Amicus Curiae Brief — Gonzalez v. Crosby

NO: 04-6432

| Supreme Court, US

FILED

(a) FEB 2 5 2005

OFFICE OF iHb Ch EKA

IN THE

SUPREME COURT OF THE UNITED STATES

AURELIO O. GONZALEZ,

Petitioner,

JAMES V. CROSBY, JR.

Secretary for the Department of Corrections,

Respondent.

On Writ of Certiorari

to the Court of Appeals for the Eleventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JOSHUA L. DRATEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

14 Wall Street, 28th Floor

New York, New York 10005

(212) 732-0707

DAVID OSCAR MARKUS*

HIRSCH & MARKUS, LLP

9130 S. Dadeland Bivd., 1200

Miami, Florida 33156

(305) 670-0077

Of counsel :

M. AYA GRUBER

HOWARD M. WASSERMAN

KAREN PITA-LOOR

LILIAN APONTE-MIRANDA

PROFESSORS OF LAw,

FLORIDA INTERNATIONAL

UNIVERSITY COLLEGE OF LAW

Miami, Florida 33199

(305) 348-8345

Counsel for Amicus Curiae

*counsel of record

QUESTIONS PRESENTED BY AMICUS CURIAE

1. Did the Court of Appeals’ interpretation of the

Antiterrorism and Effective Death Penalty Act of

i 1996 (“AEDPA”) effect an improper implied

| repeal of Rule 60 of the Federal Rules of Civil

Procedure?

2. Did the Court of Appeals’ interpretation of

AEDPA raise grave constitutional concerns?

Pe pt © FE ST Pe nt

TABLE OF CONTE

Page

QUESTIONS PRESENTED BY AMICI CURIAE ......c00sssessseeeeeeees i

TABLE OF AUT RRURRE TID cccccccssssscsscsesessenetenisssnsiinmeinnnamaian iv

INTERESTS OF ARICT CURGAR cccccccsscorsscsstsvensssistiimnteamemamanial l

SUMMARY OF ARGUMENT.....:0:c0scssccsscsscsssssessossseoressossessossooses l

ABISUBEEIINT .10:ccscccccsccsvsccensessessssensesesineneemeian 2

I. AEDPA’s limitations on successive habeas applications

G56 nat Repeal Ruthe OB, .cccccoccsesssescsesseesenmenataniammaa 2

A. AEDPA did not repeal Rule 60(b) by implication

because there is no irreconcilable conflict between

ABDP A GG Rube GBD cccsscsreccscscestenstnsieeaaaane 4

B. Allowing Rule 60(b) relief will not circumvent the

restrictions in AEDPA and this Court has an

obligation to adopt the interpretation that preserves

Rule 60(b) to the greatest extent ..............:cceceeeeeeees 14

(1) Rule 60(b) retains a distinct scope that does

not overlap or conflict with § 2244.......... 15

(2) The Eleventh Circuit’s treatment of Rule

60(b) is not a repeal to the “minimum extent

oe, 19

C. AEDPA’s limitations on _ successive habeas

applications do not evidence congressional intent to

displace a court’s traditional equitable power to

MOET y 108 OG RRIITID .ncccccccsscccsssnentesieneneaiamina 20

ili

II. This Court should interpret AEDPA and Rule 60(b)

consistently to avoid a construction that raises grave

CONStitUtIONAl CONCETMS ............0seseeeeereeerreeeneneenenens 23

A. Interpreting AEDPA as prohibiting Rule 60(b) relief

raises grave concerns over unconstitutional suspension

FE Gi ceccensccenceenscesscecnccsccssscccccscczssnsessscesscssseseees 23

B. Interpreting AEDPA as prohibiting Rule 60(b) relief

raises grave concerns over denial of due process of

Tio siaenscieapeneusnnpicnnenenncsnssennasenesnesnesnevsesnenenncaneaseseenne 27

iv

TABLE OF AUTHORITIES

Cases

Abdur'Rahman v. Bell, 392 “.3d 174

GEER GPa eeessantensscneiinennnniitianiteminnmesienl passim

Abdur'Rahman v. Bell, 537 U.S. 88 (2002)............:++: passim

Addington v. Texas, 441 U.S. 418 (1979).......ccccccceceeeeeseees 28

Ageia’ R Patbam, S21 U.S. BEB (IGT) veccccceccccsccsccssessosees 16

Allen v. McCurry, 449 U.S. 90 (1980) .....c..cccccccccseseseeseeenees 5

Joint Anti-Fascist Refugee Comm. v. McGrath,

Oe Ce SE Qa eranccsensanistiitiniiteaniianinnainantinnaians 28

Arizona v. California, 460 U.S. 605 (1983) ........cccccccceeees 13

Artuz v. Bennett, 531 U.S. 4 (2000)..............ccccccccccesseseeeess 17

Bankers Mortgage Co. v. United States,

Se OP ee Cre cicicetensttteesncniitaiianieeenna 20

Bonin v. Vasquez, 999 F.2d425

GI, Fe crernsnsenecnmanstenineecenmniemnnisisentiinaiiieinti 27

Branch v. Smith, 538 U.S. 254 (2003)..........ccecceceeceseeeeseeeees 2

Browder v. Director, 434 U.S. 257 (1978)..........ces0+es0+0: 4,5

Calderon v. Thompson, 523 U.S. 538 (1998).. 17, 21, 22, 29

Califano v. Yamasaki, 442 U.S. 682 (1979) ......cccccccccceceeeee 3

Callihan v. Schneider, 178 F.3d 800

ee 3

Clark v. Suarez Martinez, 125 S. Ct. 716 (2005)..........-++ 23

Cleveland Bd. of Educ. v. Loudermill,

Be 27

Cook County v. United States ex rel. Chandler, |

SSB UB. 28D CRREED ccccccusccesesscsscsessssessssnssssseessessassssnssneeeess 3

Cornell v. Nix, 119 F.3d 1329 (8th Cir. 1997) .........cc0-cceeee+ 5

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

Dl) 3,19

Davis v. United States, 411 U.S. 233 (1973)............cccceeeees 4

Dretke v. Haley, 124 S. Ct. 1847 (2004) ........ccccceccesseereeeeees 8

Engle v. Isaac, 456 U.S. 107 (1982) ..........ccesceeserseeeeees 8, 26

Fay v. Noia, 372 U.S. 391 (1963) ........ssssesssersereereensees 7,8

Felker v. Turpin, 518 U.S. 651 (1996) ..........c0cccesseees passim

Ford v. Wainwright, 477 U.S. 399 (1986)..........:000++ 6, 26

Francis v. Henderson, 425 U.S. 536 (1976)........-.-+-++++ 25, 27

Gonzalez v. Director, 366 F.3d 1253

(1 Beds Cale. SEBE) Gem WaRG) occcccccccecscessseccssssscessssssscessses passim

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004)...........0esssse0es a4

Harris v. Nelson, 394 U.S. 286 (1969).........0ccecseeseeeeeeeenees 4

vi

Hecht Co. v. Bowles, 321 U.S. 321 (1944)........ccccccceeeeeeees 21

Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995) .0.........:cccccceeeeee 6

Johnson v. Avery, 393 U.S. 483 (1969) .........cccccccceeeeeeeeees 24

Klapprott v. United States, 335 U.S. 601 (1949) ...........000+. 4

Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982)..5, 18

Kuhlmann v. Wilson, 477 U.S. 436 (1986).............. 9,10, 13

Liljeberg v. Health Serv. Acquisition Corp.,

SP eae BOF QD ccenccenecsanmnsenimnenncemecmenpminnin 11, 16

Lonchar v. Thomas, 517 U.S. 314 (1996) .............000++ passim

Matarese v. LeFevre, 801 F.2d 98 (2d Cir. 1986)............... 5

Mathews v. Eldridge, 424 U.S. 319 (1976) ..........cccccceseee0 28

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

Mohammed v. Sullivan, 866 F.2d 258 (8th Cir. 1989)........ 5

Montana v. United States, 440 US 147 (1979)............ 12, 13

Mooney v. Holohan, 294 U.S. 103 (1935)............cccccceeeeeee 28

Morton v. Mancari, 417 U.S. 535 (1974)........cccccccee0ee 3,14

Muniz v. United States, 236 F.3d 122

Ge SI eirtsnecectenaseentenmmnesommsecssnmnmacscennmaesnemnmnetie 13

Murray v. Carrier, 477 U.S. 478 (1986) ..............0000. passim

National Archives and Records Admin. v. Favish,

136 FS. Ce. 1STD GRBBG) ncccccscccescsesreecrcssecscscsssssssescsssscsonsssoosss 6

New York City Transit Auth. v. Beazer,

44D UZ. SEB CID TBP cccceccsscssccsssesssscesnecesssscssnsscsssnssssossonssaes 23

Parklane Hosiery v. Shore, 439 U.S. 322 (1979)........000++ 12

Paterno v. Lyons, 334 U.S. 314 (1948) .......cccccccceseeeeeeeeeees 28

Pitchess v. Davis, 421 U.S. 482 (1975).....cccccceeceeseeeeeereeneees 5

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)...4, 20

Porter v. Warner Holding Co., 328 U.S. 395 (1946)........ 21

Posadas v. National City Bank of N.Y.,

FBG UB. GOT CRGBGD ccccecccccsccsccssssssccscessssssnsssssssnssssnsoosans 3,14

Radzanower v. Touche Ross & Co.,

OS 0, passim

Rail Act Cases, 419 U.S. 102 (1974)......:ccccceseeeneeeeees passim

Rasul v. Bush, 124 S. Ct. 2686 (2004) ........cccccceereeeereeeenes 24

Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987)..........:.-0+0 5

Rodriguez v. Artuz, 990 F. Supp. 275

1) 4) Se 18, 25

Rodriguez v. Mitchell, 252 F.3d 191

8 ee passim

Rodriguez v. United States, 480 U.S. 522 (1987)..........-++. 12

Vili

Rodwell v. Pepe, 324 F.3d 66 (1st Cir. 2003) ............ passim

Rosa v. Senkowski, 1997 WL 436484, at 5

Ges Wo SRY P cccscnsemnscnsssccunssnnneeanesnsnssessanensnecensnccesneeasiite 18

Salinger v. Loisel, 265 U.S. 224 (1924) .....cccccccccseeeeseereeenees 9

Sanders v. United States, 373 U.S. 1 (1963).............. passim

Sawyer v. Whitley, 50S U.S. 333 (1992)..........:ccc0e000 passim

Silver v. New York Stock Exch.,

PE te RS GD tevcccnnsennsssessscescnsnenscsssnsemmnemmneensiiens 5

Slack v. McDaniel, 529 U.S. 473 (2000).........:cc000000 passim

St. Martin Evangelical Lutheran Church v. South Dakota,

Se i FON ee ntcientsinicnenendsncipsntencsiniimiseciiiadnibicapeanaete 23

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) .6, 9, 26

Stone v. Powell, 428 U.S. 465 (1976) .........cccccccssesseseeeeeeeees 7

Swain v. Pressley, 430 U.S. 372 (1977) ......ccccccccceeseceeeeeees 25

SVs Fa, SEF-OB. BSD CIF ccccccscscecsncsccsnscscssssnccsscscesee 3

United States v. Beggerly, 524 U.S. 38 (1998)............ 11,14

United States v. Clark, 445 U.S. 23 (1980) .0.....:.ccccceeeeeee 23

United States v. Mendoza, 464 U.S. 154 (1984) ............... 12

United States v. United Cont’! Tuna Corp.,

SSS US. 366 CRG TE ccccecesocesscacesonssesessssosesensasenescsesssssesetes 12

~

ix

Wainwright v. Norris, 958 F. Supp. 426

GBD. AGM. BDC cccccccccescssccoccssssssscesssssssccsssncssecessesssneenssseseets 6

Weinberger v. Romero-Barcelo,

GBB UB. SEB CRBS ccccscscccvscssscssssccscssccssssscsssscsmnencenese 21, 22

Wong Doo v. United States, 265 U.S. 239 (1924)......... 9,12

Woodford v. Garceau, 538 U.S. 202 (2003)........ccecesceeeees 10

Constitutional Provisions

USB. Comat. G08. 6, § D ncccccsccccssccsscsessscssssessssssnssssssssssasesessssen 24

U.S. Comat. GORE. VY ccccccocccccccscsccsssccsssossccsssscccssssossosososonss 27

Rules and Statutes

Fae, BR. Civ. FP. GD .ccccccccocccccccsscccesosesscnsccosossscancoossooosses passim

Bed, BR. Cake. BP. BB ecqrccccccecccscccccssccssesesenssesssssssnsesscensssssosses 22

FB UTS 6 ETB cccccccccccssscsecssccsccsscssssnsncssnssnssonsencsnessconseneeses 5

BB UBC. § FOTAGAD ncccocccsccececcsccssecssssscescsesessssscsssssssossoneoses 4

FB UBC. § FO POGD cccccccscccccceccvsccscsecesssscsssssscqenesessncsscessessees 4

BB UBC. § FBG ccccccoccsccscsesssscssrescesesscscsssssonsossesoesesses passim

BB UBL. § FEBS cccccccccsccecssssscccsccscsscssesssscssasconssessonsees passim

Fed. R. Habeas Corpus 11 ..........ccsccscsssseseerseerseeseensenseeneees 3

Miscellaneous

Hertz & Liebman, Federal Habeas Corpus Practice and

Procedure, § 7.2d, at 341 (4th ed. 2001)

BRIEF AMICI CURIAE OF THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

The NACDL, a nonprofit corporation, is the only

national bar association working in the interest of public and

private criminal defense attorneys and their clients. NACDL

was founded in 1958 to ensure justice and due process for

persons accused of crimes; foster the integrity, independence

and expertise of the criminal defense profession; and

promote the proper and fair administration of justice."

NACDL has 10,000 members nationwide -- joined by 80

state and local affiliate organizations with 28,000 members --

including private criminal defense lawyers, public defenders

and law professors committed to preserving fairness within

America’s criminal justice system. The: American Bar

Association recognizes NACDL as an affiliate organization

with full representation in its House of Delegates. In this

case, the NACDL is concerned that adoption of the Eleventh

Circuit’s holding will deprive hundreds of federal habeas

petitioners any ability to obtain a valid review of the merits

of their claims challenging the legality of their detentions.

SUMMARY OF THE ARGUMENT

In finding that restrictions on second or successive

habeas applications established by the Antiterrorism and

Effective Death Penalty Act of 1996 (““AEDPA”), 28 U.S.C.

§2244, preclude use of Rule 60(b) of the Federal Rules of

Civil Procedure to reopen a final judgment rendered by a

federal district court, the Eleventh Circuit held, in effect, that

AEDPA worked an implied repeal of Rule 60(b). It is well-

settled that repeals by implication are disfavored. This Court

' No counsel for any party has authored this brief in whole or in

part, and no person or entity, other than NACDL, made any monetary

contribution to its preparation or submission. -See Rule 37.6, Sup. Ct.

Rules. The parties have consented to the filing of this brief, and letters of

consent have been lodged with the Clerk of the Court. Rule 37.3(a).

2

will therefore not find an existing statute or codified rule of

civil procedure to be silently overruled by a new statute,

unless the statutes are in irreconcilable conflict. Moreover,

this Court has an obligation to construe both provisions to

avoid conflict. The Court also must adopt the interpretation

of AEDPA that avoids grave constitutional concerns.

The Court should not find that AEDPA impliedly

repealed Rule 60(b) because no irreconcilable conflict exists.

The judicially created limitations on successive and abusive

habeas applications, established prior to AEDPA and

codified in stricter form, long have co-existed with motions

to vacate judgments. Successive habeas petitions and Rule

60(b) motions are distinct applications to the court, which

serve different purposes, raise different issues, seek different

relief, and thus do not overlap. A second or successive

petition is one filed after an initial petition was resolved on

the merits, asserting claims of unconstitutionality in a

petitioner’s state conviction, sentence, or detention. A Rule

60(b) motion, on the other hand, seeks to reopen a judgment,

not simply to revisit the merits, but on the ground that a

defect in the federal habeas proceeding deprives that

judgment of legitimacy or integrity. Further, Rule 60(b) is

the codification of the trial court’s traditional equitable

power to control its judgments, a power this Court should be

especially reluctant to hold was abrogated, absent express

language to that effect. Finally, the Eleventh Circuit’s

holding that AEDPA impliedly repealed Rule 60(b) in the

habeas context raises grave constitutional concerns over

suspension of the writ of habeas corpus and violation of due

process of law.

ARGUMENT

a

AEDPA’S LIMITATIONS ON SUCCESSIVE

HABEAS APPLICATIONS DID NOT REPEAL RULE

60(b).

It is a cardinal rule of statutory construction that

repeals by implication are not favored. See Branch v. Smith,

3

538 U.S. 254, 273 (2003); Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 442 (1987); TVA v. Hill, 437

U.S. 153, 189 (1978); Radzanower v. Touche Ross & Co.,

426 U.S. 148, 154 (1976); Rail Act Cases, 419 U.S. 102, 133

(1974). Where there is total silence, as in this case, finding

repeal is even more dangerous. “Inferring repeal from

legislative silence is hazardous at best, and error seems

overwhelmingly likely in the notion” that a statute

wordlessly redefined a pre-existing law. Cook County v.

United States ex rel. Chandler, 538 U.S. 119, 132 (2003).

There are two narrowly drawn exceptions to the prohibition

against repeals by implication: (1) Where provisions in the

two acts are in irreconcilable conflict, such that the later act

to the extent of the conflict constitutes an implied repeal of

the earlier one; and (2) if the later act covers the whole

subject of the earlier one and is clearly intended as a

substitute. See Posadas v. National City Bank of N.Y., 296

U.S. 497, 503 (1936).

The interpretive canon that implied repeals are

disfavored applies not only to a purported repeal of a pre-

existing statute but also to a purported to repeal of a rule of

procedure. See Califano v. Yamasaki, 442 U.S. 682, 699

(1979) (stating that the Court will apply Federal Rules of

Civil Procedure to all civil matters absent “a direct

expression by Congress”); Callihan v. Schneider, 178 F.3d

800, 802 (6th Cir. 1999) (stating that “restriction on

Congress’s power to amend the federal rules is the general

disfavor with which courts view implicit amendments or

repeals”). Given that the habeas provisions of AEDPA do

not cover the entire subject of relief from prior judgments,

such that they can be said to constitute a substitute for Rule

60(b), the important question is whether there is an

irreconcilable conflict between § 2244(b)(1) and Rule 60(b).

To imply repeal, there must be a “positive repugnancy”

between the statutes that cannot be reconciled. Rail Act

Cases, 419 U.S. at 134.7

? This approach mirrors the dictates of Rule 11 of the Federal

Rules Governing 28 U.S.C. § 2254 Cases, which provides, “The Federal

Rules of Civil Procedure, to the extent that they are not inconsistent with

4

A.

AEDPA did not repeal Rule 60(b) by

implication because there is no irreconcilable

conflict between AEDPA and Rule 60(b)

Rule 60(b) is a codified rule of civil procedure that

“vests power in courts adequate to enable them to vacate

judgments whenever such action is appropriate to

accomplish justice.” Klapprott v. United States, 335 U.S.

601, 614-15 (1949). Rule 60(b) is the product of the Court’s

effort to codify and expand pre-existing common law writs

to make courts’ power to reopen their judgments “complete.”

See Fed. R. Civ. P. 60 advisory committee’s note to 1948

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

233-34 (1995). This Court enacted Rule 60(b) pursuant to

the delegation of the Rules Enabling Act, 28 U.S.C. §

2072(a), and Congress is deemed to have adopted the rule by

declining to disapprove of it, pursuant to 28 U.S.C. §

2074(a). See Davis v. United States, 411 U.S. 233, 242

(1973).

In the instant case, the issue is whether certain

provisions of AEDPA affect a repeal of Rule 60(b) in the

federal habeas context. Section 2244(b)(1) states, “a claim

presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed.” 28 U.S.C. § 2244(b)(1).

The plain language neither references Rule 60(b) itself nor

otherwise evidences congressional consideration of district

courts’ power to grant motions to vacate, reconsider, or grant

these rules, may be applied, when appropriate, to petitions filed under

these rules.” See Browder v. Director, 434 U.S. 257, 270 (1978)

(holding Rules 52(b) & 59 governing time limits applied to petitioner’s

motion to reconsider habeas judgment because of “the settled conformity

of habeas corpus and other civil proceedings with respect to time limits

on post judgment relief”); cf. Harris v. Nelson, 394 U.S. 286, 289-90

(1969) (finding broad discovery provisions of Rule 33 inapplicable to

habeas proceedings because they were innovative and because of the

historical lack of such discovery practice in habeas proceedings).

* Petitions that raise new claims are subject to the restrictions in

§ 2244(b)(2) and may be filed in certain circumstances.

5

relief from a judgment. Consequently, § 2244(b)(1) is not a

direct repeal of 60(b), and the only way to construe §

2244(b)(1) as affecting Rule 60(b) is to find a repeal by

implication.

This Court repeatedly has shown an unwillingness to

find irreconcilable conflict and imply repeal, even in cases

involving more specific statutory language and history than

the legislative silence present in this case. See, e.g., Kremer

v. Chem. Constr. Corp., 456 U.S. 461, 469-70 (1982)

(finding provisions of Title VII allowing for federal suit after

“final findings [of] State proceedings” did not repeal 28

U.S.C. § 1738, which requires federal courts to give

preclusive effect to state court judgments); Allen v. McCurry,

449 U.S. 90, 100 (1980) (holding that 42 U.S.C. § 1983, did

not overrule doctrine of preclusion, codified § 1738, despite

legislative history showing that Congress was concerned

with deficient state judgments); Radzanower, 426 U.S. at

155 (holding that venue provision of Securities Exchange

Act did not repeal or amend venue provision of the National

Bank Act); Rail Act Cases, 419 U.S. at 130 (holding that

provisions of Rail Act limiting government payouts to rail

companies did not repeal Tucker Act provisions allowing for

takings suits against government); Silver v. New York Stock

Exch., 373 U.S. 341, 362 (1963) (holding that Securities

Exchange Act scheme of self-regulation did not repeal

Sherman antitrust laws).

The plain language of AEDPA does not indicate an

irreconcilable conflict with Rule 60(b). AEDPA’s silence on

Rule 60(b) is even more compelling in light of the historical

use of the Rule to challenge flawed habeas judgments. See

Browder v. Director, 434 U.S. 257, 263 & n.8 (1978)

(assuming availability of Rule 60(b) relief from habeas

judgments); Id. at 273-74 (Blackmun, J., concurring);

Pitchess v. Davis, 421 U.S. 482, 490 (1975) (reading Rule 60

and 28 U.S.C. § 2254 together); Cornell v. Nix, 119 F.3d

1329, 1332-33 (8th Cir. 1997); Hunt v. Nuth, 57 F.3d 1327,

1339-40 (4th Cir. 1995); Mohammed v. Sullivan, 866 F.2d

258, 260 (8th Cir. 1989); Ritter v. Smith, 811 F.2d 1398,

1401 (11th Cir. 1987); Matarese v. LeFevre, 801 F.2d 98,

106-07 (2d Cir. 1986). Congress is presumed to legislate

6

against a background of existing law, scholarship, and

history. National Archives and Records Admin. v. Favish,

124 S. Ct. 1570, 1579 (2004). In addition, the legislative

history of AEDPA, although admittedly sparse in all

contexts, does not indicate that § 2244(b)(1) was intended to

eclipse Rule 60(b).

Some lower courts have held that there is an

irreconcilable conflict between AEDPA and Rule 60(b)

because § 2244(b)(1)’s ban on second or successive same-

claim applications broadly prohibits a petitioner from filing

anything in district court after his initial habeas petition has

been dismissed. See, e.g., Wainwright v. Norris, 958 F.

Supp. 426, 431 (E.D. Ark. 1996) (dismissing under §

2244(b)(1) a claim that was not “successive” because it was

_ a “second” filing in the district court). This Court, however,

rejected such an interpretation in Stewart v. Martinez-

Villareal, 523 U.S. 637, 645 (1998), holding that a second

same-claim habeas petition filed after the district court had

dismissed the initial petition’ as premature was not a

successive application within the meaning of § 2244(b).

Rejecting the state’s argument that the petition was

successive because it followed a dismissed petition, this

Court observed, “This may have been the second time that

respondent had asked the federal courts to provide relief on

his Ford claim, but this does not mean that there were two

separate applications, the second of which was necessarily

subject to § 2244(b).” Jd. at 643. The Court relied on pre-

AEDPA decisional law construing the meaning of

“successive application” to conclude that a same-claim

petition filed by a prisoner whose first federal habeas petition

had been dismissed for technical procedural reasons, is

simply n»t a successive application. Id. at 644-45.

Thus, this Court has refused to endorse the

conclusion that § 2244(b)(1) precludes the filing of any

motion in the district court after resolution of the initial

habeas petition. The question then becomes whether §

* Defendant had asserted that he was incompetent to be executed

and requested relief pursuant to Ford v. Wainwright, 477 U.S. 399 (1986).

Martinez-Villareal, 523 U.S. at 640.

7

2244(b)(1), while not intended to prevent re-filing all claims,

nonetheless was intended to preclude Rule 60(b) motions.

An understanding of the evolution of the meaning of

“successive application” in habeas corpus jurisprudence

leads inexorably to the conclusion that Congress did not

intend to prevent Rule 60(b) relief from erroneous habeas

judgments.

This Court has stated that the meaning of “successive

application,” as used in AEDPA, can be determined by

reference to pre-AEDPA law. See Slack v. McDaniel, 529

U.S. 473, 483 (2000) (“AEDPA’s present provisions . . .

incorporate earlier habeas corpus principles.”); Felker v.

Turpin, 518 U.S. 651, 664 (1996) (stating that AEDPA

“codifies some of the preexisting limits on successive

petitions”). “The phrase ‘second or successive petition’ is a

term of art given substance in [the Court’s] prior habeas

corpus cases.” Slack, 529 U.S. at 476.°

Historically, habeas petitioners possessed broad

ability to file repetitious petitions and claims. Habeas corpus

jurisprudence evolved on a backdrop of filing permissiveness

because “the government must always be accountable to the

judiciary for a man’s imprisonment.” Fay v. Noia, 372 U.S.

391, 402 (1963). The Court recognized that “conventional

notions of finality in criminal litigation cannot be permitted

to defeat the manifest federal policy that federal

constitutional rights of personal liberty shall not be denied

without the fullest opportunity for plenary federal judicial

review.” Id. at 424; see also Stone v. Powell, 428 U.S. 465,

519 (1976). Eventually, however, this Court identified three

types of claims excepted from the permissive filing

standards: “(a) successive claims that raise grounds identical

to grounds heard and decided on the merits in a previous

petition; (b) new claims, not previously raised which

constitute an abuse-of-the-writ ; [and] (c) procedurally

defaulted claims in which the petitioner failed to follow

applicable state procedural rules in raising the claims.”

> There is no definition of “second or successive application” in

the legislation or legislative history of AEDPA.

Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (emphasis in

original, citations omitted).

Each of these categories stood as distinct exceptions

to traditionally liberal habeas filing. Defendants who had

defaulted in state court, absent a showing of cause and

prejudice, were precluded from federal habeas relief because

of concerns over waiver and state comity. See Fay, 372 U.S.

at 439 (holding that certain procedural defaults amounted to

“an intentional relinquishment or abandonment of a known

right or privilege”) (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)); Murray v. Carrier, 477 U.S. 478, 487 (1986)

(holding that default “exacts an extra charge by undercutting

the State’s ability to enforce its procedural rules”) (quoting

Engle v. Isaac, 456 U.S. 107, 129 (1982)). Similarly,

petitioners who raised previously available new claims in a

second habeas petition, known as abuse-of-the-writ, were not

entitled to a review on the merits. This Court emphasized

the concept of waiver to justify barring such litigants from

obtaining review on the merits of their new claims. See

Sanders v. United States, 373 U.S. 1, 17 (1963) (relying on

“the principle that a suitor’s conduct in relation to the matter

at hand may disentitle him to the relief he seeks”). Thus,

“both the abuse-of-the-writ doctrine and . . . procedural

default jurisprudence concentrate on a petitioner’s acts to

determine whether he has a legitimate excuse for failing to

raise a Claim at the appropriate time.” McCleskey v. Zant,

499 U.S. 467, 490 (1991).

The abuse-of-the-writ doctrine, codified by AEDPA

in § 2244(b)(2), and procedural default rules, survive today.

See Dretke v. Haley, 124 S. Ct. 1847, 1851-52 (2004)

(confirming that a petitioner in procedural default is

permitted habeas review only upon a showing of cause and

prejudice). These doctrines rest on the notion that a

petitioner’s fault, which poses a cost to the state and society,

deprives that petitioner of his very important right to habeas

merits review. This Court has contrasted such petitioners

with those who file petitions in a proper manner.

Recognizing the cost of continued habeas litigation, the

Court nonetheless observed:

9

The federal writ of habeas corpus overrides

all these considerations, essential as they are

to the rule of law, when a petitioner raises a

meritorious constitutional claim in a proper

manner in a habeas petition. Our procedural

default jurisprudence and abuse-of-the-writ

jurisprudence help define this dimension of

procedural regularity. Both doctrines impose

on petitioners a burden of reasonable

compliance with procedures designed to

discourage baseless claims and to keep the

system open for valid ones.

McCleskey, 499 U.S. at 493.

In contrast to abuse-of-the-writ and procedural

default rules, which relieve a federal court of the obligation

to conduct a merits review, the ban on successive petitions

does not relieve a federal court of its initial duty to conduct a

merits review, but rather stands for the principle that federal

habeas litigants are not necessarily entitled to multiple merits

reviews. In Sanders, 373 U.S. at 15, this Court defined a

“successive” application, as arising when “(1) the same

ground presented in the subsequent application was

determined adversely to the applicant . . . and (2) the prior

determination was on the merits.” (emphasis added). See

also Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986) (“It is

clear that Congress intended for district courts, as a general

rule, to give preclusive effect to a judgment denying on the

merits a habeas petition alleging grounds identical in

substance to those raised in the subsequent petition.”)

(emphasis added); Wong Doo v. United States, 265 U.S. 239,

241 (1924); Salinger v. Loisel, 265 U.S. 224, 232 (1924).

Post-AEDPA, this Court has continued to interpret

“successive petition” as one filed after a previous resolution

on the merits. See Slack, 529 U.S. at 485-86 (“A habeas

petition filed in the district court after an initial habeas

petition was unadjudicated on its merits . . . is not a second

or successive petition.”) (emphasis added);° Martinez-

® Although Slack had commenced his habeas petition before the

passage of AEDPA, the Court explicitly stated, “[W]e do not suggest the

10

Villareal, 523 U.S. at 645 (holding that a petition is not

successive when “the habeas petitioner [did] not receive an

adjudication of his claim” in the first petition).

Consequently, a careful analysis of the evolution of

habeas filing restrictions reveals several important principles.

The most important is the enduring concept that a habeas

petitioner is entitled to at least one valid review on the merits

of his challenge to the legality of his detention. See

Woodford v. Garceau, 538 U.S. 202, 207 (2003) (holding

that the essence of a claim for habeas relief is a request for

review on the merits); Lonchar v. Thomas, 517 U.S. 314, 324

(1996) (stating that dismissal of first habeas denies

petitioners protection of the Writ). The evolving restrictions

on habeas litigation carved out limited circumstances in

which a petitioner could be denied merits review, namely

unexcused procedural default and abuse-of-the-writ. See

Sawyer, 505 U.S. at 338. And after the first merits review

of a petitioner’s claims, the petitioner was not necessarily

entitled to duplicative merits reviews. See Kuhlmann, 477

U.S. at 451.

Given this evolution, it is clear that a ban on

“successive applications” is not meant to disallow Rule 60(b)

motions. A successive application is a petition, filed after a

valid merits review, which seeks to relitigate the merits of

petitioner’s substantive claims challenging his detention. A

Rule 60(b) movant does not seek to relitigate the merits of a

claim, but rather asserts that he never received a valid merits

review, either because the district judge, through error,

refused to consider the merits, as in Gonzalez’s case, or

because the decision on the merits lacked integrity. See

Abdur’Rahman v. Bell, 537 U.S. 88, 95-96 (2002) (Stevens,

J., dissenting from dismissal of writ of certiorari) (“A Rule

60(b) motion is designed to cure procedural violations in an

earlier proceeding—here, a habeas proceeding—that raise

questions about that proceeding’s integrity.”) (quoting

Mobley v. Head, 306 F.3d 1096, 1101 (11th Cir. 2003)

(Tjoflat, J., dissenting) (vacated panel opinion)). A Rule

definition of second or successive would be different under AEDPA.”

Slack, 529 U.S. at 486.

11

60(b) motion contests the integrity or etiology of the district

court’s final judgment; it does not revisit constitutional

issues already resolved on the merits. See Abdur’Rahman,

392 F.3d at 179; Rodriguez v. Mitchell, 252 F.3d 191, 199

(2d Cir. 2001); Rodwell v. Pepe, 324 F.3d 66, 71 (1st Cir.

2003). Consequently, permitting 60(b) movants the chance

to obtain a true first merits review is completely consistent

with § 2244(b)(1)’s ban on “successive applications,” which

seek to prevent duplicative merits reviews.

Moreover, Rule 60(b) movants are not similarly

situated to the narrow class of habeas petitioners traditionally

disallowed relief. The only petitioners not entitled to a

merits review are those who, through their own unexcused

behavior, have defaulted or failed to raise available claims.

McCleskey, 499 U.S. at 490. By contrast, Rule 60(b)

movants have abided by required procedures, but were

unable to obtain a true inerits review, not because of their

unexcused culpable behavior, but rather because of some

extraordinary circumstance. See Liljeberg v. Health Serv.

Acquisition Corp., 486 U.S. 847, 863-64 (1988) (holding that

Rule 60(b) applies in extraordinary circumstances).’ Thus,

in banning “successive applications,” Congress did not mean

to preclude faultless petitioners from obtaining relief from

grossly unjust habeas judgments. See United States v.

Beggerly, 524 U.S. 38, 46 (1998) (holding that Rule 60(b) is

meant to remedy gross injustices).

Given that there is no conflict indicated by the plain

language, legislative history, or historical underpinnings of

AEDPA, the court below relied on a characterization of the

statute’s broad purposes to justify its conclusion that §

2244(b) conflicts with Rule 60(b). Gonzalez, 366 F.3d at

7 In addition, Rule 60(b) review does not implicate state comity

concerns in the same manner as review of procedurally defaulted claims.

Rule 60(b) challenges the federal district court’s review as tainted by

extraordinary circumstances, but in no way affects or seeks to supplant

state procedural rules. The concern that allowing petitioners who have

procedurally defaulted to obtain habeas review will encourage defendants

not to comply with state procedures has no application to the 60(b)

movant.

12

1269-70. The court sought to derive specific congressional

intent from its own conclusion that “[t]he central purpose

behind the AEDPA was to ensure greater finality of state and

federal court judgments in criminal cases.” Jd. at 1269. This

Court has, however, specifically rejected the notion that a

court can rely on its characterization of a statute’s broad

objective to find a specific congressional directive. See

Rodriguez v. United States, 480 U.S. 522, 535-36 (1987)

(holding that lower court “impermissibly” relied on “its

understanding of the broad purposes of” a statute to imply a

repeal); United States v. United Cont’l Tuna Corp., 425 U.S.

164, 169 (1976) (holding that the court “would normally

expect some expression by Congress” that a repeal is

intended); Rail Act Cases, 419 U.S. at 134 (stating that “it is

reasonable for a court to insist on the legislature’s using

language showing that it has made a_ considered

determination to that end”) (quoting lower court opinion).

In addition, the broad purpose of AEDPA does not

support the court of appeals’ conclusion that Rule 60 is

inconsistent with AEDPA, given the evolution of res judicata

rules in habeas corpus jurisprudence. Res judicata is the

principle that “a final judgment on the merits bars further

claims by parties or their privies on the same cause of

action.” United States v. Mendoza, 464 U.S. 154, 159 n.3

(1984); see also Montana v. United States, 440 US 147, 153

(1979); Parklane Hosiery v. Shore, 439 U.S. 322, 326 n.5

(1979). The purpose of the rule is manifold. The Court has

explained that “preclud[ing] parties from contesting matters

that they have had a full and fair opportunity to litigate

protects their adversaries from the expense and vexation

attending multiple lawsuits, conserves judicial resources, and

fosters reliance on judicial action by minimizing the

possibility of inconsistent decisions.” -Montana, 440 US. at

153-54.

“At common law, res judicata did not attach to a

court’s denial of habeas relief.” McCleskey, 499 U.S. at 479;

see also Sanders, 373 U.S. at 7 (stating that the

inapplicability of res judicata stems “from the earliest days

of habeas corpus jurisdiction”). As habeas relief expanded

and courts of appeals obtained jurisdiction, this Court began

13

to restrict seriatim filing of same-claim habeas petitions by

permitting district courts, in certain circumstances, to dismiss

successive petitions. See Wong Doo, 265 U.S. at 241.

Prior to AEDPA, the rule governing dismissal of successive

petitions was that district courts should dismiss successive

petitions unless the “ends of justice” required a duplicative

review. Kuhlmann, 477 U.S. at 451. This rule sought to

balance “Congress’ intent to give finality to federal habeas

judgments with the historic function of habeas co to

provide relief from unjust incarceration.” Jd. at 451-52.

AEDPA amended § 2244(b) to direct that successive

same-claim habeas petitions “shall” be dismissed, without

exception. This Court has described the restrictions on

successive filing as a “modified res judicata rule,” Felker,

518 U.S. at 664, leading some lower courts to conclude that,

even after AEDPA, res judicata principles remain

inapplicable in habeas proceedings. See Muniz v. United

States, 236 F.3d 122, 126 (2d Cir. 2001) (holding that

“AEDPA did not abrogate the well-settled traditional rule”

that res judicata does not apply in habeas proceeding). Even

assuming, arguendo, that AEDPA was meant to import res

judicata into habeas litigation to the same extent as in

ordinary civil litigation, it still does not follow that Congress

intended to preclude the filing of Rule 60(b) motions.

Res judicata is predicated on an assumption that the

judgment given preclusive effect followed a “full and fair”

proceeding. Montana, 440 U.S. at 153-54. For this reason,

Rule 60(b) has always operated as an exception to the res

* In 1963, the Court recognized that district courts had discretion

to dismiss successive applications, unless the “ends of justice” required a

successive merits review. This decision was based, in part, on the

version of § 2244 in effect at that time, which permitted a judge to

dismiss a successive application only when “satisfied that the ends of

justice will not be served by such inquiry.” Sanders, 373 U.S. at 12.

Kuhlmann was decided in 1986, after passage of the 1966 amendments to

§ 2244(b), which preserved discretion to entertain successive petitions

but eliminated the “ends of justice” inquiry. 477 U.S. at 451. Kuhlman

preserved the “ends of justice” standard, but narrowed the standard by

limiting it to petitioners who could supplement their constitutional claims

with a colorable showing of factual innocence. Id. at 454.

14

judicata bar on successive litigation. See Arizona v.

California, 460 U.S. 605, 619 (1983) (“It is clear that res

judicata and collateral estoppel do not apply if a party moves

the rendering court in the same proceeding to correct or

modify its judgment.”). “Rule 60(b) is . . . reserved for those

cases of ‘injustices which, in certain instances are deemed

sufficiently gross to demand a departure’ from the rigid

adherence to the doctrine of res judicata.” Beggerly, 524

U.S. at 46 (quoting Hazel-Atlas Glass Co. v. Hartford

Empire Co., 322 U.S. 238, 244 (1944)). As a result, the fact

that habeas jurisprudence has moved toward greater finality

does not mean that Congress intended to displace a well-

settled exception to the principle of res judicata.

B.

Allowing Rule 60(b) relief will not

circumvent the restrictions in AEDPA and the

Court has an obligation to adopt the interpretation

that preserves Rule 60(b) to the greatest extent

The above discussion demonstrates that neither the

plain language, legislative history, meaning of the terms as

understood in the context of pre-existing law, or even broad

purpose of AEDPA evidence an irreconcilable conflict with

Rule 60. If, however, this Court does find some indication

of inconsistency between AEDPA and Rule 60(b), the Court

has an obligation to reconcile the provisions before finding

any repeal. “['V]hen two statutes are capable of co-

existence, it is the duty of the courts . . . to regard each as

effective.” Radzanower, 426 U.S. at 155 (quoting Morton v.

Mancari, 417 U.S. 535, 551 (1974)). The Court should

construe the later act as a continuation of, not substitute for,

the first, see Posadas, 296 U.S. at 503, and any repeal should

be implied “only to the minimum extent necessary.”

Radzanower, 426 U.S. at 155.

The Eleventh Circuit feared that unbridled

application of Rule 60(b) “would effectively erase from the

books the more recent and more specific statutory

requirement” contained in AEDPA. Gonzalez, 366 F.3d at

1271. The court contended that “[t]he discretion to reopen

15

final judgments contemplated in most of the provisions of

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

Id. at 1271. This contention, however, was predicated on a

misunderstanding of the scope of Rule 60(b). The analysis

below demonstrates that preserving full Rule 60(b) relief will

not, in fact, conflict with the prohibition against successive

applications.

1

Rule 60(b) retains a distinct scope

that does not overlap or conflict with § 2244

Rule 60(b) and AEDPA can co-exist consistently

because, as recognized by lower courts, a Rule 60(b) motion

seeks different relief based on different grounds than a

successive habeas petition. See Abdur’Rahman, 392 F.3d at

179 (“[T]he significant functional differences between Rule

60(b) motions and habeas petitions .. . mean that many Rule

60(b) motions will not run afoul of AEDPA.”).

First, the immediate objective of a Rule 60(b) motion

is not to secure release from detention but “merely [to]

reinstate[] the previously dismissed habeas petition, opening

the way for further proceedings.” See id., 392 F.3d at 179;

Rodriguez, 252 F.3d at 198. Rule 60(b) motions suggest to a

federal court that its earlier judgment rests on a defective

foundation, see Abdur’Rahman, 392 F.2d at 179, but

granting that motion will not, by itself, invalidate the

underlying conviction and/or sentence. /d. at 180.

Second, and more important, permissible grounds for

a Rule 60(b) motion are distinct from the grounds raised in

any petition for habeas corpus relief, whether original or

successive. A habeas petition asserts that a prisoner is “in

custody in violation of the Constitution or laws or treaties of

the United States,” 28 U.S.C. § 2254(a), as a result of federal

constitutional defects that occurred in the state criminal

process. See id., 392 F.3d at 179-80; Rodwell, 324 F.3d at

70; Rodriguez, 252 F.3d at 199. A second or successive

habeas petition thus seeks to relitigate previously resolved

constitutional claims in an effort to demonstrate for the

second time that the petitioner’s detention is illegal.

16

In contrast, Rule 60(b) motions raise issues that have

no basis in the Constitution of the United States and that

“may well have nothing to do with the alleged violations of

federal rights.” Rodriguez, 252 F.3d at 199. The factual

predicate of a proper Rule 60(b) motion deals with a

procedural defect or irregularity in the manner in which the

federal district court initially rejected the petition containing

the arguments about constitutional violations at the state

trial. Abdur’Rahman, 392 F.3d at 181; Rodwell, 324 F.3d at

70. The legal predicate of the Rule 60(b) motion is the

federal court’s interpretation and application of federal

procedural statutes and rules. See Abdur’Rahman, 537 U.S.

at 95-96 (Stevens, J., dissenting from dismissal of writ of

certiorari).”

A Rule 60(b)(6) motion thus challenges not the

constitutionality of the underlying criminal proceedings, but

rather the integrity of the federal district court’s decision.

Rule 60(b)(6) allows courts to reopen judgments for “any

other reason justifying relief from the operation of the

judgment.” Fed. R. Civ. P. 60(b)(6). The court of appeals

asserted that no part of Rule 60(b) could do “more harm to

the finality of judgments” than 60(b)(6)). Gonzalez, 366

F.3d at 1271. However, Rule 60(b)(6) does not exist in a

vacuum and does not permit review and relief every time a

movant asserts that the judgment is wrong. The law is well-

settled that Rule 60(b)(6) applies only in truly exceptional or

extraordinary circumstances. See Liljeberg, 486 U.S. at 863.

Mere intervening changes or developments in law, by

themselves, rarely will provide sufficiently extraordinary

circumstances. See Agostini v. Felton, 521 U.S. 203, 239

(1997).

* For example, a motion under Rule 60(b)(1) seeking to vacate a

judgment because of “mistake, inadvertence, surprise, or excusable

neglect” asserts that the respondent engaged in unfair surprise in the

federal habeas proceeding by failing to notify the petitioner of the

witnesses to be called at the hearing, but says absolutely nothing about

unfair surprise in the underlying state criminal trial. See Rodriguez, 252

F.3d at 199.

17

For example, a prisoner whose motion challenges the

district court’s rejection of his claim of constitutional

violation in the state criminal proceeding, on the grounds

that the substantive law has changed, has filed a successive

application and cannot rely on Rule 60(b). See

Abdur’Rahman, 392 F.3d at 185. The rule is unavailable

because the change does not render erroneous anything about

the process by which the district court rejected the petition.

Id."" On the other hand, Rule 60(b)(6) remains the proper

vehicle when the change in law reveals that the district

court’s procedural decision was erroneous and that error

deprived the petitioner of any merits review.

Mr. Gonzalez presents an extraordinary circumstance

that properly provides the basis for Rule 60(b) relief. The

clarification in law in the instant case evidences a defect not

in the underlying state proceedings, but in the district court’s

dismissal of his habeas petition on federal procedural

grounds. The district court never reached, considered, or

resolved the merits of Mr. Gonzalez’s claims that his guilty

plea in state court was unconstitutionally unintelligent,

unknowing, and involuntary. Gonzalez, 366 F.3d at 1261.

Rather, the court dismissed the petition as time-barred, on

the ground that it had not been filed within AEDPA’s one

year limitations period. Jd; 28 U.S.C. § 2244(d)(1).

Subsequently, this Court clarified in Artuz v. Bennett, 531

U.S. 4, 8 (2000), that a petition for state collateral relief was

'° This petitioner could not properly seek 60(b)(6) relief, and his

recourse would be to >ring a successive habeas petition, characterize the

claim as a new claim because of the change in law, and argue for relief

on the basis of § 2244(b)(2)(A), which permits the court to consider a

new-claim successive petition that relies on a new rule of constitutional

law made retroactive.

There may, however, be extraordinary circumstances, in which

fundamental justice dictates that certain petitions be revisited subsequent

to a change of substantive law, for example, petitions by mentally

retarded death row inmates to revisit their habeas claims in light of Atkins

v. Virginia, 536 U.S. 304 (2002). Courts of appeals will have to decide

whether granting 60(b)(6) relief to such movants is an abuse of discretion

in light of AEDPA. See Calderon v. Thompson, 523 U.S. 538, 554

(1998) (holding that abuse of discretion standard is defined in part by

AEDPA).

18

“properly filed” when it had been delivered and accepted in

compliance with state rules. As a result, Mr. Gonzalez’s

original and only petition was timely filed, and the district

court’s judgment was plainly incorrect in light of Artuz.

Mr. Gonzalez’s subsequent Rule 60(b) motion

challenged only the district court’s purely procedural ruling

as to timing. It focused entirely on litigation in the federal

district court and that court’s resolution of the petition. The

Rule 60(b) motion in no way implicated anything that

occurred in state court, but instead asserted that the

erroneous procedural ruling deprived the federal court’s

judgment of required integrity. See Abdur’Rahman, 392 F.3d

at 179; Rodriguez, 252 F.3d at 199; Rodwell, 324 F.3d at 71.

Mr. Gonzalez’s case is “exceptional” for purposes of Rule

60(b)(6), not a case of run-of-the-mill legal error, because

the district court’s erroneous procedural ruling deprives him

of any opportunity to obtain federal review of the merits of

his claims that his detention is unconstitutional.”

As Justice Stevens correctly stated in Abdur’Rahman,

whether one ultimately agrees that a particular circumstance

actually warrants Rule 60(b) relief is separate from whether

it is proper for the district court to consider a Rule 60(b)

motion in the first instance. 537 U.S. at 97 (Stevens, J.,

dissenting from dismissal of writ of certiorari). This much,

however, is clear: Mr. Gonzalez’s situation is the type of

extraordinary circumstance “justifying relief from the

operation of the judgment” under Rule 60(b)(6) and

warranting direct consideration by the district court.

The reasonable interpretation of Rule 60(b) thus

establishes consistency between the rule and § 2244(b) such

'' Some courts have indicated that even a valid dismissal of an

untimely federal habeas petition should not unequivocally bar the

petitioner from merits review. See e.g., Rosa v. Senkows!i, 1997 WL

436484, at *5 (S.D.N.Y. 1997) (holding that strict application of

AEDPA’s time limits, without a showing of prejudice to the state,

violates suspension clause); cf. Rodriguez v. Artuz, 990 F. Supp. 275,

281-82 (S.D.N.Y. 1998) (holding that AEDPA’s time limits do not

violate the suspension clause “per se,” but there may be cases in which

strict application of time limits is unconstitutional, for example, where

petitioner makes a showing of actual innocence).

19

that both retain effect. This Court must adopt an

interpretation that allows the two rules to be read

consistently so as to avoid repeal by implication. See

Kremer, 456 U.S. at 468; Radzanower, 426 U.S. at 155.

Allowing the petitioner to reopen the judgment (or to argue

for the reopening of the judgment) in the instant action does

no violence to the dictates or policies of § 2244(b). This

type of Rule 60(b) motion is not inconsistent with, much less

in irreconcilable conflict with, the restrictions in § 2244(b),

making repeal by implication especially unwarranted. See

Crawford Fitting Co., 482 U.S. at 442.

2.

The Eleventh Circuit's treatment

of Rule 60(b) is not a repeal

to the “minimum extent necessary”

The Eleventh Circuit explicitly recognized that some

limited portion of Rule 60(b) survived and could be

reconciled with AEDPA. The court, however, preserved

only 60(b)(3), which provides for relief from judgment due

to “fraud . . . misrepresentation, or other misconduct of an

adverse party,” in habeas cases. Gonzalez, 366 F.3d at 1278.

The majority held that the “state’s interest in the finality of a

judgment denying federal habeas corpus relief is not

compelling if that judgment would not have been obtained

but for fraud that its agents perpetrated upon the federal

court.” Id.

The court, however, never explained why fraud is so

different from the rest of 60(b) as to constitute the lone

surviving exception. As several lower courts have

explained, fraud on the federal court certainly is not the only

misconduct enumerated in Rule 60(b) that casts doubt on the

legitimacy or integrity of a federal habeas judgment. See id.

at 1297 (Tjoflat, J., specially concurring in part and

dissenting in part); see also Abdur’ Rahman, 392 F.3d at 180.

The state does not have a greater interest in the finality of a

federal judgment procured through mistake or surprise or, as

here, one procured through an erroneous application of

habeas procedures that deprives a state prisoner of any

review of the merits of his underlying constitutional claims.

20

These judgments, like fraudulent judgments, lack integrity or

legitimacy.

Because there is no meaningful difference between

fraud and any of the other Rule 60(b) grounds, the Eleventh

Circuit’s virtual evisceration of 60(b), preserving only the

fraud ground, was not a repeal to the “minimum [extent]

necessary” required by Radzanower, 426 U.S. at 155.

Saving only 60(b)(3), but finding the remainder of the rule

repealed, is not the narrowest repeal possible to avoid a

conflict. Rule 60(b) as a whole, and not just the fraud

provision, survives without interfering with § 2244(b) or

even AEDPA’s broad policies. Thus, to avoid effecting an

unjustified repeal by implication, this Court must preserve

far more of Rule 60(b), including the 60(b)(6) grounds at

issue in the instant case.

C.

AEDPA’s limitations on successive habeas applications

do not evidence congressional intent to displace a court’s

traditional equitable power to modify its judgments

One of the basic equitable powers of a court is the

ability to modify its own judgments in extraordinary

circumstances. See Plaut, 514 U.S. at 233. Rule 60(b)

codified this equitable authority and clarified and expanded

the circu:nstances in which it could be invoked. See Bankers

Mortgage Co. v. United States, 423 F.2d 73, 77 (Sth Cir.

1970) (“60(b) is a response to the plaintive cries of parties

who have for centuries floundered, and often succumbed,

among the snares and pitfalls of the ancillary common law

and equitable remedies. It is designed to remove the

uncertainties and historical limitations of the ancient

remedies but to preserve all of the various kinds of relief

which they offered.”). The rule “reflects and confirms the

courts’ own inherent and discretionary power, ‘firmly

established in English practice long before the foundation of

our Republic, to set aside a judgment whose enforcement

would work inequity.’” Plaut, 514 U.S. at 233-24 (quoting

Hazel-Atlas Glass Co., 322 U.S. at 244). Consequently, a

finding that § 2244(b)(1) supplants Rule 60(b) assumes not

21

only that Congress intended to impliedly repeal a codified

rule, but also that Congress intended to displace the equitable

power of a court to grant relief from its erroneous.

“Unless a statute in so many words, or by a necessary

and inescapable inference, restricts the court’s jurisdiction in

equity, the full scope of that jurisdiction is to be recognized

and applied. ‘The great principles of equity, securing

complete justice, should not be yielded to light inferences or

doubtful construction.’” Porter v. Warner Holding Co., 328

U.S. 395, 398 (1946) (quoting Brown v. Swann, 35 U.S. (10

Pet.) 497, 503 (1836)). This Court does “not assume lightly

that Congress has intended to depart from established

[equitable] principles.” Weinberger v. Romero-Barcelo, 456

U.S. 305, 313 (1982). A statute must be construed “in favor

of that interpretation which affords a full opportunity” for

courts to exercise their traditional equity. Hecht Co. v.

Bowles, 321 U.S. 321, 330 (1944).

AEDPA clearly does not, nor was it intended to,

displace all of a court’s common law or equitable authority.

In Felker, 518 U.S. at 660-61, this Court demanded of

Congress an explicit reference to its jurisdiction over original

habeas petitions before it would conclude that AEDPA

repealed that authority. The Court emphasized that other

provisions of AEDPA expressly limited the Court’s appellate

jurisdiction over a court of appeals’ denial of leave to file a

second or successive petition or expressly amended

procedural rules. Jd. at 661 n.3. Finding no similar explicit

reference to its original habeas jurisdiction, the Court held

that it had not been limited.

When a statute has not “foreclosed the exercise of

equitable discretion,” as in the instant case, “the proper

standard for appellate review is whether the District Court

abused its discretion” in the exercise of its equitable powers.

Weinberger, 456 U.S. at 320. In Calderon v. Thompson, 523

U.S. 538, 541-42 (1998), a case heavily relied on by the

court below, this Court found that the Ninth Circuit had

abused its discretion by recalling its earlier mandate denying

habeas relief. The Eleventh Circuit’s insistence that

Calderon supports the position that AEDPA is meant to limit

the review of Rule 60(b) motions, see Gonzalez, 366 F.3d at

22

1280-81, is simply misplaced. In Calderon, this Court held

that courts of appeals maintained the equitable discretion to

recall mandates, notwithstanding AEDPA. Calderon, 523

U.S. at 554. The Court nonetheless found that the Ninth

Circuit had abused its discretion in recalling its mandate to

“revisit the merits of its earlier decision denying habeas

relief,” because such duplicative merits review was not

required by the ends of justice. Jd. at 558-59.

Calderon in no way supports the proposition that

district courts do not retain the equitable power to grant Rule

60(b) relief in extraordinary circumstances demonstrating

that the district court judgment lacked integrity. As with the

recall of the mandate at issue in Calderon, a district court’s

decision regarding a Ru!e 60(b) motion can be reviewed for

abuse of discretion. See Weinberger, 456 U.S. at 320. The

fact that, in Calderon, the Ninth Circuit abused its discretion

in recalling a mandate in no way logically dictates that

district courts do not retain discretion to review Rule 60(b)

motions. Moreover, this Court limited its finding of abuse of

discretion to the specific circumstances of the case.'”

Conceivably, a district court could abuse its

discretion by granting a Rule 60(b) motion without finding

that one of the six predicates exist or solely to revisit its

earlier merits decision. The fact, however, that a judge can

abuse his discretion in granting equitable relief does not

compel the conclusion that no judge should be able to

exercise equitable power. Consequently, in the absence of

> The Court stated:

We should be clear about the circumstances we address

in this case. We deal not with the recall of a mandate

to correct mere clerical errors in the judgment itself,

similar to those described in Federal Rule of Criminal

Procedure 36 or Federal rule of Civil Procedure 60(a).

The State can have little interest, based on reliance or

other grounds, in preserving a mandate not in

accordance with the actual decision rendered by the

court. This is also not a case of fraud upon the court,

calling into question the very legitimacy of the

judgment.

Calderon, 523 U.S. at 557 (citations omitted).

23

any language evidencing congressional intent to displace a

court’s ability to equitably review its own judgments, district

courts retain the power to entertain Rule 60(b) motions,

subject to abuse-of-discretion review.

Il.

THIS COURT SHOULD INTERPRET

AEDPA AND RULE 60 CONSISTENTLY

TO AVOID A CONSTRUCTION THAT

RAISES GRAVE CONSTITUTIONAL CONCERNS

“Tt is well settled that this Court will not pass on the

constitutionality of an Act of Congress if a construction of

the statute is fairly possible by which the question may be

avoided.” United States v. Clark, 445 U.S. 23, 27 (1980);

see also New York City Transit Auth. v. Beazer, 440 U.S.

568, 582 & n.22 (1979). This canon “rest{[s] on the

reasonable presumption that Congress did not intend the

alternative which raises serious constitutional doubts.” Clark

v. Suarez Martinez, 125 S. Ct. 716, 724 (2005). “It is not a

method of adjudicating constitutional questions;” rather “it

allows courts to avoid the decision of constitutional

questions.” Jd. (emphasis in_ original). Avoiding

constitutional problems is especially important when

considering a purported repeal by implication. See St.

Martin Evangelical Lutheran Church v. South Dakota, 451

U.S. 772, 788 (1981) (“Thfe] long-established canon of

construction [against implied repeals] carries special weight

when an implied repeal or amendment might raise

constitutional questions.”).

A,

Interpreting AEDPA as prohibiting

Rule 60(b) relief raises grave concerns

over unconstitutional suspension of the writ

24

Article I, § 9 of the United States Constitution states,

“The 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.” See also Rasul v. Bush,

124 S. Ct. 2686, 2692 (2004). “[A]bsent suspension, the writ

of habeas corpus remains available to every individual

within the United States.” Hamdi v. Rumsfeld, 124 S. Ct.

2633, 2644 (2004).'? “This Court has constantly emphasized

the fundamental importance of the writ of habeas corpus in

our constitutional scheme ... The Court has steadfastly

insisted that ‘there is no higher duty than to maintain it

unimpaired.”” Johnson v. Avery, 393 U.S. 483, 485 (1969).

“{T]he writ ‘has been for centuries esteemed the best and

only sufficient defence of personal freedom.’” Lonchar, 517

U.S. at 324 (quoting Ex parte Yerger, 8 Wall. 85, 95

(1869))."

This Court has previously addressed the

constitutionality of AEDPA’s new filing rules in a very

general manner. In Felker, 518 U.S. at 664, the Court ruled

that “(t]he added restrictions which the Act places on second

habeas petitions are well within the compass of th[e]

evolutionary process [of filing restrictions], and we hold that

they do not amount to a ‘suspension’ of the writ contrary to

Article I, § 9.” Id. at 664. Felker assumes that prior to

AEDPA, habeas filing restrictions were not so broad as to

'? “Only in the rarest circumstances has Congress seen fit to

suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755,

Act of April 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has

remained a critical check on the Executive, ensuring that it does not

detain individuals except in accordance with law.” Hamdi, 124 S. Ct. at

2644 (2004).

‘ There has been some debate regarding the extent of

Suspension Clause protection, given that during the Framers’ time the

writ was extremely limited. See Hertz & Liebman, Federal Habeas

Corpus Practice and Procedure, § 7.2d, at 341 (4th ed. 2001). This

Court has declined to interpret the Clause as only applying to the writ of

the Framers’ era. See Felker, 518 U.S. at 663-64 (assuming that “the

Suspension Clause of the Constitution refers to the writ as it exists

today”); Swain v. Pressley, 430 U.S. 372, 380-81 (1977) (rejecting that

Suspension Clause “merely prohibits suspension of the writ as it was

being used when the Constitution was adopted”).

25

unconstitutionally suspend the writ. Whether the Eleventh

Circuit’s interpretation of § 2244(b)(1) renders the provision

unconstitutional thus depends on whether it represents a

departure from the evolution of filing restrictions. For many

reasons, including those discussed in Part I supra, the court

of appeals’ approach represents a gross departure from the

pre-AEDPA evolutionary process.

The evolving restrictions on habeas filings were

limited by the principle that petitioners are entitled to at least

one federal review of the merits of their constitutional

claims. This Court has held that the test for suspension is

whether the petitioner was denied an adequate and effective

collateral vehicle to test the legality of his detention. Swain

v. Pressley, 430 U.S. 372, 381 (1977). The Suspension

Clause thus generally guarantees that a habeas petitioner will

receive one full and fair review of the merits of his habeas

corpus claims. See Sanders, 373 U.S. at 16-17 (holding that

petitioner is guaranteed one “full and fair” merits review);

Rodriguez v. Artuz, 990 F. Supp. 275, 282-83 (S.D.N.Y.

1998) (“[T]he guarantee against ‘suspension’ ... obligates

Congress to provide one meaningful, nondiscretionary

opportunity to secure federal review of federal claims.”)

(internal quotations omitted). This Court has held that

“[dJismissal of a first habeas petition is a particularly serious

matter, for that dismissal denies the petitioner the protections

of the Great Writ entirely, risking injury to the important

interest in human liberty.” Lonchar, 517 U.S. at 324.

Although petitioners are generally guaranteed one

valid merits review, this Court has acknowledged that there

are certain petitioners who may be prevented from obtaining

a merits review without offending the Suspension Clause.

Waiver and state comity concerns moved this Court to hold

that petitioners who procedurally default or who raise new

claims in a second petition could be barred from merits

review. Nonetheless, to prevent this bar from constituting

unconstitutional suspension, the Court preserved merits |

review for those who could show cause and prejudice or

actual innocence. See Murray, 477 U.S. at 496; Frane‘s v.

Henderson, 425 U.S. 536, 542 (1976). Thus, even though

such litigants were culpable in their failure to follow state

26

rules or to raise ripe claims and that failure adversely

affected the state’s interest, fundamental justice dictated that

they still could retain some avenues toward merits review.

See Engle, 456 U.S. at 134 (“In appropriate cases th[e]

principles of [finality and comity] must yield to the

imperative of correcting a fundamentally unjust

incarceration. [W]e are confident that victims of a

fundamental miscarriage of justice will meet the cause-and-

prejudice standard.”).

Although certain culpable behavior on the part of a

petitioner could disentitle him to a merits review, this Court

has recognized that not all culpable behavior allows a court

to deny the right to a valid merits review. In Martinez-

Villareal, the Court declined to interpret AEDPA as

preventing a petitioner whose initial Ford claim was

dismissed as premature from obtaining merits review,

holding that “the implications [of such an interpretation] for

habeas practice would be far reaching and seemingly

perverse.” 523 U.S. at 644. This Court also indicated that

federal habeas petitioners are entitled to a merits review even

when their initial petitions have been dismissed for failure to

exhaust state remedies, see id.; Slack, 529 U.S. at 487, or

failure to pay filing fees. See Martinez-Villareal, 523 U.S. at

645 (citing United States ex rel. Barnes v. Gilmore, 968 F.

Supp. 384, 385 (N.D. Ill. 1997); Marsh v. United States Dist.

Ct., 1995 WL 23942 (N.D. Cal., Jan. 9, 1995); Taylor v.

Mendoza, 1994 WL 698493 (N.D. Ill., Dec. 12, 1994)).

Although one could say that such petitioners were at fault for

failing to adhere to procedural rules, this Court held that such

faults were not grave enough to disentitle petitioners to

merits review, because “[t]o hold otherwise would mean that

a dismissal of a first habeas petition for technical procedural

reasons would bar the prisoner from ever obtaining review.”

Martinez-Villareal, 523 U.S. at 645.

It is thus clear from the evolution of filing restrictions

that the only petitioners who may be denied merits review

are those whose culpable fault is so grave as to constitute

waiver or implicate state comity concerns. Even these

individuals, however, are permitted merits review upon a

showing of cause and prejudice. See Murray, 477 U.S. at

27

496; Francis, 425 U.S. at 542. Mr. Gonzalez was

undoubtedly denied a review on the merits of his

constitutional claims, but he followed all the applicable rules

in filing his federal habeas petition. It was court error, not

Mr. Gonzalez’s default or waiver, which prevented the

merits decision. Because Mr. Gonzalez did nothing wrong

when he filed his first habeas petition, he not only engaged

in less culpable conduct that those who procedurally default

or abuse the writ, he also engaged in less culpable conduct

than a person whose initial petition was dismissed for failure

to exhaust or pay a filing fee. Thus, the Eleventh Circuit’s

interpretation of AEDPA as precluding a faultless 60(b)

movant from obtaining a first merits review is a serious

departure from the evolution of filing restrictions. See

Felker, 518 U.S. at 664.

Consequently, the Suspension Clause’s guarantee of

one valid merits review, combined with the narrow

circumstances in which that merits review can be denied,

demonstrates that the Eleventh Circuit’s construction of §

2244(b)(1) as prec'uding Rule 60(b) relief should be rejected

because it raises grave constitutional concerns.

B.

Interpreting AEDPA as prohibiting Rule 60(b) relief

raises grave concerns over denial of due process of law

The Eleventh Circuit's interpretation of AEDPA as

preventing a state prisoner from invoking Rule 60(b) raises

the serious risk of a Due Process violation in contravention

of the Fifth Amendment to the United States Constitution.

The statutory right of habeas corpus’® is protected by the due

process guarantees. See Bonin v. Vasquez, 999 F.2d 425,

430 (9th Cir. 1993) (holding that procedural due process

applies in federal habeas proceedings); see also Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (holding

that statutory rights involving life, liberty, or property are

'S Arguably, the right to habeas corpus review is not merely

statutory, but also stems from the Constitution’s Suspension Clause.

28

subject to the Due Process Clause). Therefore, a state

prisoner’s petition for habeas relief must be resolved

according to procedures that are fundamentally fair and

specifically tailored to protect the prisoner from an erroneous

deprivation of such right. See e.g. Addington v. Texas, 441

U.S. 418, 425 (1979) (holding that the “function of legal

process is to minimize the risk of erroneous decisions”);

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.

123, 161 (1951) (Frankfurter, J., concurring) (stating that

“fairness of procedure is due process in its primary sense”)

(internal citations omitted).

In Mathews v. Eldridge, 424 U.S. 319, 335 (1976),

this Court established that the process a litigant is due

depends on a balancing of three factors: (1) the private

interest affected by the official action; (2) the risk of

erroneous deprivation of such interest through the procedures

used and the probable value, if any, of additional or

substitute procedural safeguards; and (3) the government's

interest, including the function involved and the fiscal and

administrative burdens that additional or substitute

procedural requirements would entail.

It is clear that, at a minimum, absent procedural

default or waiver, a habeas petitioner has a statutory right to

one valid review of the merits of his claims. See Lonchar,

517 U.S. 324, and discussion supra. Because merits review

is at the heart of the statutory interest, the procedures

established to govern habeas litigation must guarantee the

petitioner a fair opportunity for at least one valid

consideration of the merits of his claims. See Anti-Fascist

Comm., 341 U.S. at 161 (Frankfurter, J., concurring) (finding

that “a state may not deprive a person of all existing

remedies for the enforcement of a right . . . unless there is, or

was, afforded to him some real opportunity to protect it”).

Merits review cannot be protected, however, in the

absence of a procedural mechanism to reopen a judgment in

the extraordinary circumstance where court error has

prevented merits review. See Paterno v. Lyons, 334 U.S.

314, 319 (1948) (finding that due process entails “an

opportunity to effectively take advantage of . . . corrective

remedies”); Mooney v. Holohan, 294 U.S. 103, 112-13

29

(1935) (finding that due process is violated when no

“corrective judicial process” is available to challenge an

erroneous court judgment). The absence of such a

- procedural mechanism results in the unfair and irremediable

dismissal of claims for erroneous reasons having nothing to

do with the underlying merits, even though the petitioner

fully complied with procedural requirements. Consequently,

precluding Rule 60(b) places habeas petitioners at great risk

of erroneous deprivation of their statutory right to challenge

illegal detentions.

Turning to the government’s interest, while the state

and society have a strong interest in the finality of criminal

convictions, see Murray, 477 U.S. at 487, this does not mean

that the federal government has an overriding interest in

preserving erroneous federal habeas judgments. See

Calderon, 523 U.S. at 557 (stating that government “can

have little interest” in a faulty judgment). Moreover,

because a Rule 60(b) motion does not seek to relitigate the

substantive constitutional issues, it imposes minimal burdens

on the district court and thus affects finality very little. See

Abdur’ Rahman, 537 U.S. at 598 (Stevens, J., dissenting from

dismissal of writ of certiorari) (asserting that Rule 60(b)

review only requires a court to determine whether a predicate

for reopening judgment exists). In addition, the State’s

interest in comity and in ensuring that its procedural rules are

not subverted by federal law, see Murray, 477 U.S. at 487, is

not adversely affected by Rule 60(b) review. Rule 60(b) will

not help a petitioner who has procedurally defaulted in state

court; the rule in no way affects the state’s ability to set

procedure free from federal interference. Consequently,

permitting a habeas litigant to make a motion under Rule

60(b) does not constitute an “additional” or “substitute”

procedure that imposes an unreasonable administrative

burden or cost on the state or federal government.

The Eleventh Circuit’s narrow construction of Rule

60(b) does not strike the proper balance of interests because

it eliminates the ability of habeas petitioners such as Mr.

Gonzalez to challenge faulty district court decisions that

prevent them from obtaining a merits review. The lower

court’s construction thus risks the erroneous deprivation of

30

the statutory right to challenge the legality of detention.

When balanced against the government’s de minimus, if not

non-existent, interest in preserving defective district court

judgments to minimally increase efficiency and finality, it

becomes clear that denial of Rule 60(b) review falls well

short of the process due to habeas litigants. Because the

Eleventh Circuit’s interpretation of AEDPA raises the

specter of constitutional due process problems, it must be

rejected.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals for the Eleventh Circuit should be reversed.

Respectfully Submitted,

JOSHUA L. DRATEL Of counsel

NATIONAL ASSOCIATION M. AYA GRUBER

OF CRIMINAL DEFENSE HOWARD M. WASSERMAN

LAWYERS KAREN PITA-LOOR

14 Wall Street, 28th Floor LILIAN APONTE-MIRANDA

New York, New York PROFESSORS OF LAW,

10005 FLORIDA INTERNATIONAL

(212) 732-0707 UNIVERSITY

COLLEGE OF LAW

DAVID OSCAR MARKUS* Miami, Florida 33199

HIRSCH & MARKUS, LLP (305) 348-8345

9130 S. Dadeland Blvd.,

Suite 1200 Counsel for Amicus

Miami, Florida 33156 Curiae

(305) 670-0077 *counsel of record