128-1129 (10th Cir.), cert. denied, 502 U.S. 952 (1991); Murphy v. United

States, No. 99-5325, 2000 WL 274200, at *1 (D.C. Cir. Feb. 2, 2000), cert.

denied, 530 U.S. 1248 (2000); North Georgia Elec. Membership Corp. v.

City of Calhoun, 989 F. 2d 429, 433 (11th Cir. 1993).

7 See United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916) (LA]

judgment for the defendant upon the ground that the prosecution is

barred goes to his liability as matter of substantive law and one judgment

that he is free as matter of substantive law is as good as another. A plea of

the statute of limitations is a plea to the merits.”); United States v. Barber,

219 U.S. 72, 78 (1911) (The plea of the statute of limitation, is

directed to the merits of the case; and if found in favor of the defendant

the judgment is necessarily an acquittal of the defendant of the charge,

and not a mere abatement of the action.”) (citation omitted).

narrowly prescribed exceptions for intervening rules of con-

stitutional law or new evidence of actuai innocence, 28 U.S.C.

2244(b)(2). Indeed, AEDPA deleted language from the

predecessor version of Section 2244(b) that defined second

and successive writs by considering whether there was “a

hearing on the merits of an issue of law” that was actually

“adjudicated.” 28 U.S.C. 2244(b) (1994). Respondent’s ar-

gument thus attempts to resuscitate statutory language that

Congress specifically discarded.*

8 This Court’s decisions in Slack v. McDaniel, supra, and Stewart v.

Martinez-Villareal, 523 U.S. 637 (1998), determined that a final dismissal

with prejudice, not just presentation of the claim, is necessary before

court-made or pre-AEDPA statutory limitations on subsequent

applications for relief attach. Slack, 529 U.S. at 485-488 (dismissal without

prejudice on exhaustion grounds does not trigger limits on subsequent

petitions under pre-AEDPA law); Stewart, 523 U.S. at 643-644 (same, for

dismissal without prejudice on ripeness grounds). In such circumstances,

the Court concluded that the return to federal court functions effectively

as a continuation of the original proceeding for relief, because the federal

court never actually determined whether the claims presented would

support federal relief from the conviction. Slack, 529 U.S. at 486 (at time

of return to federal court, the viability of the claims as a basis for relief

from the conviction “was unadjudicated on its merits”); Stewart, 523 U.S.

at 643 (where prisoner returned to federal court after a dismissal without

prejudice of claims based on ripeness grounds, there still “was only one

aplication for habeas relief”). Indeed, the dismissal in each case, by its

terms, “contemplated that the prisoner could return to federal court,”

Slack, 529 U.S. at 486; see Stewart, 523 U.S. at 640, and the Court stressed

in Stewart that lit is certain” that Martinez-Villareal’s claim “would not

be barred under any form of res judicata,” 523 U.S. at 645. See also

Lebron-Rios v. United States Marshal Serv., 341 F.3d 7, 13 (Ist Cir. 20038)

(res judicata does not attach to dismissal without prejudice on exhaustion

grounds); see generally Cooter & Gell v. Hartmarz Corp., 496 U.S. 384,

396 (1990) (dismissal without prejudice lacks res judicata effect). A dis-

missal with prejudice on statute of limitations grounds, by contrast,

constitutes a final and dispositive adjudication on the merits of the

question whether the claims presented support federal relief; res judicata

The costs of allowing repetitive litigation to the State, vic-

tims, courts, and society—i.e., upsetting the finality of penal

judgments, the danger that delayed relief will thwart retrial,

and the resource drain on the courts—are exactly the same

regardless of whether the first application was held

insufficient on statute of limitations or constitutional

grounds. When, as here, “lengthy federal proceedings have

run their course and a mandate denying relief has issued,”

the “State’s interests in finality are all but paramount.”

Calderon, 523 U.S. at 556, 557. At that point, unsettling

longstanding and already repeatedly scrutinized criminal

convictions inflietſs] a profound injury to the ‘powerful and

legitimate interest in punishing the guilty,’ * * * an

interest shared by the State and the victims of crime alike.”

Id. at 556 (quoting Herrera v. Collins, 506 U.S. 390, 421

(1993)). Thus, both AEDPA’s text and its animating pur-

poses dictate that dismissal of an initial Section 2254 ap-

plication on statute of limitations grounds—a merits-based

judgment that the claims presented do not warrant federal

relief—triggers Section 2244’s restrictions on second or suc-

cessive filings.’

attaches; and no later return to or revival of the claims in federal court is

contemplated.

® See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (“We hold that

dismissal of a § 2254 petition for failure to comply with the one-year

statute of limitations constitutes an adjudication on the merits that

renders future petitions under § 2254 challenging the same conviction

‘second or successive’ petitions under §.2244(b).”); Altman v. Benik, 337

F.3d 764, 766-767 (7th Cir. 2008) (same, for Section 2255); United States v.

Clark, 203 F.3d 358, 370 n.13 (5th Cir. 2000) (describing a dismissal of a

Section 2254 petition on statute of limitations grounds as a disposition on

the merits), vacated on other grounds, 532 U.S. 1005 (2001); cf. Henderson

v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (procedural default ruling

should be treated as a ruling on the merits for purposes of Section

2244(b)); In re Abdur’Rahman, 392 F.3d 174, 188-189 (6th Cir. 2004) (en

banc) (Siler, J., dissenting) (same), petition for cert. pending, No. 04-1247

2. An alleged mistake of law does not preclude operation

of Section 2244(b)’s limitations on second or succes-

sive habeas applications

Petitioner argues (Br. 25-38) that precluding relief under

Rule 60(b) from the district court’s denial of his first habeas

application on statute-of-limitations grounds would violate

the Due Process Clause of the Fifth Amendment and the

Constitution’s Suspension Clause, which petitioner reads

(Br. 36) as mandating an actual “determination of the claims

asserted.” But, if accepted, petitioner's argument would

preclude the application of any statute of limitations to fed-

eral habeas corpus actions because any enforcement of that

limitations period necessarily would entail disposing of the

petition without determining the merits of the underlying

constitutional claims. Furthermore, long before AEDPA,

federal courts refused to decide the constitutional claims

raised in a habeas petition if the prisoner procedurally de-

faulted those claims in state court, unless the prisoner also

demonstrated cause and prejudice for the failure to press the

issue. Surely the Suspension Clause does not proscribe this

Court’s longstanding procedural default rules. There simply

is no constitutional principle entitling every federal habeas

corpus applicant to have every federal constitutional claim

decided on its ovvn terms at least once.

(filed Mar. 11, 2005); Harvey v. Horan, 278 F.3d 370, 379-380 (4th Cir.

2002) (same); Jn re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (same); Carter v.

United States, 150 F.3d 202, 205-206 (2d Cir. 1998) (same).

10 The Due Process Clause provides that In jo person shall * * * be

deprived of life, liberty, or property, without due process of law.” U.S.

Const. Amend. V. The Suspension Clause provides that It he Privilege of

the Writ of Habeas Corpus shall not be suspended, unless when in Cases

of Rebellion or Invasion the public Safety may require it.” U.S. Const.

Art. I. § 9, Cl. 2.

1 See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87-90 (1977); Ex parte

Spencer, 228 U.S. 652, 660-661 (1913).

— ——

Petitioner’s contention (Br. 36-39) that the district court

made a statutory construction error in denying relief does

not change the constitutional equation. That circumstance, if

given decisive significance, would constitutionalize every

alleged misinterpretation of a limitations period and every

debatable exhaustion ruling in federal habeas proceedings.

See 28 U.S.C. 2244(d), 2254(b). Presumably, the same logic

would extend to any error in applying the procedural default

doctrine. Whatever else they may guarantee, neither the

Suspension Cl ide nor the Due Process Clause is an insur-

ance policy against legal error in adjudicating a habeas

case.

The writ of habeas corpus does not even serve as a guar-

antee against error in the original criminal case. The central

lesson of Teague v. Lane, supra, is that “the purpose for

which the writ of habeas corpus is made available” is to en-

sure the faithful application of the law “that prevailed at the

time the original proceedings took place,” 489 U.S. at 306

(plurality opinion), “not to provide a mechanism for the con-

tinuing reexamination of final judgments based upon later

emerging legal doctrine,” Sawyer v. Smith, 497 U.S. 227, 234

(1990).“ And Congress has pursued the same policy in

12 That is especially true in light of the fact that the Great Writ did not

even extend to prisoners (like petitioner) detained under state law until

nearly 100 years after the Constitution was adopted, see, e. g., McCleskey,

499 U.S. at 478, and this Court’s endorsement of constitutional challenges

to state convictions on habeas did not emerge until the middle of the 20th

century, Felker, 518 U.S. at 663. Indeed, this Court has assumed the

applicability of the Suspension Clause to the current scope of the writ, id.

at 663-664, but has not yet so held.

13 See also Tyler v. Cain, supra (federal habeas relief unavailable for

unconstitutional jury instruction); Kuhlmann v. Wilson, 477 U.S. 436, 448

n.8 (1986) (opinion of Powell, J.) (the scope of federal habeas jurisdiction

involves “balancing competing interests” and thus sometimes withholds

relief for constitutional claims “whether or not those claims are

meritorious”).

AEDPA by restricting federal habeas relief for a claim de-

cided in state court to decisions that are contrary to, or an

unreasonable application of, this Court’s decisions at the

time of the state court ruling, or that are based on an unrea-

sonable determination of the facts. See 28 U.S.C. 2254(d).

Under that standard, error alone is not enough to obtain

relief. See, e.g., Williams v. Taylor, 529 U.S. 362, 402-413

(2000); cf. Brown v. Payton, No. 03-1039, 2005 WL 645182, at

*11 (Mar. 22, 2005) (Breyer, J., concurring) (recognizing

Congress’s direction “to defer to the reasonable conclusions

of state-court judges” even if the state decision “likely”

involved error). a

Thus, neither the Suspension Clause nor the Due Process

Clause is violated by tolerating legal error in the initial

criminal trial or in the subsequent resolution of constitu-

tional claims in state habeas proceedings. It follows that

there is no sound reason for concluding that those provisions

are violated by declining to remedy a belatedly exposed

statutory-construction error in federal habeas review.

3. The court of appeals’ test, limiting Rule 60(b) to in-

stances of fraud and clerical error, is unduly narrow

a. In affirming the district court’s judgment refusing

Rule 60(b) relief, the court of appeals held that the availabil-

ity of relief under Rule 60(b) turns exclusively on whether

the prisoner’s motion is based on clerical error or fraud in

the habeas proceeding. J.A. 63-64. While the court of ap-

peals’ judgment is correct, its categorical prohib'tion on all

other grounds for relief under Rule 60(b) goes too far. The

correct test for determining whether a Rule 60(b) motion

qualifies as a second or successive petition is whether the

motion challenges the correctness of the underlying federal

court judgment that the claims presented do not support ha-

beas relief or seeks to obtain relief on the basis of new legal

claims or new evidence. If the motion does so, it operates in

territory covered by AEDPA’s modified res judicata rules

and can proceed, if at all, only on AEDPA’s terms. On the

other hand, if the motion seeks relief predicated on the basis

of an exceptional defect in the federal court’s adjudicatory

processes—an error that reflects a breakdown in the ordi-

nary functioning of the court system, such that the initial

judgment denying relief cannot be trusted or the prisoner

otherwise did not receive a full and fair determination of

whether his claims provide a basis for federal relief—then

the Rule 60(b) motion does not trench upon either AEDPA’s

text or its purposes, and it can be resolved as an ordinary

Rule 60(b) motion. Fraud generally will qualify as the type

of fundamental defect in the federal court’s proceedings that

remains an appropriate subject for relief under Rule 60(b),

because a Rule 60(b) motion based on fraud ordinarily does

not directly implicate AEDPA’s res judicata rule.“ Res

judicata historically has not attached to judgments procured

through fraud, and neither the government nor the public

has a legitimate interest in preserving the finality or dura-

bility of such judgments.”

But fraud is not the only type of non-clerical error that can

occur in habeas cases and that falls outside of AEDPA’s

reach. For example, relief under Rule 60(b) may also be

consonant with AEDPA where the court or the government

failed to serve the prisoner with notice at a critical stage of

the initial habeas proceeding and the prisoner, with

1 The fraud must be based on a claim of serious perversion of the

habeas court’s own processes, cf. Hazel-Atlas Glass Co. v. Hartford-Em-

pire Co., 322 U.S. 238, 245 (1944), not a recycled allegation of a violation of

disclosure duties in the underlying criminal case that the State allegedly

failed to cure. A mere claim of a continuing violation of Brady v.

Maryland, 373 U.S. 83 (1963), will not constitute a valid Rule 60(b) claim.

See Alley v. Bell, 392 F.3d 822, 881 (6th Cir. 2004).

15 See, e. g., United States v. Beggerly, 524 U.S. 38, 47 (1998); Marshall

v. Holmes, 141 U.S. 589, 599-600 (1891). |

diligence, could not have cured that defect independently,

with the result that the prisoner was effectively deprived of

his full statutory right to review under Section 2254 or

Section 2255. See Rodwell v. Pepe, 324 F.3d 66, 70 (Ist Cir.)

(dicta), cert. denied, 540 U.S. 873 (2003). Relief would also be

appropriate if there were an error in the execution of the

judgment. See United States v. Phillips, 225 F.3d 1198, 1201

(11th Cir. 2000) (relief under Rule 60(b) granted where a

technical error in remedy ordered by the court had

previously denied the prisoner his right to appeal). In

short, in the wake of AEDPA, relief should remain available

for Rule 60(b) motions that attack a fundamental irregularity

in the procurement or integrity of the initial habeas

judgment, but not for those that simply attack the correct-

ness of the court’s ultimate ruling. The latter ground is fully

addressed and occupied by AEDPA.“

b. Petitioner (Br. 18-21), like the dissent below (J.A. 99-

100), argues that the dividing line between Rule 60(b) mo-

tions subject to AEDPA and those that are not shouid be

drawn based on whether the motion focuses on error in the

16 Because Congress expressly provided that t he ineffectiveness or

incompetence of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding arising under

Section 2254,” 28 U.S.C. 2254(i), similar missteps by counsel should not

provide a basis for relief under Rule 60(b) either. Cf. Coleman v.

Thompson, 501 U.S. 722 (1991).

17 The court of appeals relied (J A. 58) on this Court’s decision in

Calderon, which limited motions to recall the mandate in habeas cases to

instances of fraud and clerical error, 523 U.S at 557. Calderon, however,

did not involve a prisoner’s independent effort obtain further judicial

review of his conviction; it addressed a court’s inherent authority, sua

sponte, to recall its own mandate, a practice that is not directly : zulated

by AEDPA. See JA. 78 (Edmonson, C. J., specially concurring in part and

dissenting in part); J.A. 94-95 (Tjoflat, J., specially concurring in part and

dissenting in part).

federal habeas proceedings or in the underlying state court

proceeding. That is the wrong test.

First, petitioner’s test is unworkable, because every suc-

cessive petition attacking a state court conviction can be re-

cast as error in the federal court’s application of controlling

law. Indeed, petitioner proves the point by arguing (Br. 42-

44) that Rule 60(b) would be the appropriate vehicle for

raising a claim that a death sentence is proscribed by Atkins

v. Virginia, 536 U.S. 304 (2002). Although, under peti-

tioner’s approach, that Rule 60(b) motion would no doubt

allege a fundamental error in the federal district court’s pro-

ceedings, its substance would plainly make a frontal assault

on the state court judgment. Thus, in practice, petitioner’s

proposed distinction would open the gate to relitigation of

any claim of legal error by the habeas court.“

Second, Congress’s concern in AEDPA was to restrict the

federal courts’ role in reviewing state convictions. AEDPA’s

18 The potential for abuse is real. See Abdur’Rahman, 392 F.3d at 184

(characterizing a procedural default ruling as “defective” because of the

“unclear state of the law” at the time the district court ruled); Hamilton v.

Newland, 374 F.3d 822, 824 (9th Cir. 2004) (court treats as a proper Rule

60(b) motion a prisoner’s request that the district court “reach the merits

of the same constitutional claims he had raised in the original petition,”

just because the prisoner added an admittedly insubstantial claim of

“actual innocence” simply “as a procedural device to avoid the statute of

limitations”), cert. denied, No. 04-7992, 2005 WL 517049 (Mar. 7, 2005);

Harris v. United States, 367 F.3d 74, 80 (2d Cir. 2004) (treating failure of

privately retained habeas counsel to raise a claim as going to “the

integrity of Harris’s habeas proceeding”). Petitioner’s further suggestion

that Rule 60(b) is necessary, in the Atkins hypothetical, to save AEDPA

from unconstitutionality is unsound. If the scenario petitioner posits of

state officials intent on going forward with a facially unconstitutional

execution ever arises—and he cites no case where it has—then that will be

the appropriate time for the Court to address whether 28 U.S.C.

2244(b)(1) applies to original petitions for habeas corpus in this Court, see

Felker, 518 U.S. at 662-663, or would otherwise proscribe mandamus relief

in those extraordinary circumstances.

res judicata rule thus trains on the federal court judgment

itself. See 28 U.S.C. 2244(a) (focusing on whether the

legality of detention has been determined once “by a judge

or court of the United States”); 28 U.S.C. 2244(b) (regulating

second and successive filings based on prior applications to

federal courts under federal law). Accordingly, in deter-

mining whether a Rule 60(b) motion seeks to avoid

AEDPA’s restrictions on serial federal review, the con-

trolling consideration is whether the motion challenges the

correctness of the prior federal court disposition. That is

precisely what petitioner’s motion does: it falls squarely

within AEDPA’s text because it seeks reconsideration of the

court’s prior holding that the asserted claims do not support

federal relief. Petitioner’s test thus would thwart Con-

gress’s purpose to restrict sequential efforts to invoke

federal habeas jurisdiction.

C. Petitioner Is Not Entitled To Relief Under Rule 60(b)

Even if the court of appeals erred in characterizing peti-

tioner’s Rule 60(b) motion as a second or successive applica-

tion under Section 2244(b), the Eleventh Circuit’s judgment

should be affirmed because “[i]ntervening developments in

the law by themselves rarely constitute the extraordinary

circumstances required for relief under Rule 60(b)(6).”

Agostini v. Felton, 521 U.S. 203, 239 (1997); see also Lilje-

berg, 486 U.S. at 863-864. Nothing in petitioner’s case

19 The court of appeals cases that have granted relief based on

intervening law generally have insisted that the change in law be accom-

panied by extraordinary circumstances. See Ritter v. Smith, 811 F.2d

1398, 1401-1402 (11th Cir.) (Rule 60(b) relief warranted where a con-

trolling decision of this Court intervened and (1) the judgment had not

been executed; (2) there was only minimal delay between the entry of the

judgment and the Rule 60(b) motion; and (3) the Court had granted

certiorari in the case leading to the change in law specifically to address

the court of appeals’ decision in the movant's case), cert. denied, 483 U.S.

1010 (1987); Overbee v. Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir.

transforms Artuz’s statutory construction holding into the

type of exceptional circumstance that would justify re-

opening his federal habeas case at this late date. Nor does

petitioner make any claim of actual innocence. His guilt is

plain, with his claims for relief focused on the length of his

sentence.

While petitioner’s application for federal habeas was re-

jected based on a statute of limitations holding that might

now be incorrect under Artuz, that alone does not satisfy

Rule 60(b). Petitioner was afforded a full and fair opportu-

nity to brief the statute of limitations question and to try “to

win his case.” Angel, 330 U.S. at 189. He does not allege any

extraordinary defect in or failure in the integrity of the fed-

eral court proceedings—there was no fraud or denial of fair

notice, and the district court’s ultimate disposition was not

an unreasonable application of clearly established law. Cf. 28

U.S.C. 2254(d)(1). In the words of petitioner’s own amicus

(NACDL Br. 17), the alleged mistake of law did “not render

erroneous anything about the process by which the district

court rejected the petition” (emphasis added). Petitioner’s

reliance on an intervening decision therefore falls outside the

ordinary scope of Rule 60(b).

Finally, even if an intervening decision could form a basis

for Rule 60(b) relief, petitioner’s failure to pursue ordinary

corrective processes should disqualify him from that

extraordinary remedy. Less than two weeks after petitioner

was denied a certificate of appealability by the Eleventh

Circuit, this Court granted certiorari in Artuz, supra, to

address the very statute of limitations argument that peti-

tioner now wishes to advance. But petitioner chose not to

1985) (state supreme court reversed itself within one year, and the judg-

ment was not final when the plaintiff filed his Rule 60(b)(6) motion).

pursue relief from this Court.” Petitioner had the

opportunity to seek relief from the district court’s statute of

limitations ruling from this Court along with Mr. Bennett.

But he was “content to drop [his claims] and let the inter-

mediate adjudication stand. Now he wants an encore.”

Angel, 330 U.S. at 191. AEDPA forbids that, and nothing in

the Constitution or federal law justifies invoking Rule 60(b)

to permit it.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

7 PAUL D. CLEMENT

Acting Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General >

THOMAS M. GANNON

Attorney

APRIL 2005

2 See note 2, supra; Ackerman, 340 U.S. at 198 (even where hindsight

reveals that a failure to seek further review “was probably wrong,” Rule

60(b) is not a mechanism for relieving parties of “free, calculated, deli-

berate choices”); cf. O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (discussing

state prisoners general obligation to pursue discretionary review within

the state court system); Federated Dep't Stores, Inc. v. Moitie, 452 U.S.

394, 400-401 (1981) (no exception to res judicata principles for parties who

fail to preserve their rights through appeal).

STATUTORY APPENDIX

SELECTED PROVISIONS OF

28 U.S.C. CHAPTER 153—HABEAS CORPUS

§ 2241. Power to grant writ

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdictions. The

order of a circuit judge shall be entered in the records of the

district court of the district wherein the restraint com-

plained of is had.

(b) The Supreme Court, any justice thereof, and any

circuit judge may decline to entertain an application for a

writ of habeas corpus and may transfer the application for

hearing and determination to the district court hav'ng jur-

isdiction to entertain it.

prisoner unless—

(1) He is in custody under or by color of the

authority of the United States or is committed for trial

before some court thereof; or

(2) He is in custody for an act done or omitted in

pursuance of an Act of Congress, or an order, process,

judgment or decree of a court or judge of the United

States; or

(3) He is in custody in violation of the Constitution

or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done or omitted

under any alleged right, title, authority, privilege, pro-

tection, or exemption claimed under the commission,

order or sanction of any foreign state, or under color

(la)

thereof, the validity and effect of which depend upon the

law of nations; or

(5) It is necessary to bring him into court to

testify or for trial.

(d) Where an application for a writ of habeas corpus is

made by a person in custody under the judgment and

sentence of a State court of a State which contains two or

more Federal judicial districts, the application may be filed

in the district court for the district wherein such person is in

custody or in the district court for the district within which

the State court was held which convicted and sentenced him

and each of such district courts shall have concurrent juris-

diction to entertain the application. The district court for the

district wherein such an application is filed in the exercise of

its discretion and in furtherance of justice may transfer the

application to the other district court for hearing and

determination.

R R K ** *

§ 2244. Finality of determination

(a) No circuit or disirict judge shall be required to en-

tertain an application for a writ of habeas corpus to inquire

into the detention of a person pursuant to a judgment of a

court of the United States if it appears that the legality of

such detention has been determined by a judge or court of

the United States on a prior application for a writ of habeas

corpus, except as provided in section 2255.

(b)(1) A claim presented in a second or successive

habeas corpus application under section 2254 that was pre-

sented in a prior application shall be dismissed.

(2) A elaim presented in a second or successive habeas

corpus application under section 2254 that was not presented

in a prior application shall be dismissed unless—

" 3a

(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of

due diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense.

(3)(A) Before a second or successive application

permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals for

an order authorizing the district court to consider the

application.

(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or suc-

cessive application shall be determined by a three-judge

panel of the court of appeals.

second or successive application only if it determines that

the application makes a prima facie showing that the appli-

cation satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the

authorization to file a second or successive application not

later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of

appeals to file a second or successive application shall not be

appealable and shall not be the subject of a petition for

rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim presented in

a second or successive application that the court of appeals

has authorized to be filed unless the applicant shows that the

claim satisfies the requirements of this section.

(e) In a habeas corpus proceeding brought in behalf of

a person in custody pursuant to the judgment of a State

court, a prior judgment of the Supreme Court of the United

States on an appeal or review by a writ of certiorari at the

instance of the prisoner of the decision of such State court,

shall be conclusive as to all issues of fact or law with respect

to an asserted denial of a Federal right which constitutes

ground for discharge in a habeas corpus proceeding, actually

adjudicated by the Supreme Court therein, unless the ap-

plicant for the writ of habeas corpus shall plead and the court

shall find the existence of a material and controlling fact

which did not appear in the record of the proceeding in the

Supreme Court and the court shall further find that the

applicant for the writ of habeas corpus could not have caused

such fact to appear in such record by the exercise of reason-

able diligence.

(d) (1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation

period shall run from the latest of—

(A) the date on which the judgment became final

by the conclusion of direct review or the expiration of the

time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

asserted was initially recognized by the Supreme Court, if

the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on coll-

ateral review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

(2) The time during which a properly filed application

for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation under this

subsection.

§ 2253. Appeal

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a district judge, the final order

shall be subject to review, on appeal, by the court of appeals

for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order

in a proceeding to test the validity of a warrant to remove to

another district or place for commitment or trial a person

charged with a criminal offense against the United States, or

to test the validity of such person’s detention pending re-

moval proceedings.

(c)(1) Unless a circuit justice or judge issues a certifi-

cate of appealability, an appeal may not be taken to the court

of appeals from—

(A) the final order in a habeas corpus proceeding in

which the detention complained of arises out of process

issued by a State court; or

(B) the final order in a proceeding under section

2255.

(2) A eertificate of appealability may issue under para-

graph (1) only if the applicant has made a substantial

showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2).

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground

that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)(i) there is an absence of available State

corrective process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of

the State.

(3) 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.

(e) An applicant shall not be deemed to have ex-

hausted 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) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue

made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption

of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made re-

troactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due dili-

gence; and

(B) the facts underlying the claim would be suf-

ficient to establish by clear and convincing evidence that

but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense.

(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support

the State court’s determination of a factual issue made

therein, the applicant, if able, shall produce that part of the

record pertinent to a determination of the sufficiency of the

evidence to support such determination. If the applicant,

because of indigency or other reason is unable to produce

such part of the record, then the State shall produce such

part of the record and the Federal court shall direct the

State to do so by order directed to an appropriate State

official. If the State cannot provide such pertinent part of

the record, then the court shall determine under the existing

facts and circumstances what weight shall be given to the

State court’s factual determination.

(g) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by the

State court shall be admissible in the Federal court pro-

ceeding.

(h) Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this sec-

tion, and any subsequent proceedings on review, the court

may appoint counsel for an applicant who is or becomes

financially unable to afford counsel, except as provided by a

rule promulgated by the Supreme Court pursuant to statu-

tory authority. Appointment of counsel under this section

shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel

during Federal or State collateral post-conviction proceed-

ings shall not be a ground for relief in a proceeding arising

under section 2254.

§ 2255. Federal custody; remedies on motion attack-

ing sentence

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation

of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum authorized

by law, or is otherwise subject to collateral attack, may move

the court which imposed the sentence to vacate, set aside or

correct the sentence.

Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief,

the court shall cause notice thereof to be served upon the

United States attorney, grant a prompt hearing thereon,

determine the issues and make findings of fact and con-

clusions of law with respect thereto. If the court finds that

the judgment was rendered without jurisdiction, or that the

sentence imposed was not authorized by law or otherwise

open to collateral attack, or that there has been such a denial

or infringement of the constitutional rights of the prisoner as

to render the judgment vulnerable to collateral attack, the

court shall vacate and set the judgment aside and shall

10a

discharge the prisoner or resentence him or grant a new trial

or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without

requiring the production of the prisoner at the hearing.

An appeal may be taken to the court of appeals from the

order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

An application for a writ of habens corpus in behalf of a

prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion

is inadequate or ineffective to test the legality of his

detention.

A 1-year period of limitation shall apply to a motion under

this section. The limitation period shall run from the latest

of—

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by governmental action in violation of the

Constitution or laws of the United States is removed, if

the movant was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if that right

has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

— A

— —

11a

(4) the date on which the facts supporting the

claim or claims presented could have been discovered

through the exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this sec-

tion, and any subsequent proceedings on review, the court

may appoint counsel, except as provided by a rule promul-

gated by the Supreme Court pursuant to statutory author-

ity. Appointment of counsel under this section shall be

governed by section 3006A of title 18.

A second or successive motion must be certified as pro-

vided in section 2244 by a panel of the appropriate court of

appeals to contain—

(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be suf-

ficient to establish by clear and convincing evidence that

no reasonable factfinder would have found the movant

guilty of the offense; or

(2) a new rule of constitutional law, made retro-

active to cases on collateral review by the Supreme Court,

that was previously unavailable.

12a

RULES GOVERNING SECTION 2254 CASES IN THE

UNITED STATES DISTRICT COURT

RULE 9. Delayed or Successive Petitions

(a) DELAYED PETITIONS. A petition may be dismissed

if it appears that the state of which the respondent is an

officer has been prejudiced in its ability to respond to the

petition by delay in its filing unless the petitioner shows that

it is based on grounds of which he could not have had

knowledge by the exercise of reasonable diligence before the

circumstances prejudicial to the state occurred.

(b) SUCCESSIVE PETITIONS. A second or successive

petition may be dismissed if the judge finds that it fails to

allege new or different grounds for relief and the prior

determination was on the merits or, if new and different

grounds are alleged, the judge finds that the failure of the

petitioner to assert those grounds in a prior petition

constituted an abuse of the writ.

RULE 11. Federal Rules of Civil Procedure; Extent

of Applicability :

The Federal Rules of Civil Procedure, to the extent that

they are not inconsistent with these rules, may be applied,

when appropriate, to petitions filed under these rules.

13a

RULES GOVERNING SECTION 2255 PROCEEDINGS

FOR THE UNITED STATES DISTRICT COURT

RULE 9. Delayed or Successive Motions

(a) DELAYED MOTIONS. A motion for relief made

pursuant to these rules may be dismissed if it appears that

the government has been prejudiced in its ability to respond

to the motion by delay in its filing unless the movant shows

that it is based on grounds of which he could not have had

knowledge by the exercise of reasonable diligence before the

circumstances prejudicial to the government occurred.

(b) SUCCESSIVE MOTIONS. A second or successive

motion may be dismissed if the judge finds that it fails to

allege new or different grounds for relief and the prior

determination was on the merits or, if new and different

grounds are alleged, the judge finds that the failure of the

_ movant to assert those grounds in a prior motion constituted

an abuse of the procedure governed by these rules.

R „ & *

RULE 12. Federal Rules of Criminal and Civil Pro-

cedure; Extent of Applicability

If no procedure is specifically prescribed by these rules,

the district court may proceed in any lawful manner not

inconsistent with these rules, or any applicable statute, and

may apply the Federal Rules of Criminal Procedure or the

Federal Rules of Civil Procedure, whichever it deems most

appropriate, to motions filed under these rules.

l4a

FEDERAL RULES OF CIVIL PROCEDURE

Rule 60. Relief From Judgment or Order

(a) Clerical Mistakes. Clerical mistakes in judg-

ments, orders or other parts of the record and errors therein

arising from oversight or omission may be corrected by the

court at any time of its own initiative or on the motion of any

party and after such notice, if any, as the court orders.

During the pendency of an appeal, such mistakes may be so

corrected before the appeal is docketed in the appellate

court, and thereafter while the appeal is pending may be so

corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, etc. On motion and

upon such terms as are just, the court may relieve a party or

a party’s legal representative from a final judgment, order,

or proceeding for the following reasons: (1) mistake, in-

advertence, surprise, or excusable neglect; (2) newly dis-

covered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or ex-

trinsic), misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged, or a prior judgment

upon which it is based has been reversed or otherwise

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

have prospective application; or (6) any other reason

justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time, and for

reasons (1), (2), and (3) not more than one year after the

judgment, order, or proceeding was entered or taken. A

motion under this subdivision (b) does not affect the finality

of a judgment or suspend its operation. This rule does not

limit the power of a court to entertain an independent action

2 —-—ͤ

15a

to relieve a party from a judgment, order, or proceeding, or

to grant relief to a defendant not actually personally notified

as provided in Title 28, U.S. C., § 1655, or to set aside a

judgment for fraud upon the court. Writs of coram nobis,

coram vobis, audita querela, and bills of review and bills in

the nature of a bill of review, are abolished, and the pro-

cedure for obtaining any relief from a judgment shall be by

motion as prescribed in these rules or by an independent

action.

Rule 81. Applicability in General

(a) To What Proceedings Applicable.

s+ „ „* *

(2) These rules are applicable to proceedings for admis-

sion to citizenship, habeas corpus, and quo warranto, to the

extent that the practice in such proceedings is not set forth

in statutes of the United States, the Rules Governing Sec-

tion 2254 Cases, or the Rules Governing Section 2255 Pro-

ceedings, and has heretofore conformed to the practice in

civil actions.

E „ „„ „ *

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.