Amicus Curiae Brief — Gonzalez v. Crosby

No. 04-6432

IN THE

Supreme Court of the United States

AURELIO O. GONZALEZ,

Petitioner.

VS.

JAMES V. CROSBY, JR.,

Secretary, Florida Department of Corrections,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED —

Can Rule 60(b) of the Federal Rules of Civil Procedure be

used to reopen a habeas corpus case after final disposition by

the Court of Appeals, when (1) the petitioner cannot meet the

criteria for a successive petition under AEDPA, and (2) the

state-court judgment is not a miscarriage of justice under the

pre-AEDPA case law standard?

TABLE OF CONTENTS

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I

The Federal Rules of Civil Procedure do not automatically

eRe Cees cons cdesececececces 4

II

FRCP 60(b) does not apply to habeas cases where its effect

is to evade the successive petition statute ............ 7

IE GONG a Shc cocnccdsdeccccccccecs 7

B. The successive petition rule ................. 10

iil

The state’s legitimate interest in finality of the judgment is

the starting point for determining when use of Rule 60(b)

is contrary to the spiritof AEDPA ................. 16

CE EE ee eer 16

B. Applying Harris to Rule 60(b)............... 19

1. Mistake, inadvertence, surprise, and

a ecn sc oceteoccccecceces 19

iv

2. Newly discovered evidence .............. 20

i CE cc eddccacdaccéasudiass 20

Fe 21

5. Satisfaction, reversed prior judgment,

prospective application ................. 21

i GRD 0666s ct ancasncéddasctiewates 22

IV

There is no constitutional doubt in this case ........... 27

V

Use of Rule 60(b) in the present case would be contrary to

Se IO 60:0 ccenceesécaneacnuseduuneat 29

SED 0:0 6 0000000000 5000es6nuussiebeee 30

TABLE OF AUTHORITIES

Cases

Abdur’ Rahman v. Bell, 537 U. S. 88, 154 L. Ed. 2d 501,

es Gs HSE de owecencncdedhsaevsonei 16, 17

Ackermann v. United States, 340 U. S. 193, 95 L. Ed. 207,

Fe ey GE 0.0.0 6660nenckkbetneecaieueees 22

Agostini v. Felton, 521 U. S. 203, 138 L. Ed. 2d 391,

See es a HE IE on-ocdeckcnbaebenstesouenss 21

Andrews v. Deland, 943 F. 2d 1162 (CA10 1991) ...... 13

Angel v. Bullington, 330 U. S. 183, 91 L. Ed. 832,

SF Oe EE coe nbccnddevicdenessusenéues 17

Artuz v. Bennett, 531 U.S. 4, 148 L. Ed. 2d 213,

Se A ee ED vio. n tnncnedndsudeusastucanes 2

Atkins v. Virginia, 536 U. S. 304, 153 L. Ed. 2d 335,

gg eB re 25

Atlantic Coast Line R. Co. v. Locomotive Engineers, 398

U. S. 281, 26 L. Ed. 2d 234, 90 S. Ct. 1739 (1970) ..... 8

Biggins v. Hazen Paper Co., 111 F. 3d 205

SD GE a ce cen dunseecdsccaccesenesducssuses 25

Browder v. Director, Dept. of Corrections of Ill., 434 U. S.

257, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978) ........ 6,7

Calderon v. Thompson, 523 U. S. 538, 140 L. Ed. 2d 728,

118 S. Ct. 1489 (1998) ......... 9, 14, 15, 19, 20, 27, 30

Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640,

SED BCR BSE co cccvcccccccsesecssess 20, 27

Duncan v. Walker, 533 U. S. 167, 150 L. Ed. 2d 251,

122 B. Ce. SEDO CASS) 2 cccccvccccvccccccccccses 9

vi

Ex parte Cabrera, 4 F. Cas. 964 (No. 2278)

SY MED 0.0:5466-4400eddnsneneenescesceeces 28

Ex parte Dorr, 44 U. S. (3 How.) 103,

Fe is ee DED Se ceececsbecncsnngececacess 28

Ex parte Watkins, 3 Pet. (28 U.S.) 193,

PRED wann0660neeeundeseneaeesacns 10

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

rs es EEE a biecncéeseéenusaeesseccedas 27

Felker v. Turpin, 518 U. S. 651, 135 L. Ed. 2d 827,

Pee 15, 17, 28

Gaca v. United States, 411 U. S. 618, 36 L. Ed. 2d 541,

Sy OED n.00 ohn centeccaudedausevesss 24

Gomez v. United States Dist. Court for the Northern

Dist. of Cal., 503 U. S. 653, 118 L. Ed. 2d 293,

Peer TTT eT TT Te 13, 14

Gonzalez v. Crosby, 366 F. 3d 1253

ED Sa odo venceeeeesenccnsevianneees 3, 4, 16

Gonzalez v. Secretary for the Dept. of Corrections,

Fee Fe We CRO NNS GEE he cc edicepesiconescces 3

Harris v. Nelson, 394 U. S. 286, 22 L. Ed. 2d 281,

Ss Gh CED cheer acesercccavensscenss 5,19

Hess v. Cockrell, 281 F. 3d 212 (CAS 2002)........... 22

In re Abdur’ Rahman, 392 F. 3d 174 (CA6 2004) ........ 6

In re Hawthorne, 35 Cal. 4th 40, 24 Cal. Rptr. 3d 189,

SEs SEED cocédeccecceddenetdceseuses 26

Kuhlmann v. Wilson, 477 U. S. 436, 91 L. Ed. 2d 364,

Fe Ge SRN eccnceccevcccsneusscodueves 12

Vii

Liberatore v. McGuiness, No. 96 Civ. 6943, 1998 U. S. Dist.

LEXIS 22842 (SDNY, Oct. 7, 1998) ............... 24

Liljeberg v. Health Services Acquisition Corp., 486 U. S.

847, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988) ...... 22

Lonchar v. Thomas, 517 U. S. 314, 134 L. Ed. 2d 440,

116 S. Ct. 1293 (1996) ........ eee e ee eees 15, 16, 27

Matos v. Portuondo, 33 F. Supp. 2d 317 (SDNY 1999) .. 23

McCleskey v. Zant, 499 U. S. 467, 113 L. Ed. 2d 517,

SER GR PESO ERSOED 6.0 cv ccevccsciocscacsces 10, 12

Pennsylvania Bureau of Correction v. United States

Marshals Service, 474 U. S. 34, 88 L. Ed. 2d 189,

ee ae CED 6. 6 6 eun8ees cedawnercasscedes 15

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

Fa a Ge ED ocabséccnsndcsuaneoetctsac 26

Peterson v. Demskie, 107 F. 3d 92 (CA2 1997) ........ 23

Pitchess v. Davis, 421 U. S. 482, 44 L. Ed. 2d 317,

Se eh SED ors 660d sccavetersdseducdbawe< 7

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

131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995) .......... 17

Rancho Palos Verdes v. Abrams, 544 U.S. __

, Ges NG RAED ob cecediecdaccecesses 5

Reno v. Flores, 507 U. S. 292, 123 L. Ed. 2d 1,

FED ak Gh. DEEN 2b.0c vovesbovctesscccevicss 27

Reyes v. Keane, 90 F. 3d 676 (CA2 1996) ............ 24

Ritter v. Smith, 811 F. 2d 1398 (CA11 1987) ....... 21, 22

Robles v. Senkowski, Mo. 97 Civ. 2798, 1999 U. S. Dist.

LEXIS 11565 (SDNY, July 30, 1999) .............. 24

viii

Rodwell v. Pepe, 324 F. 3d 66 (CAI 2003)............ 18

Roper v. Simmons, 543 U.S. __

es SP Ue sd cencndenseoanseceoawed 29

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

PE SEED cncancedebeccsdetadcsienss 10

Ross v. Artuz, 150 F. 3d 97 (CA2 1998) .............. 23

Rumsfeld v. Padilla, 542 U.S. __, 1248. Ct. 2711,

is eS PEE vnccseetenvdiouevesssons 21

Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989,

ee Ge ED 0c txénsonscisasdsabiedeskois 11

Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148,

83 S. Ct. 1068 (1963) ........ Oe Ore TET ery 11,12

Slack v. McDaniel, 529 U. S. 473, 146 L. Ed. 2d 542,

ee PRP ore eee 17, 19

Spencer v. Kemna, 523 U. S. 1, 140 L. Ed. 2d 43,

See ee i SUE ov dnc-sdedesusnddcusedvveedas 15

State v. Pierre, 572 P. 2d 1338 (Utah 1977) ........... 13

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

140 L. Ed. 2d 849, 118 S. Ct. 1618 (1998) .......... 17

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

A CD bb6 6nd ncdkdndkeebhevaene 11, 18

Thompson v. Calderon, 151 F. 3d 918 (CA9 1998) ...... 9

Tyler v. Cain, 533 U. S. 656, 150 L. Ed. 2d 632,

See Gs ae ED oobebe6eee0teendedeseces 13, 22

United States v. Scott, 437 U. S. 82, 57 L. Ed. 2d 65,

Ss Gs AT COED 6.6.0.6.60 bbc cencesucdenecseeces 8

ix

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

OF ie Oe UT OPED bbs hdc Te ckteredeccecteccess 27

Withrow v. Williams, 507 U. S. 680, 123 L. Ed. 2d 407,

SE Ge TPR IUSED ho 6 ecbecccenscerecvss eeees 10

United States Constitution

ie ee GE BD 6h Es Sbbéupevedescécubes 27

United States Statutes

Be U. ©. C, GED vvccccvcccccccccesccsnces 20

28 U.S.C. § 1254 .....-.-- 000s pebbesdens seeennss 10

BO U,. B.S. BABOO GIRS GE) «oc cccccvcscocccccecess 11

28 U.S. C. §2244(b) ......... 9, 10, 13, 14, 20, 22, 25, 30

Be ee SBR o vendevcecvcceccscetis 2, 9, 20, 23

PP A OEE vb oe eccnvecscctecniadescunscess 10

42 U.S.C. § 1983 ....... pen bevnsoesVeundhetes 14, 15

Judiciary Act of 1789, § 14, 1 Stat. 73 ............005- 28

Pub. L. 94-426 § 1, 90 Stat. 1334 (1976) ...........445. 5

PU Be BEE nce ccc nbaesddevcenseccsdvesessscécss 8

Rules of Court

Pus, Reed Aa, FO FD oc ccccccveveccncceccecesess 10

Ped, Bate Cie, FO GD cccccvcccvcncdecccevccs passim

Fed. Rule Civ. Proc. 81(a)(2) .........0eceeeeeeeees 7,9

Fla. Rule Crim. Proc. 3.850 .............0005 Pe. 2

Rules Governing Section 2254 Cases in the United States

I POEs Fu vinncces desea estanecs 23

Rules Governing Section 2254 Cases in the United States

Ci Pee . enn biecéeteeses es Wes 5,9

Treatises

16 J. Moore, et al., Moore’s Federal Practice

Pt SD cwuseeneuscesuyeiuaenass 19, 20, 21, 22

11 C. Wright, A. Miller, & M. Kane, Federal Practice and

Pe, CUE 5. 6uy0eeesedeeusbaaneseuns 8

Miscellaneous

Advisory Committee’s Notes on Rules Governing Section

2254 Cases in the United States District Courts, Rule 11,

oe Se | TTT Tee TT Tere eT 5

Y. Berra, quoted in J. Bartlett, Familiar Quotations

SE SOD haved eendddedéncen suds eessscees 30

141 Cong. Rec. 15,062, col. 2 (1995) ................ 13

H. R. Rep. No. 1892, 89th — 2d Sess. (1966) ...... 12

S. Rep. No. 1559, 80th Cong., 2d Sess. (1948) ......... 11

S. Rep. No. 1797, 89th Cong., 2d Sess. (1966) ......... 12

- Scheidegger, Habeas Corpus, Relitigation, and

the Legislative Power, 98 Colum. L. Rev. 888

Er errr er et TT Tre ee 10, 28, 29

Statement of Gov. Rick Perry on U. S. Supreme Court Ruling

on Death Penalty (March 1, 2005), http://www.governor.

state.tx.us/divisions/press/pressreleases/PressRelease.2005-

ED 0.0055 555400005 nceeuddeeedtunseness 26

IN THE

Supreme Court of the United States

AURELIO O. GONZALEZ,

Petitioner,

vs.

JAMES V. CROSBY, JR.,

Secretary, Florida Department of Corrections,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional pro-

tections of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

This case involves an attempt to evade Congress’s landmark

reform of habeas corpus law in the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). This law, if properly

implemented, will greatly reduce unnecessary delay in the

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

enforcement of capital punishment and reduce the number of

correct criminal judgments erroneously overturned on federal

habeas corpus. These changes would advance the rights of

victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In 1982, petitioner Aurelio Gonzalez pleaded guilty to

multiple felonies: three counts of robbery with a firearm, one

of armed burglary, and one of armed kidnapping. Brief in

Opp. 2. For these crimes, he was sentenced to 99 years in

prison. He did not appeal, but many years later filed a

postconviction relief motion, denied on September 14, 1994.

See ibid. Florida has a two-year time limitation, with excep-

tions, and a limit on successive motions. See Fla. Rule

Crim. Proc. 3.850(b), (f). Gonzalez filed a successive motion

in November 1996, claiming newly discovered evidence

regarding the validity of his guilty plea. This motion was

denied. Brief for Petitioner 2. The state appellate court

affirmed, and it denied rehearing on May 8, 1997. See ibid.

Petitioner filed his federal habeas petition in June 1997.

See Brief for Petitioner 3 (June 17); Brief in Opp. 3 (June 23).

The precise date is not material. See Brief in Opp. 3, n. 3. The

state asserted both procedural default and statute of limitations,

28 U. S. C. §2244(d), and the District Court dismissed on

statute of limitations on Sept. 9, 1998. Brief in Opp. 3. A

certificate of appealability (COA) was eventually denied and

the appeal dismissed on April 6, 2000.

Five months later, this Court decided Artuz v. Bennett, 531

U. S. 4 (2000), which clarified some aspects of the tolling

provision of §2244(d)(2). Bennett did not, however, directly

address whether a time-barred state petition is “properly filed”

so as to toll the federal statute, an issue presently before this

Court in Pace v. DiGuglielmo, No. 03-9627. The parties in this

case continue to dispute whether the original dismissal was

correct. See Brief in Opp. 4.

On July 30, 2001, almost three years after the original

District Court decision, petitioner filed a motion under Rule

60(b) of the Federal Rules of Civil Procedure based on an

intervening change in the law. See Brief for Petitioner 4. The

District Court denied it, evidently regarding the Court of

Appeals’ action on the appeal as conclusive. See ibid. ACOA

was granted but then vacated by a panel of the Court of

Appeals. Gonzalez v. Secretary for the Dept. of Corrections,

317 F. 3d 1308, 1314 (CA11 2003). The panel quashed the

original COA because it improperly addressed the original

decision rather than the Rule 60(b) motion. /d., at 1312. The

panel declined to issue a new COA on that motion on the

alternative grounds that (1) the successive petition rule applied,

ibid., and (2) even if it did not, Gonzalez clearly did not meet

the “extraordinary circumstances” test for Rule 60(b)(6). /d.,

at 1312-1313.

The Court of Appeals granted rehearing en banc, granted a

COA, and affirmed the denial of the Rule 60(b) motion.

Gonzalez v. Crosby, 366 F. 3d 1253, 1286 (CA11 2004). This

Court granted certiorari on January 14, 2005, limited to the

Rule 60(b) question.

SUMMARY OF ARGUMENT

The Federal Rules of Civil Procedure do not apply to

habeas corpus when their application would be contrary to the

statutes or rules specifically governing habeas, or when they are

unsuited to the specialized needs of this unique procedure. In

particular, Rule 60(b) cannot be used to evade the successive

petition rule. Congress Las decided when a second round of

habeas litigation may be commenced and has established

special procedural safeguards for quickly determining which

cases qualify for a second round. The purpose of this reform is

not to reduce the number of petitions granted on a second

round, which was never the problem, but to preclude the second

round and its delay altogether. Broad consideration of Rule

60(b) motions would defeat the purpose of the statute.

Rule 60(b) does not apply to habeas corpus in any circum-

stance where it defeats the state’s legitimate expectation of

finality that AEDPA was enacted to protect. This includes

nearly all uses of Rule 60(b) to reopen the habeas case after the

normal termination of appellate review.

In the present case, use of Rule 60(b) to reopen the case

over a year after the normal termination would have been

contrary to the spirit of the habeas statutes, and the motion was

properly denied.

ARGUMENT

I. The Federal Rules of Civil Procedure do not

automatically apply to habeas cases.

The principal dissent in the Court of Appeals in this case

illustrates perfectly how so many opinions on the present

question start off on the wrong path and never return to the

correct one. The opinion begins, “Federal Rule of Civil

Procedure 60(b) authorizes the district courts to relieve a party

to a civil action from the force of a final judgment on the

following grounds... .” Gonzalez v. Crosby, 366 F. 3d 1253,

1287 (CA11 2004) (en banc) (Tjoflat, J., dissenting) (emphasis

added). The question nearly screams off the page: yes, but what

about habeas actions? The dissent never addresses this

question. Judge Tjoflat proceeds to a detailed forensic exami-

nation of each tree, without ever checking to see if he is in the

right forest.

Judge Edmonson’s brief dissent similarly misses the

threshold question. He approaches the question as one of

reconciling an earlier and later statute which both apply to the

subject, without ever pausing to ask if the earlier one applies.

See id., at 1286-1287. The principle of “giv[ing] both of the

laws Congress has approved their fullest possible force,” id., at

1286, is simply inapplicable when one of those laws does not,

by its own force, apply to the subject at hand. See Rancho

Palos Verdes v. Abrams, 544 U.S. __ (No. 03-1601, Mar. 22,

2005) (slip op., at 6, n. 2) (canon against implied repeal

inapplicable to question of whether newly created right with its

own remedy is also enforceable through older, more general

remedy).

Although habeas corpus is nominally a civil proceeding, —

that label is “gross and inexact.” Harris v. Nelson, 394 U. S.

286, 293-294 (1969). “Essentially, the proceeding is unique.”

Id., at 294. As originally promulgated, the Federal Rules of

Civil Procedure (“Civil Rules”) had “very limited application

to habeas corpus proceedings.” /d., at 295. Civil Rule 81(a)(2)

simply continued the application of civil rules to habeas

proceedings to the extent they had been applied before the

promulgation of the rules, but not further. J/d., at 294. To the

extent the Civil Rules introduced procedural innovations, such

as broad discovery, they did not apply to habeas. See id., at

295. The Harris Court also noted “the unsuitability of applying

to habeas corpus provisions which were drafted without

reference to its peculiar problems.” /d., at 296. Discovery as

it exists in federal civil litigation was unsuited, because it

would “do violence to the efficient and effective administration

of the Great Writ.” /d., at 297.

Unlike the principle that governs when earlier and later

statutes both apply to the same case, no direct conflict with

habeas statutes or rules is needed to render a Civil Rule

inapplicable to habeas. Harris did not find that the civil

discovery rules were in direct conflict with anything in the

habeas statutes. It was enough that “their specific provisions

are ill-suited to the special problems and characteristics of such

proceedings.” Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts (“Habeas Rules”)

was enacted seven years later, see Pub. L. 94-426 § 1, 90 Stat.

1334 (1976), and it was “intended to conform with the Supreme

Court’s approach in the Harris case.” Advisory Committee’s

Notes on Habeas Rule 11, 28 U. S. C., p. 479 (2000 ed.). Any

proper analysis of whether a Civil Rule applies to habeas

through Habeas Rule 11 must therefore consider the principles

of Harris and its progeny. Yet petitioner’s brief treatment of

the subject does not, see Brief for Petitioner 10-11, the dissents

in the Court of Appeals in this case do not, the Sixth Circuit’s

en banc opinion in /n re Abdur 'Rahman, 392 F. 3d 174 (2004)

does not, and the other circuit cases collected by petitioner do

not. See Brief for Petitioner 10-11, n. 7. Circuit cases which

simply ignore the principles established by this Court for

determining whether and how to apply a Civil Rule to habeas

corpus have little, if any, persuasive value.

Petitioner claims Browder v. Director, Dept. of Corrections

of Ill., 434 U. S. 257, 263, n. 8 (1978) “assume[s] that rule

60(b) applies in habeas corpus cases,” Brief for Petitioner 10,

but in fact that footnote simply says that the Court was not

deciding any Rule 60 question, because the party who might

have made a Rule 60 motion disclaimed any reliance on that

rule. Petitioner stands on firmer ground with his contention

that the concurring opinion assumed Rule 60(b) applies to

habeas, see Browder, supra, at 272-274 (Blackmun, J., concur-

ring), but a concurring opinion is not a precedent even for its

holdings, much less its assumptions.

Browder is really about whether Civil Rules 52(b) and 59

apply to habeas corpus, see 434 U. S., at 265, and its methodol-

ogy for answering that question reinforces Harris. The issue

was whether the 10-day limit on motions for a new trial or to

amend the judgment applied. See id., at 261, and n. 5. The

Browder Court held they did, not because as Civil Rules they

necessarily applied, but rather because they were consistent

with and suited to the policies behind habeas procedure.

“Rule 59 in particular is based on an ‘interest in speedy

disposition and finality.’ ([Citation.] Although some

aspects of the Federal Rules of Civil Procedure may be

inappropriate for habeas proceedings, see Harris v. Nelson,

supra; Preiser |v. Rodriguez, 411 U.S.475 (1973)], at 495-

496, the requirement of a prompt motion for reconsidera-

tion is well suited to the ‘special problems and character of

such proceedings.’ Harris v. Nelson, supra, at 296.

Application of the strict time limits of Rules 52(b) and 59

to motions for reconsideration of rulings on habeas corpus

petitions, then, is thoroughly consistent with the spirit of

the habeas corpus statutes.” /d., at 271 (emphasis added).

Harris was applied specifically to Rule 60(b) in Pitchess v.

Davis, 421 U.S. 482 (1975) (per curiam). A habeas petitioner

successfully obtained a new trial, but then sought to preclude a

retrial. He used Rule 60(b) to ask the Federal District Court to

change its judgment from a conditional to an unconditional

writ. /d., at 484-485. Under the circumstances, the basis of this

claim could not be exhausted in state court until the post-trial

appeal. See id., at 488. The Court held that Rule 60(b) could

not be used to evade the exhaustion rule. Civil Rule 81(a)(2)

precluded use of the Civil Rules in a manner contrary to the

habeas statutes. “Since the exhaustion requirement is statuto-

rily codified, even if Rule 60(b) could be read to apply to this

situation it could not alter the statutory command.” /d., at 489.

Because there was a direct conflict with the statute on the facts

of the case, there was no need in Pitchess to address the more

general question of whether and when epplication of Rule 60

w ould be “consistent with the spirit of the habeas statutes.”

The absence of a direct conflict with the habeas rules and

statutes is a necessary condition to apply a Civil Rule to habeas,

but it is not sufficient. The rule in question must be consistent

with the purposes and policies of those rules and statutes in a

more general sense as well.

II. FRCP 60(b) does not apply to habeas cases where its

effect is to evade the successive petition statute.

A. Civil Rule 60.

Rule 60 “attempts to strike a proper balance between the

conflicting principles that litigation must be brought to an end

and that justice should be done.” 11 C. Wright, A. Miller, &

M. Kane, Federal Practice and Procedure § 2851, p. 227 (2d ed.

1995) (cited below as “Wright & Miller”). Rule 60 was drafted

with civil litigation in mind and therefore strikes that balance

in the way thought appropriate for civil litigation. Criminal

cases also raise the problem of balance between finality and

error correction. The factors to be considered differ, however,

and so a different rule addressing those concerns has evolved

for habeas corpus. That different rule is the successive petition

rule.

Taken as a whole, criminal procedure tilts the fi-

nality/justice balance sharply in the defendant’s favor. For the

criminal defendant, exclusively among all litigants, a favorable

jury verdict is absolutely final and unreviewable. No matter

how clearly erroneous, an acquittal cannot be overturned. See,

e.g., United States v. Scott, 437 U. S. 82, 91 (1978). Criminal

defendants alone, of all litigants, can have the lower federal

courts review claims that state courts have erred on federal

questions. The prosecution cannot, and civil litigants cannot.’

See, e.g., Atlantic Coast Line R. Co. v. Locomotive Engineers,

398 U. S. 281, 286 (1970). Even when that review is con-

cluded, res judicata as such does not apply to the denial of

habeas relief. See infra, at 11.

The claim that unsuccessful habeas petitioners should be

afforded relief from judgment on the same basis as civil

litigants must be evaluated in this context. The entire proceed-

ing is an additional layer of review that no other litigant

receives, and the judgment from which relief is sought is not res

judicata.

The direct effect of a judgment denying habeas relief is

merely to leave the status quo intact. There is nothing to

relieve. The prisoner remains in prison under the original

2. On March 21, 2005, Congress made an extraordinary exception for one

specific case, Pub. L. 109-3, but the foregoing statement remains true

for all others.

judgment of conviction, not the judgment denying habeas. The

need for relief only arises from the indirect effects. A second

petition is subject to the limits of 28 U. S. C. §2244(b). In

addition, because the statute of limitations is not tolled during

the pendency of the first federal petition, see Duncan v. Walker,

533 U. S. 167, 181-182 (2001), the second petition might be

time-barred. Congress has considered those possibilities and

made its decision as to the appropriate balance. Exceptions for

newly discovered facts, see 28 U. S. C. §§ 2244(b)(2)(B)\(i),

(d)(1)(D), retroactive mew rules, see §§2244(b\(2)(A),

(d)(1)(C), state-created impediments, see § 2244(d)(1)(B), and

actual innocence, see § 2244(b)(2)(B)(ii), are built into the

statute where and to the extent Congress thought them appro-

priate.

In the Thompson case, both this Court and the Ninth Circuit

noted possible extreme cases where the state would have no

legitimate expectation of finality. A party who procured a

judgment by fraud upon the court would not have a legitimate

judgment, Calderon v. Thompson, 523 U. S. 538, 557 (1998),

and hence no entitlement to the finality of the judgment. Where

the petitioner cannot meet the exceptions to the statutory rule

because the state’s misconduct prevents him from doing so, that

_ misconduct could conceivably estop the state from asserting the

bar. See Thompson v. Calderon, 151 F.3d 918, 921, n. 3 (CA9

1998). Such rare circumstances can be addressed when and if

they arise. The present case is a routine request to relitigate

based on new legal authority. Nothing in petitioner’s Rule

60(b) argument would confine use of the rule to any narrow

subset of habeas cases. To hold that Rule 60(b) is generally

applicable to the large class of cases where at least one claim

was denied on the basis of default or statute of limitations

would be to create a second, broad set of exceptions in addition

to the narrow ones Congress decided upon when the issue was

squarely before it. That is precisely what Harris, Pitchess,

Civil Rule 81(a)(2), and Habeas Rule 11 forbid.

10

B. The Successive Petition Rule.

The rule on consideration of a second petition after denial

of the first has evolved from unlimited allowance at common

law to prohibition with only narrow exceptions under 28

U.S.C. §2244(b). This evolution has been a response to other

changes in the law of habeas corpus.

At common law, the denial of habeas relief had no preclu-

sive effect at all, and the petitioner could apply to a different

judge for de novo reconsideration. See McCleskey v. Zant, 499

U.S. 467, 479 (1991). This rule was needed because there was

no appellate review of the denial. See ibid. The rule was not

a burden because of the extremely narrow scope of issues

which could be considered on habeas. “As applied to criminal.

cases, habeas corpus was a pretrial remedy. ... After convic-

tion, the writ was not available to attack judgments of courts of

competent jurisdiction.” Scheidegger, Habeas Corpus,

Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888,

928 (1998) (footnotes omitted). The rule that denial of habeas

was not res judicata presented no threat whatever to the finality

of convictions, because the judgment of conviction itself was

res judicata. See id., at 930; Ex parte Watkins, 3 Pet. (28 U.S.)

193, 203, 209 (1830).

Both the unreviewability of habeas decisions and the

narrow scope of habeas issues are long gone, and the wide-open

allowance of successive petitions is gone with them. Denial of

federal habeas relief is reviewable by appeal to the Court of

Appeals, 28 U. S. C. §2253, rehearing en banc in that court,

Fed. Rule App. Proc. 35, and certiorari in this Court. See 28

U.S. C. § 1254. The scope of issues now includes almost all

constitutional questions, the only exception being the Fourth

Amendment exclusionary rule. See, e.g., Withrow v. Williams,

507 U. S. 680 (1993) (declining to extend rule of Stone v.

_ Powell, 428 U. S. 465 (1976) to Miranda claim). Constitu-

tional claims. furthermore, have been vastly expanded beyond

the basic requirements of fundamental fairness. See Rose v.

Lundy, 455 U.S. 509, 543-544 (1982) (Stevens, J., dissenting).

11

In capital cases, enormous amounts of time and money go into

litigating alleged noncompliance with a complex and constantly

changing web of rules governing the discretionary sentencing

decision, rules having nothing whatever to do with guilt or

eligibility for the death sentence. There is no limit to the

number of such challenges creative lawyers could bring if

allowed to do so, and hence without a successive petition rule

capital sentences could never be carried out.

From the early twentieth century through the Antiterrorism

and Effective Death Penalty Act of 1996, the law of habeas

corpus evolved in the direction of greater finality, although not

without “ ‘some backing and filling.’ ” Cf. Teague v. Lane,

489 U. S. 288, 308 (1989) (plurality opinion) (quoting Fay v.

Noia, 372 U.S. 391, 411-412 (1963)). Salinger v. Loisel, 265

U. S. 224 (1924) was the first recognition of the successive

petition rule in this Court. While rejecting the government’s

argument that a prior denial was res judicata, see id., 2t Z30, the

Court held, “Among the matters which may be considered, and

even given controlling weight, are . . . (b) a prior refusal to

discharge on a like application.” /d., at 231. This was a very

broad discretionary rule with-no firm criteria for application.

The Court indicated it would have affirmed if the District Court

had denied relief on this basis, but it proceeded to the merits

because the District Court had done so. /d., at 232. Either

resolution was proper.

When Congress enacted a new judiciary code, it included

§ 2244 on finality of determination. The original section was

the same as the present subdivision (a), except that it applied to

both state and federal prisoners. See 28 U. S. C. § 2244 (1964

ed.). In keeping with Salinger, the rule was discretionary. See

S. Rep. No. 1559, 80th Cong., 2d Sess., 9 (1948).

Sanders v. United States, 373 U.S. 1 (1963) was the final

chapter of “a trilogy of ‘guideline’ decisions” on habeas corpus.

Id., at 23 (Harlan, J., dissenting). “The over-all effect of this

trilogy . . . [was] to relegate to a back seat . . . the principle that

there must be some end to litigation.” Jbid. Sanders sharply

12

limited the Salinger rule regarding successive applications. See

id., at 15.

Congress soon acted to reduce successive petitions. The

problem was not the number of cases in which relief was being

granted but rather the burdens of the litigation. See H. R. Rep.

No. 1892, 89th Cong., 2d Sess., 5 (1966); S. Rep. No. 1797,

89th Cong., 2d Sess., 2 (1966). In addition, Congress found

“disconcerting . . . the delays in executing State court sentences

in capital cases as a result of habeas corpus applications seeking

review of State court action... .” H.R. Rep. No. 1892, supra,

at 5. Various proposals were considered to deal with this

problem. See id., at 5-6. One that survived in the final bill was

“to add to section 2244 . . . provisions for a qualified applica-

tion of res judicata.” /d., at 8. Subdivision (b) was added to

provide that “after an evidentiary hearing on the merits of a

factual issue, or after a hearing on the merits of an issue of law

... asubsequent application . . . need not be entertained” unless

based on a new ground which was not deliberately withheld or

otherwise abusive.

Despite the clear intent of Congress to change the law in the

direction of greater finality, see S. Rep. No. 1797, supra, at 2,

it was another 20 years before this Court reexamined Sanders.

In Kuhlmann v. Wilson, 477 U. S. 436 (1986), a plurality

adopted Judge Friendly’s “colorable claim of innocence”

requirement for successive petitions. /d., at 454. “A ‘succes-

sive petition’ raises grounds identical to those raised and

rejected on the merits on a prior petition.” /d., at 444, n. 6.

Five years later, McCleskey v. Zant reexamined the abuse-of-

the-writ aspect of Sanders and adopted the cause-and-prejudice

test for second petitions with claims omitted trom the first. See

499 U. S., at 490.

In 1996, Congress decided that Kuhlmann and McCleskey

had not gone far enough in restricting repeated rounds of

habeas litigation. Just as in 1966, the concern was not with

excessive grants of relief, but rather with the burden and

especially the delay from the multiple rounds of litigation. In

13

one notorious case, the McCleskey rule had not been clear

enough to prevent the issuance of a stay of execution to

entertain a fifth federal challenge to a death sentence on an

obviously defaulted claim. See Gomez v. United States Dist.

Court for the Northern Dist. of Cal. (Harris), 503 U. S. 653,

653-654 (1992) (per curiam). Senator Hatch also cited the

Andrews case, which took 18 years and 30 appeals. See 141

Cong. Rec. 15,062, col. 2 (1995). That case took almost three

years on the second round of federal habeas. See Andrews v.

Deland, 943 F.2d 1162, 1168 (CA10 1991) (petition filed July

19, 1989), cert. denied, 502 U. S. 1110 (1992), rehearing

denied, 503 U. S. 967 (March 30, 1992). This was in a case

involving “no question of Andrews’ participation in the

crimes,” 943 F. 2d, at 1186, an almost unbelievably horrific

case of sadistic torture and multiple murder. See State v.

Pierre, 572 P. 2d 1338, 1343-1344 (Utah 1977).

To preclude more than one round of federal review in all

but the rarest cases, Congress clamped down hard on “second

or successive” habeas corpus applications in its revision of

§ 2244(b). See Tyler v. Cain, 533 U. S. 656, 661-662 (2001).

Subdivision (1) forbids without exception claims “presented in

a prior application,” i.e., what has traditionally been called a

“successive” petition. Subdivision (2) applies to claims “not

presented in a prior application,” i.e., the “abuse of the writ”

scenario. Only two narrow exceptions are allowed: (1)

retroactive new rules; and (2) newly discovered facts and actual

innocence. The references to the “merits” in former subdivi-

sion (b) are not present in the new subdivision.

Congress’s intent to preclude the second round of litigation,

not merely to enable the state to prevail in that round, is further

implemented by the extraordinary procedural measures in

subdivision (b)(3). Subdivision (b)(3)(A) requires leave of the

Court of Appeals to even file the petition, and subdivision

(b)(3)(B) requires that decision to be made by a three-judge

panel. This is to preclude shopping for a single judge to

authorize filing and grant a stay. Subdivision (b)(3)(D) requires

14

a decision in 30 days, and (b)(3)(E) forbids rehearing or

certiorari review of that decision. The clear purpose here is

that, in nearly all cases, the attempt to begin a second or

subsequent round of federal review will be over in 30 days. In

most capital cases, the state should be able to set an execution

date the month following final disposition of the first federal

habeas petition.

The intent of Congress would be subverted if the limits on

successive habeas petitions could be circumvented merely by

invoking a different procedural device. Twice this Court has

rebuffed such attempts. In Gomez, the habeas petitioner

withheld his challenge to the use of cyanide gas until the eve of

execution and then filed the claim as a civil rights action under

42 U.S.C. § 1983. See 503 U. S., at 653. “This action is an

obvious attempt to avoid the application of McCleskey v. Zant,

499 U. S. 467 (1991) to bar this successive claim for relief.”

Ibid. The Court held that Harris had made no showing of

cause, ibid., impliedly holding that the McCleskey standard

applied.

Calderon v. Thompson, supra, is similar. “Thompson filed

a motion with the Court of Appeals to recall its mandate

denying habeas relief.” 523 U. S., at 546. He also filed a Rule

60(b) motion in the District Court. See id., at 547. An en banc

panel of the Court of Appeals recalled the mandate. It “asserted

it did not recall the mandate on the basis of Thompson’s later

motion for recall, but did so sua sponte on the basis of the

claims and evidence presented in Thompson’s first federal

habeas petition.” /d., at 548.

Regarding recalls of habeas mandates in response to a

petitioner’s motion, the Thompson Court said,

“In a §2254 case, a prisoner’s motion to recall the

mandate on the basis of the merits of the underlying

decision can be regarded as a second or successive applica-

tion for purposes of § 2244(b). Otherwise, petitioners could

evade the bar against relitigation of claims presented in a

15

prior application, § 2244(b)(1), or the bar against litigation

of claims not presented in a prior application, § 2244(b)(2).

If the court grants such a motion, its action is subject to

AEDPA irrespective of whether the motion is based on old

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

ones (in which case § 2244(b)(2) would apply).” /d., at 553

(emphasis added).

This statement is dictum, since the Court went on to hold

that the sua sponte recall on the original petition was not

subject to §2244(b). See id., at 554. Even so, it is an impor-

tant statement of principle, and one on which the Court

appeared to be unanimous. See id., at 569, n. 1 (Souter, J.,

dissenting).

Gomez and Thompson are applications of the more general

principle that when Congress has provided a specific procedure

for the resolution of particular controversies and placed

limitations on it, those limitations cannot be evaded simply by

choosing a different and more general procedure. Even though

a challenge to the fact or duration of custody by state officers

may fall within the broad language of the civil rights remedy

statute, 42 U. S. C. § 1983, it cannot be used in lieu of habeas

for such a challenge. See Spencer v. Kemna, 523 U.S. 1, 20

(1998) (Souter, J., concurring). Despite the broad wording of

the All Writs Act, it cannot be used when another “statute

specifically addresses the particular issue at hand... .”

Pennsylvania Bureau of Correction v. United States Marshals

Service, 474 U. S. 34, 43 (1985).

The successive petition rule is a “modified res judicata

rule,” well within the power of Congress to enact. See Felker

v. Turpin, 518 U. S. 651, 664 (1996). Courts can weigh the

competing interests of habeas petitioners and the state in the

absence of a statute or in construing a vague statute, as this

Court did in Sanders, Kuhlmann, and MeCleskey, see Lonchar

v. Thomas, 517 U. S. 314, 323 (1996), but the balance struck

judicially is always subject to legislative revision. Congress

has deliberately moved the mark, and the wisdom of its choice

16

is not for courts to decide. See id., at 328. Neither is the statute

a mere inconvenience to be evaded.

Congress meant to give habeas petitioners one round of

federal review, i.e., decision by the district court, appeal to the

court of appeals, and certiorari to this Court. The end of that

first round was meant to be the end in all but the rarest cases,

with a highly expedited process for determining whether a case

was one of the rare ones. A holding that Rule 60(b) is generally

available would destroy this system. Even if nearly all Rule

60(b) motions are denied, unless they are subject to the require-

ments of §2244(b) the litigation of them will become the

second round of review that Congress meant to prevent.

III. The state’s legitimate interest in finality of the

judgment is the starting point for determining when use

of Rule 60(b) is contrary to the spirit of AEDPA.

A. Finality and AEDPA.

In his dissent in Abdur’Rahman v. Bell, 537 U. S. 88

(2002), Justice Stevens endorsed the approach of Judge Tjoflat,

drawing the line between Rule 60(b) motions that challenge the

integrity of the habeas proceeding itself and those that assert

new or newly bolstered attacks on the underlying criminal

judgment. See id., at 94-96 (quoting Mobley v. Head, 306 F. 3d

1096, 1100-1105 (CA11 2002) (dissenting opinion)). Judge

Tjoflat proffers the same distinction in the present case,

designating the former type a “true Rule 60(b) motion.”

Gonzalez v. Crosby, 366 F. 3d 1253, 1292 (CA11 2004)

(dissenting opinion).

This proposal would draw the line at a point which is utterly

irrelevant to the purpose Congress had in mind when it enacted

AEDPA. The overarching theme of AEDPA is to enhance the

finality of criminal judgments. Congress was deeply dissatis-

fied with the way federal courts had entertained one proceeding

after another, and it resolved to limit habeas petitioners to “one

bite of the apple.” See Brief for Criminal Justice Legal

17

Foundation as Amicus Curiae in Bell v. Thompson, No. 04-

514, pp. 10-13 (“CJLF Thompson Brief’), http://www.cjlf.org/

briefs/ThompG. pdf.

Nothing in the language or purpose of AEDPA limits its

enhanced finality to cases where the federal court reaches the

petitioner’s underlying claim, as opposed to those decisions

based on procedural default or the statute of limitations. Just

the opposite, Congress repealed references to “the merits” in

the earlier statute. See supra, at 13. The successive petition

limit is “a modified res judicata rule,” Felker v. Turpin, 518

U. S. 651, 664 (1996), and res judicata applies just as much to

a decision that a claim is permanently barred as it does to a

decision that a claim was meritless from the beginning. See

Angel v. Bullington, 330 U. S. 183, 190 (1947); see also Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (dismissal on

statute of limitations was res judicata, cannot be reopened even

when Congress directed reopening). Cases involving decisions

that federal relief cannot be granted yet, as opposed to decisions

that federal relief cannot be granted at all, are inapposite. Cf.

Slack v. McDaniel, 529 U. S. 473, 487 (2000) (unexhausted);

Stewart v. Martinez-Villareal, 523 U.S. 637, 644-645 (1998)

(premature).

Under Judge Tjoflat’s proposed separation, decisions on

procedural grounds would never be truly final. The travesty of

the Robert Alton Harris execution that Congress specifically

sought to ensure would never happen again, see supra, at 13;

CJLF Thompson Brief 10-11, could happen again. Among

claims that might be considered “seeking relief from the federal

court’s final order entered in a habeas proceeding,” Abdur 'Rah-

man, 537 U. S., at 94 (dissent), include claims that the court

erred in deciding it could not reach the underlying claim

because of (1) the statute of limitations, (2) procedural default,

(3) failure to develop facts in state court, or (4) nonretroactivity

of the claimed rule of law. In other words, use of virtually any

of the tools that Congress and this Court have provided to limit

second-guessing of the state court by the federal court would

18

transform a judgment in the state’s favor into a mere tentative

ruling, reopenable at any time on a Rule 60(b) motion. While

the First Circuit expresses confidence that “the district courts

will be able to sift wheat from chaff without undue difficulty,”

Rodwell v. Pepe, 324 F. 3d 66, 71 (2003), Congress does not

share this confidence. It enacted AEDPA precisely because it

was exasperated with the federal courts’ insufficient respect for

the need for finality in criminal judgments.

Amicus Abdur’ Rahman contends that Rule 60(b) motions

are only filed in a “miniscule fraction” of all habeas cases. See

Brief for Abu-Ali Abdur’Rahman as Amicus Curiae 4-5

(“Abdur’ Rahman Brief”). However, the methodology of this

survey does not capture all 60(b) motions, see id., at 5, n. 6, and

probably misses most of them. More importantly, the survey

does not separate the cases Congress was most interested

in—capital cases—from the others. In capital cases, 60(b)

motions are not rare. In Amicus CJLF’s survey of executed

capital judgments in the Ninth Circuit, there were three such

motions denied by the District Court and appealed to the Court

of Appeals out of nineteen cases, nearly one-sixth of the total.

When combined with motions to recall the mandate (or to

further stay it and reconsider after this Court’s denial of

certiorari) plus civil rights actions, there was some substantial

attempt to evade Congress’s successive petition limit in nearly

every case. See CJLF Thompson Brief, Appendix A.

Amicus Abdur’ Rahman also quibbles between attacking the

finality of the underlying conviction and attacking the finality

of the habeas judgment. Abdur ’Rahman Brief 4, n. 5. Any

ongoing proceeding that forces the state to marshal its resources

to protect its judgment, see Teague v. Lane, 489 U. S. 288, 310

(1989), is an attack on the finality of the judgment. In capital

cases, any ongoing proceeding that lengthens the stay of

execution, delaying and denying justice, is an attack on the

finality of the judgment. Abdur’Rahman’s distinction has no

difference.

19

B. Applying Harris to Rule 60(b).

Harris v. Nelson, 394 U.S. 286, 298 (1969), held that, even

though the discovery provisions of the Civil Rules did not

directly apply to habeas corpus, courts could nonetheless order

discovery adopting such procedures as are suited to habeas.

Habeas Rule 6 subsequently codified the specific holding of

Harris for discovery, while Habeas Rule 1 1 codified its general

approach to adoption of Civil Rules.

The same approach is in order for Civil Rule 60. Looking

at how that rule is applied in civil cases, is each application

consistent with the goal of Congress to enhance the finality of

criminal proceedings? The simplest case is presented by Rule

60(a), correction of clerical mistakes. “The State can have little

interest . . . in preserving a [judgment] not in accordance with

the actual decision rendered by the court.” Calderon v.

Thompson, 523 U.S. 538, 557 (1998). Rule 60(b) presents the

more difficult questions.

Preliminarily, two overall requirements of Rule 60(b) are

worth noting. First, the movant must show an arguably

meritorious claim. See 16 J. Moore, et al., Moore’s Federal

Practice § 60.24, pp. 60-77 to 60-79 (3d ed. 2000); cf. Slack v.

McDaniel, 529 U. S. 473, 478 (2000) (COA on procedural

point requires at least debatable merit on both procedural claim

of error and underlying constitutional claim). Second, all six

clauses of Rule 60(b) require a motion within a reasonable

time, and the first three have an additional, strict, one-year cut-

off. See Moore’s, supra, § 60.65, at 60-198 to 60-203.

1. Mistake, inadvertence, surprise, and excusable neglect.

An entry of judgment against a pro se prisoner who is

unable to respond due to the circumstances of his incarceration

is an example of a situation warranting relief under this clause.

See id., § 60.41[1][b], at 60-87 to 60-88. As applied to habeas,

this would typically happen when the respondent is at least

partly at fault, and the one-year limit prevents indefinite delay

20

of true finality. The situation will not arise in capital cases,

where § 2254 petitioners always have the right to counsel. See

21 U.S. C. § 848(q)(4)(B). Errors of counsel are generally not

cognizable under this clause, see Moore’s, supra, § 60.41[2], at

60-95 to 60-96, and entertaining a Rule 60(b) motion on

grounds of ineffective assistance of habeas counsel would

circumvent the rule of Coleman v. Thompson, 501 U. S. 722,

753-754 (1991).

The circuits are divided on whether a mistake of law by the

district court is a ground for relief under Rule 60(b)(1), and

those that do allow it generally construe “reasonable time” to

mean within the time to appeal. See Moore’s, supra,

§ 60.41[41], at 60-99 to 60-113. Allowing the district court to

correct a patent error before appeal that would surely be

grounds for reversal on appeal makes good sense in terms of

efficiency. See id., at 60-106. Once the appeal is under way,

the appeal itself is the efficient and proper way to correct a legal

error. Once the appeal is over, the intent of Congress to create

“a modified res judicata rule,” see supra, at 15, forbids use of

this ground to obtain an otherwise forbidden second round of

litigation.

2. Newly discovered evidence.

Congress expressly considered the question of newly

discovered evidence and provided when it would be grounds

for a successive petition and to restart the statute of limitations

clock. See 28 U. S. C. §§2244(b)(2)(B), (d)(1)(D). Rule

60(b)(2) cannot be used to strike the balance at a different

point.

3. Fraud on the court.

If the state procures a judgment by fraud, it has no legiti-

mate interest in the finality of its illegitimate judgment. See

Calderon v. Thompson, 523 U. S., at 557.

21

4. Void judgment.

Rule 60(b)(4) is unnecessary in many cases, see Moore’s,

supra, §60.44[b], at 60-140 to 60-141, and so it is for the

petitioner in habeas corpus. If the first petition was denied by

a court lacking jurisdiction, the second is simply not successive,

and no relief from the first is required. The State, on the other

hand, may need this relief. See Rumsfeld v. Padilla, 542 VU. S.

__, 1248. Ct. 2711, 2715-2717, 159 L. Ed. 2d 513, 524-527

(2004) (release ordered by court lacking subject-matter jurisdic-

tion).

5. Satisfaction, reversed prior judgment, prospective

application.

The “satisfaction” prong of this clause has no application to

a denial of habeas relief. There is nothing to satisfy. Reversed

prior judgment could be a legitimate use for Rule 60(b)(5), or

it could be unnecessary, depending on how this Court resolves

Johnson v. United States, No. 03-9685.

Unjust prospective application applies only to habeas

judgments granting relief. Denial of injunctive relief does not

have prospective application. See Moore’s, supra,

§ 60.47[1][e], at 60-160 to 60-161. On the other hand, where

the custodian has been ordered to release the prisoner or give

him a new trial, it would be unjust to require prospective

application if new authority comes down before the trial

negating the basis of the judgment. Cf. Agostini v. Felton, 521

U. S. 203, 215 (1997) (60(b)(5) relief from injunction due to

change in law). For example, in Ritter v. Smith, 811 F. 2d

1398, 1400-1401 (CA11 1987), the Court of Appeals had

directed that a conditional writ of habeas corpus issue, requiring

a new sentencing hearing, based on a holding that the sentenc-

ing statute was unconstitutional. Before the resentencing was

conducted, this Court held in another case that the statute in

question was constitutional. Ritter held that the state was

entitled to 60(b) relief, although mistakenly placing ti

22

under 60(b)(6). See id., at 1403. As Agostini now makes clear,

the correct clause is (b)(5).

6. Catch-all.

The difficult problem, and the great danger, is the “catch-

all” provision of clause 6: “any other reason justifying relief

from the operation of the judgment.” What justifies relief is a

value-laden judgment, and the potential for evasion of AEDPA

by judges who strongly disagree with Congress’s value choices

is great.

This Court has already established that the broad language

of Rule 60(b)(6) may not be used to evade the limits on the

other clauses. See Liljeberg v. Health Services Acquisition

Corp., 486 U. S. 847, 863, and n. 11 (1988). “Extraordinary

circumstances” are required. See id., at 864; Ackermann v.

United States, 340 U.S. 193, 202 (1950).

The majority position is that a change in decisional law

does not amount to “extraordinary circumstances” even in the

civil cases to which Rule 60(b)(6) directly applies. See

Moore’s, supra, § 60.48[5], at 60-180 to 60-183; Hess v.

Cockrell, 281 F. 3d 212, 216, and n. 18 (CAS 2002) (habeas

case relying on civil precedents). Certainly it is not a ground

for relief as applied to habeas corpus. Congress has expressly

considered when such a change will be a ground for relief: new

rules of constitutional law made retroactive on habeas by this

Court. See 28 U. S. C. §2244(b\(2M(A); Tyler v. Cain, 533

U. S. 656, 662 (2001). To reopen a criminal case after the

normal end of one full round of habeas review based on any

lesser change in case law would be to strike the balance at a

different point than the one chosen by Congress.

Amicus Abdur’ Rahman presents several examples of cases

where application of Rule 60(b) to habeas is purportedly

necessary to prevent injustice and consonant with the spirit of

the habeas statutes. In some, application of Rule 60(b) is,

indeed, appropriate. In others, other remedies are available and

appropriate. In still others, application of Rule 60(b) is contrary

ee =

23

to the purpose of AEDPA, gives too little finality to the

judgment, and is improper.

Abdur’ Rahman’s first example is himself. This case was

thoroughly briefed when it was before this Court, and the

argument need not be repeated here. See Brief Amicus Curiae

for Criminal Justice Legal Foundation in Abdur ‘Rahman v.

Bell, No. 01-9094, http://www.cjlf.org/pdf/Abdur’R.pdf. For

the reasons explained in our prior brief, habeas was correctly

denied in that case. Abdur’Rahman personally bound and

blindfolded the victims, rendering them helpless for slaughter.

See id., at 2. The miscarriage of justice in Abdur’Rahman’s

case is the fact that the judgment remains unexecuted 19 years

after the crimes.

Most of the other examples involve the Second Circuit’s

changing interpretation of the AEDPA statute of limitations, 28

U. S. C. §2244(d), to pre-AEDPA cases. In Peterson v.

Demskie, 107 F. 3d 92, 93 (1997), the Second Circuit indicated

that in such cases the petition needed to be filed within a

“reasonable time” after enactment of AEDPA on April 24,

1996, but that prisoners who had already waited several years

at that point need not be given the full additional year. Then in

Ross v. Artuz, 150 F. 3d 97, 102-103 (1998), the Second Circuit

decided that these petitioners would have the full year, until

April 23, 1997. Either interpretation is reasonable, and either

promptly upon exhaustion of his state remedies. At least since

the adoption of Habeas Rule 9(b) in 1976, prisoners have been

on notice that delayed petitions might be dismissed if they

prejudiced the state, and no one who waited years after exhaus-

tion of state remedies could legitimately claim to be unfairly

surprised.

Matos v. Portuondo, 33 F. Supp. 2d 317 (SDNY 1999) is

an example of a legitimate use of Rule 60(b) to correct a

mistake of law by the District Court that would surely have

resulted in reversal on appeal. Ross came down five days after

the District Court dismissed the petition under Peterson, and

24

the petitioner filed his 60(b) motion 16 days after dismissal,

within the time to appeal. This is simple judicial efficiency.

Thére was no point in going through the motions of an appeal

when the result was obvious. Granting relief in this situation

does not impair any legitimate expectation of finality, and it is

proper under Rule 60(b)(1), not (b)(6). See supra, at 20.

Robles v. Senkowski, No. 97 Civ. 2798, 1999 U. S. Dist.

LEXIS 11565 (SDNY, July 30, 1999) is an example where

another remedy was available and should have been used. The

appeal was already pending when Ross was decided, but the

Court of Appeals dismissed it because petitioner had neither

paid the filing fee nor moved to proceed in forma pauperis. See

id., at *2-*3. The available, correct procedure was to cure and

reinstate the appeal, at which point the Court of Appeals would

have reversed and remanded under Ross. See Gaca v. United

States, 411 U.S. 618 (1973) (per curiam), Reyes v. Keane, 90

F. 3d 676, 677-678, 681 (CA2 1996) (reinstating appeal of pro

se habeas petitioner in similar circumstances).

Liberatore v. McGuiness, No. 96 Civ. 6943, 1998 U. S.

Dist. LEXIS 22842 (SDNY, Oct. 7, 1998), is an example where

Rule 60(b)(6) was improperly used to defeat the finality of the

judgment. Liberatore was convicted of violent crimes in 1987.

See id., at *1. He received review of his claims in a published

decision of the Appellate Division. See ibid. (citing People v.

Liberatore, 561 N. Y. S. 2d 832 (1990)). He then waited five

years after exhaustion of state remedies to file a federal habeas

petition. The District Court dismissed the habeas petition as

untimely on September 20, 1996. See id., at *2. If this

dismissal was erroneous, there was a remedy by appeal, but

petitioner did not appeal. See ibid. Sometime after Ross,

petitioner filed his Rule 60(b) motion, which makes it well after

the strict one-year cut-off for 60(b)\(1). See id., at *3-*4.

Contrary to the District Court’s decision in this case, there were

no “extraordinary circumstances” justifying the drastic action

of reopening a final judgment. A simple change in case law is

not “extraordinary” by any definition. It happens all the time.

25

In civil cases, it is the nature of res_judicata that a judgment

once final decides the matter between the parties, even if a

subsequent development in case law indicates that the decision

was erroneous. Even in civil cases, Rule 60(b)(6) is not an

open-ended invitation to reopen any judgment any time a

precedent on which it is based is overruled. “Indeed, the

common law could not safely develop if the latest evolution in

doctrine became the standard for measuring previously resolved

claims. The finality of judgments protects against this kind of

retroactive lawmaking.” See Biggins v. Hazen Paper Co., 111

F. 3d 205, 212 (CAI 1997).

In Liberatore, there was no compelling need to extend the

temporal reach of Ross to rescue a dilatory petitioner who

waited years to file his federal habeas petition and did not

bother to appeal its dismissal. The state had won its case at

trial, successfully defended its judgment in the state courts, and

successfully defended it again under the then-prevailing circuit

rule on federal habeas. Congress has decided that in such

circumstances further reconsideration will be strictly limited to

a very small set of exceptionally compelling cases. See 28

U.S. C. § 2244(b). There are a great many cases that would be

considered incorrectly decided under later case law that do not

qualify for these strict criteria. Congress has decided that

finality in criminal law is important enough that it outweighs

the need for error correction in all but the cases specified. By

deciding that a simple change in procedural law “justifies”

relief under Rule 60(b)(6), the District Court substituted its

value judgment for that of Congress.

Petitioner proffers the example of claims of mentally

retarded inmates on death row under Afkins v. Virginia, 536

U. S. 304 (2002) as a reason why Rule 60(b)(6) motions must

be allowed long after the normal end of the first habeas petition.

See Brief for Petitioner 42-44. However, the “functional

equivalent” approach of petitioner and the cases he relies on is

neither necessary nor sufficient to address the Atkins cases.

26

Under this approach, a “true” or “proper” 60(b)(6) motion

addresses a defect in the habeas process itself, as distinguished

from a newly asserted or reasserted ground for attacking the

state judgment. The latter is the functional equivalent of a

second or successive habeas petition. See Brief for Petitioner

19-20. A petitioner claiming to be mildly retarded and claiming

that this condition categorically excluded him from the death

penalty would have been denied relief before Atkins in a

perfectly correct habeas proceeding. Every district and circuit

court was duty-bound to apply the not-yet-overruled Supreme

Court precedent on point, Penry v. Lynaugh, 492 U.S. 302, 334

(1989). A post-Atkins Rule 60(b)(6) motion by such a peti-

tioner does “address directly the underlying state court proceed-

ings,” Brief for Petitioner 19, and this is the functional equiva-

lent of a second or successive habeas petition under petitioner’s

own authorities. The proposed rule is therefore not sufficient

to redress the Atkins claims.

The proposed rule is also not necessary for these claims.

There has been no state-court rebellion against Atkins. State

courts and legislatures are fashioning procedures and hearing

the claims. See, e.g., /n re Hawthorne, 35 Cal. 4th 40, 43-44,

105 P. 3d 552, 554 (2005) (allowing fourth habeas petition and

transferring case for evidentiary hearing). Executive clemency

is also available for any death row inmate who either was under

18 at the time of the crime or claims to be mentally retarded.

See, e.g., Statement of Gov. Rick Perry on U. S. Supreme

Court Ruling on Death Penalty (March 1, 2005),

http://www.governor.state.tx.us/divisions/press/pressreleases/

PressRelease.2005-03-01.3948 (directing parole board evalua-

tion in response to Roper v. Simmons, 543 U.S. __ (No. 03-

633, Mar. 1, 2005)). If and when a retarded or juvenile

murderer actually faces execution and is denied any remedy,

this Court can decide whether the Constitution requires one.

The remedy need not be Rule 60(b) or, for that matter, federal

habeas corpus.

a a a a ro wee” j

27

IV. There is no constitutional doubt in this case.

The value judgment implicit in petitioner’s “constitutional

doubt” argument is a belief that every state prisoner should get

a federal court ruling on the merits of his underlying claim, and

the courts should bend every rule to see that he gets it. That

belief was the guiding light of this Court’s habeas corpus

jurisprudence at one time under the regime of Fay v. Noia, 372

U. S. 391 (1963), but that day is long gone. Fay and its

approach to habeas were steadily eroded by a long series of

decisions, see e.g., Wainwright v. Sykes, 433 U. S. 72, 90

(1977), until it was formally overruled in Coleman v. Thomp-

son, 501 U. S. 722, 750 (1991). Coleman stated expressly what

had long been implied: Fay had underestimated the importance

of finality. See ibid. Congress not only endorsed this revised

policy determination, but it decided this Court had not gone far

enough in the direction of finality. The successive petition rule

enacted by Congress is considerably more stringent than this

Court’s pre-AEDPA cases, see Calderon v. Thompson, 523

U. S. 538, 558 (1998), and the new statute of limitations is

more stringent that the pre-AEDPA Habeas Rule 9(b), as

construed in Lonchar v. Thomas, 517 U. S. 314, 328 (1996).

Petitioner’s call to return to Fay’s imperative of deciding the

merits of every underlying claim is an anachronism. Indeed,

now that Congress has spoken, this Court could not return to

Fay even if it were inclined to do so. Absent a constitutional

mandate, the decision of Congress on a question of policy is

final.

Apparently aware that the intent of AEDPA is against him,

petitioner turns to the last refuge for interpretive lost causes:

the doctrine of constitutional doubt. See Reno v. Flores, 507

U. S. 292, 314, n. 9 (1993); Brief for Petitioner 32-39. In

habeas cases, this inevitably takes the form of an appeal to the

Suspension Clause, U. S. Const., Art. I, §9, cl. 2. Like the

monster in a series of bad horror movies, this argument keeps

coming back no matter how many times it appears to have been

killed. It is high time for this Court to bury it for good.

28

There are two simple reasons why the Suspension Clause

creates no doubt whatsoever of the constitutionality of AEDPA.

First, the Suspension Clause creates no obligation for Congress

to extend federal habeas to state prisoners. Second, the

Suspension Clause creates no obligation to make habeas corpus

available as a means of collateral attack on the criminal

judgments of courts of general jurisdiction. Either is sufficient

to eliminate any doubt.

On federal habeas corpus ad subjiciendum for state prison-

ers, the historical record is crystal clear. The First Congress

flatly prohibited it. See Judiciary Act of 1789, § 14, 1 Stat. 73,

81-82. Although at least one federal court chafed at the

restriction, see Ex parte Cabrera, 4 F. Cas. 964, 965-966 (No.

2278) (CCD Pa. 1805), no doubts were expressed as to its

constitutionality. See Scheidegger, Habeas Corpus, Relitiga-

tion, and the Legislative Power, 98 Colum. L. Rev. 888, 932

(1998); see also Ex parte Dorr, 44 U. S. (3 How.) 103, 105

(1845) (following statute, no constitutional doubts raised or

expressed).

On the use of habeas corpus as a collateral attack on the

judgment of a court of general jurisdiction, the record is equally

clear. The writ was so clearly unavailable for that purpose at

the time of the Founding that it was 41 years before anyone

even tried. See Scheidegger, 98 Colum. L. Rev., at 929, n. 280.

When someone finally did, the attempt was definitively

rejected. See id., at 929-930 (discussing Ex parte Watkins, 28

U.S. (3 Pet.) 193 (1830)).

In Felker v. Turpin, 518 U. S. 651, 663 (1996), this Court

effectively acknowledged that the constitutional doubt argu-

ment was baseless on the original understanding of the Suspen-

sion Clause. The Felker Court did not resolve whether the

Suspension Clause could have somehow “evolved” to make a

constitutional mandate of something the founding generation

flatly forbade. Instead Felker held that the limitation on

successive petitions was consistent with even a hypothetical

evolved Suspension Clause. See id., at 664. That hypothetical

=e

29

should be addressed and rejected in the present case. Whatever

argument might be made for constitutional evolution in such

vague and expansive phrases as “unreasonable search” or “cruel

and unusual punishment,” see, e.g., Roper v. Simmons, 543

U.S.__ (No. 03-633, Mar. 1, 2005) (slip op., at 6), there is no

credible argument for such amendment by interpretation here.

The Suspension Clause used a legal term of art, habeas corpus,

that referred to a specific procedure for a specific purpose:

getting people out of jail who are held there illegally before trial

or without trial. The fact that this procedure later evolved into

a mode of collateral attack on final convictions is no ground for

similarly expanding the constitutional mandate, nor is it any

ground for mandating federal review of state convictions, when

Article III clearly empowers Congress to set the jurisdictional

bounds of the “inferior” courts it creates. See Scheidegger, 98

Colum. L. Rev., at 918-919.

The First Congress had the power to forbid federal habeas

for state prisoners altogether. No amendment has rescinded

that power. The First Congress created a writ for federal

prisoners that did not include collateral attack on judgments of

courts of general jurisdiction. No amendment has rescinded

that power. The greater power to forbid collateral review

includes the lesser power to offer it on limited terms, so long as

the limitations are not based on suspect classifications or other

unconstitutional discrimination. See Scheidegger, 98 Colum.

L. Rev., at 953-957. There is no doubt about the constitutional-

ity of AEDPA under any reasonable interpretation, and hence

the doctrine of constitutional doubt has no application to this

case.

V. Use of Rule 60(b) in the present case would be

contrary to the spirit of AEDPA.

Applying the foregoing principles is straightforward.

Petitioner’s claims were reviewed and rejected by the state

courts. The federal courts rejected his petition as untimely in

30

a decision that was a reasonable interpretation of the statute and

may very well have been correct. He had his one bite at the

federal-court apple, which does not necessarily include determi-

nation of the merits of the underlying claim. The state’s

reasonable expectation of finality attached when the Court of

Appeals denied a certificate of appealability and petitioner

sought no further review of that decision. Cf. Calderon v.

Thompson, 523 U. S. 538, 556 (1998).

To allow the use of Rule 60(b) to reopen the habeas case

based on a mere change in procedural case law would be

contrary to the purpose of AEDPA to strictly limit such

reopenings. Petitioner has not alleged a miscarriage of justice

in the sense that he is actually innocent of the offenses for

which he is in prison. Cf. id. at 558; 28 U. S. C.

§ 2244(b)(2)(B)(ii). Absent such a claim, and credible evidence

to support it, the federal habeas case should be over when it is

over. Cf. Y. Berra, quoted in J. Bartlett, Familiar Quotations

903 (15th ed. 1980).

CONCLUSION

The decision of the Court of Appeals for the Eleventh

Circuit should be affirmed.

April, 2005

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation