Abdur'Rahman v. Bell

493 F.3d 738, 2007 U.S. App. LEXIS 16710, 2007 WL 2011267

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 13, 2007
• Docket: 02-6547, 02-6548
• Status: Published

Opinions

SILER, J., delivered the opinion of the court, in which BATCHELDER, J., joined. COLE, J. (pp. 741-44), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

In 2004, our en banc court concluded that Abu-AIi Abdur’Rahman’s post-judgment motion should be treated as a Fed. R.Civ.P. 60(b) motion rather than a second or successive habeas petition. In re Ab-dur’Rahman, 392 F.3d 174, 182 (6th Cir. 2004), vacated, Bell v. Abdur’Rahman, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909 (2005). In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Bell, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909. Based on Gonzalez, Abdur’Rahman’s motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely-

Gonzalez clarified the interplay between 28 U.S.C. § 2254 and Rule 60(b). The Court noted that a purported Rule 60(b) motion which neither seeks to add a new ground for relief, nor attacks a federal court’s previous resolution of a claim on the merits,¹ but instead attacks some defect in the integrity of the federal proceedings, should be construed as a Rule 60(b) motion. Thus, a habeas petitioner’s post-judgment pleading is properly characterized as a Rule 60(b) motion if “it does not assert, or reassert, claims of error in the movant’s state conviction. A motion that ... challenges only the District Court’s failure to reach the merits does not warrant such treatment....” Gonzalez, 545 U.S. at 538,125 S.Ct. 2641.

Based on this holding, we consider Abdur’Rahman’s post-judgment pleading as a Rule 60(b) motion.² This motion, which requested the district court to vacate its judgment denying his habeas petition since, under Tennessee Supreme Court Rule 39 (“TSCR 39”), he was never required to appeal his prosecutorial misconduct claims to the Tennessee Supreme Court for exhaustion purposes, neither seeks a new ground for relief nor attacks the resolution of his claim on the merits. Instead, the motion seeks a remedy for an alleged “defect in the integrity of the federal habeas proceeding.” Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. Thus, it is a proper Rule 60(b) motion.

We must next determine whether Abdur’Rahman is entitled to relief under Rule 60(b). He is not. Abdur’Rahman asserts that his motion is one under Rule 60(b)(6). However, that Rule, which allows post-judgment relief for “any other reason justifying relief from the operation of judgment,” is interpreted narrowly, permitting relief only in “extraordinary circumstances.” Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Edüd 855 (1988). We need not consider whether he presents “extraordinary circumstances” since his motion is more properly characterized as one under Rule 60(b)(1) rather than Rule 60(b)(6).³ Under Rule 60(b)(1), a district court may grant relief from a judgment based on “mistake, inadvertence, surprise, or excusable neglect.” Here, the district court denied Abdur’Rahman’s habeas petition based on its belief that Tennessee law required him to raise his prosecutorial misconduct claims in order to adequately exhaust his state court remedies. The Tennessee Supreme Court’s subsequent promulgation of TSCR 39, however, rendered that conclusion erroneous.

Since TSCR 39 only clarified the law, and did not change the law, see Adams v. Holland, 330 F.3d 398, 405 (6th Cir.2003), it is inescapable that the district court committed a legal error-failing to recognize that even prior to the promulgation of TSCR 39, Tennessee law did not require criminal defendants to raise their claims before the Tennessee Supreme Court to meet the exhaustion requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub.L. No. 104-132 §§ 101-107, 110 Stat. 1214, 1217-26 (codified as amended in 28 U.S.C. § 2244, 2253-55, 2261-66 (2000)). To find otherwise strains logic.

Construing Abdur’Rahman’s motion as one made pursuant to Rule 60(b)(1), as we must, see Liljeberg, 486 U.S. at 863 & n. 11, 108 S.Ct. 2194 (noting that relief under Rule 60(b)(6) is precluded if the reason offered for relief can be considered under the specific clauses of Rule 60(b)), we dismiss it as untimely since it was not made within one year after the judgment was entered. Fed.R.Civ.P. 60(b). The district court denied habeas relief on the prosecutorial misconduct claims in April 1998, and Abdur’Rahman did not file his Rule 60(b) motion until more than three years later in November 2001. Therefore, this motion is dismissed since it was filed outside the applicable time period.

The dissent suggests this matter should instead be remanded to the district court for an initial determination of whether the Rule 60(b) motion has any merit. However, that suggestion was implicitly rejected when the en banc court referred this case back to the original panel. See In re Abdur’Rahman, 425 F.3d 328, 329 (6th Cir.2005) (Martin, J., dissenting).

APPEAL DISMISSED.

1 . The Court noted the multiple usages of "on the merits,” and limited its use in this context to referring to a determination that grounds entitling a petitioner to relief under § 2254(a) and (d) did or did not exist. The Court clarified that a habeas petitioner was not seeking a determination "on the merits” if "he merely asserts that a previous ruling which precluded a merits determination was in error — for example, a denial of such reasons as failure to exhaust, procedural default, or statute of limitations bar.” Id. at 532 n. 4, 125 S.Ct. 2641.

2 . As it must, Respondent concedes that Ab-dur’Rahman's motion, to the extent it seeks reconsideration of his prosecutorial misconduct claims found to be procedurally defaulted by the district court, does not constitute a successive habeas petition.

3 . The dissent argues that, under the “law of the case” doctrine, our en banc court’s determination that Abdur’Rahman's motion fell under Rule 60(b)(6) is binding on this panel. Normally, a general vacation of a lower court's judgment divests that court's judgment of its binding effect. See Johnson v. Bd. ofEduc., 457 U.S. 52, 53-54, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982). "A vacation which merely requires further consideration in light of a new Supreme Court decision, however, is of a much more limited nature,” United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1561-62 (11th Cir.1992), since the lower court is asked merely to decide the impact of the Supreme Court decision. Id. at 1562. Contrary to the dissent’s assertion, however, we are not necessarily bound by any part of the prior decision. Instead, we are "free to adopt any or all of [the prior decision] that, upon reconsideration, [is] unaffected by [the Supreme Court decision].” Id. Our holding, that Abdur'Rahman's motion is properly characterized as one under Rule 60(b)(1), simply reflects our reconsideration of this issue.