Thompson v. Calderon

151 F.3d 918, 98 Daily Journal DAR 7641, 98 Cal. Daily Op. Serv. 5468, 1998 U.S. App. LEXIS 16436, 1998 WL 401071

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 11, 1998
• Docket: No. 97-99018
• Status: Published

Opinions

Opinion by Chief Judge HUG; Concurrence by Judge KOZINSKI; Concurrence by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge TASHIMA.

HUG, Chief Judge.

JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLETCHER, JUDGE REINHARDT, JUDGE TASHIMA, JUDGE THOMAS concurring in Parts I, II, III, and IV, and JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLET.CHER, JUDGE THOMAS concurring in Part V. JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLECTCHER, JUDGE'KO-ZINSKI, JUDGE O’SCANNLAIN, JUDGE T.G. NELSON, JUDGE KLEÍNFELD, JUDGE THOMAS concurring in the judgment. JUDGE REINHARDT and JUDGE TASHIMA dissenting from part V and from the judgment.

I.

The procedural history, evidence, and facts in this case are set out in the Supreme Court’s opinion reversing our decision to recall the mandate. Calderon v. Thompson, - U.S.-, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Therefore, we will limit our discussion of the procedural history to the events related to Thompson’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

On July 23, 1997, while the motion to recall the mandate was pending before the en banc court, Thompson filed a motion in district court pursuant to Fed.R.Civ.P. 60(b); seeking relief from this court’s judgment denying him habeas relief under subsections (b)(2), (b)(3), and (b)(6). Treating the motion as the functional equivalent of a second habeas petition, the district court denied the motion on the grounds that, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2244(b)(3)(A), Thompson must obtain authorization from this court before filing a second petition. The district court issued a certificate of probable cause and Thompson timely appealed. Pursuant to Circuit Rule 22 — 3(a)(3), the appeal was assigned to the en banc court.¹

On August 3, 1997, this court filed an en banc opinion sua sponte recalling the July 11, 1997 mandate and vacating the previous panel decision on the basis of the claims and evidence presented in Thompson’s first federal habeas petition; not based on any new evidence or new claims raised in his motion to recall the mandate. Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997). (en banc). We then dismissed without prejudice Thompson’s appeal from the district court’s denial of his Rule 60(b) motion as moot. Thompson v. Calderon, 122 F.3d 1184 (9th Cir.1997).

The Supreme Court granted certiorari and reversed our decision to recall the mandate, Calderon, at -, 118 S.Ct. at, 1506, and remanded with instructions to reinstate the July 11, 1997 mandate denying habeas relief to Thompson. We reinstated the mandate and granted Thompson’s motion to reinstate his appeal from the district court’s denial of his Rule 60(b) motion.

The State of California sought and obtained a warrant for Thompson’s execution for July 14, 1998, prior to the completion of our briefing schedule on the 60(b) appeal. We ordered expedited briefing and heard oral argument on July 9,1998.

II.

Thompson sought relief from judgment under Fed.R.Civ.P. 60(b)(2), (b)(3), and (b)(6).² Thompson alleges that evidence discovered after the disposition of his federal habeas petition establishes that David Leiteh returned to the apartment Thompson and Leiteh shared while Fleischli was alive, and that Leiteh saw Thompson and Fleischli engaged in consensual intercourse and then left the apartment. Thompson claims that these facts were disclosed by Leiteh to the State prior to Thompson’s trial and to Leitch’s Parole Board in 1995 while the first petition for habeas corpus was pending before the district court and that the State engaged in misconduct in failing to disclose this exculpatory evidence.

As noted, the district court denied relief on the basis that Thompson’s Rule 60(b) motion was required to be treated as a second or successive habeas corpus application and that he had failed to petition this court for an order’ authorizing the district court to consider such an application as required by 28 U.S.C. § 2244(b)(3)(A).

A district court’s denial of a 60(b) motion is typically reviewed for an abuse of discretion. Lynch v. Blodgett, 999 F.2d 401, (9th Cir.1993). However, the district court’s conclusion that the 60(b) motion had to comply with the successive petition requirement of the AEDPA is an issue of law that *we review de novo. United States v. Kim, 105 F.3d 1579, 1581 (9th Cir.), cert. denied, - U.S. -, 118 S.Ct. 353, 139 L.Ed.2d 274 (1997) (district court authority determinations are reviewed de novo).

Several circuits have articulated the rationale in favor of treating Rule 60(b) motions in habeas cases as successive petitions governed by,§ 2244(b)(2)., See United States v. Rich, 141 F.3d 550, 551-52 (5th Cir.1998) (citing cases where Rule 60(b) motions were treated as successive petitions). For example, in Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.1996), the Eleventh Circuit noted, “Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions. That was true before [the AEDPA] was enacted, and it is equally true, if not more so, under the new act.” This reasoning is consistent with the Supreme Court’s observation in McCleskey v. Zant, that “a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

A review of pur case law reveals instances, prior to the enactment of the AEDPÁ, where a petitioner sought relief from judgment pursuant to Rule 60(b) which were construed as successive petitions. In Bonin v. Vasquez, 999 F.2d 425 (9th Cir.1993), we held that attorney neglect is insufficient to warrant review of additional claims under Rule 60(b) which could have been raised in an initial habeas petition. Id. at 427-31. Similarly, in Clark v. Lewis, 1 F.3d 814 (9th Cir.1993), we refused to consider a Rule 60(b) motion based on subsequent intervening case law. Id. at 825-26.

In most cases when the factual predicate for a Rule 60(b) motion also states a claim for a successive petition under 28 U.S.C. § 2244(b), as it does in this case, the Rule 60(b) motion should be treated as a successive habeas petition. This is consistent with general habeas corpus jurisprudence, for a “Rule 60(b) motion following the entry of a final judgment in a habeas ease raises policy concerns similar to those implicated by a second petition Bonin, 999 F.2d at 428. •

Thus, we agree with the district court’s conclusion that Thompson’s 60(b) motion must be treated as a- successive petition governed by the AEDPA. We do not' foreclose the' possibility, however, that under a different factual situation a 60(b) motion filed after denial of an initial petition for habeas corpus would not have to comply with the AEDPA’s successive petition requirements.³

III.

Having concluded that the 60(b) motion must be treated as a successive petition and Thompson having requested that the appeal of the denial of the 60(b) motion be treated alternatively as a request for authorization to consider the application for a successive petition, the question’ is whether this is a matter properly before the en banc court to determine. Section 2244(b)(3) as amended by the AEDPA provides:

(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court, of appeals to file a second or successive application shall not be appeal-able and shall not be the subject of a petition for rehearing ■ or for a writ of certiorari. 28 U.S.C. § 2244(b)(3)(A)-(E).

The obvious question is whether under (B) only a three judge panel .can consider whether to authorize the district court to consider this 60(b) motion, since it must be treated as a second or successive application for a writ of habeas corpus.

The appeal of the 60(b) motion is currently before the en banc court. As is so often the case, decisions must be made immediately before an impending date of execution. Certainly, if at all possible, a decision upon whether a successive application should be granted and a stay issued should be decided on the merits rather having a person executed because of time constraints and procedural niceties.

The Fourth Circuit in In re Vial, 115 F.3d 1192, 1193 (4th Cir.1997), convened an en banc court to consider- a request for permission to file a second or successive motion to vacate a prisoner’s sentence pursuant to 28 U.S.C. § 2255, which involved the application of the same requirements of the AEDPA provisions. In this case, the en banc court already has before it the appeal of the denial of the 60(b) motion.

The en banc court could remand to the three judge panel that considered the original habeas petition to determine whether consideration of the 60(b) motion is authorized. This would be a waste of judicial resources. The grant or denial of the authorization would be subject to sua sponte review by the en banc court empaneled to hear this case. Although § 2244(b)(3)(E) provides that “the grant or denial of an authorization by a court of appeal to file a second or successive application shall not be appealable and shall not be subject to a petition for rehearing or for a writ of certiorari,” the language does not preclude sua sponte review by an en banc court. It merely precludes the parties from seeking á rehearing. See Triestman v. United States, 124 F.3d 361, 367 (2nd Cir.1997). Triestman involved a three judge panel sua sponte ordering a rehearing, but the principle is equally applicable to an en banc court sua sponte ordering a rehearing. The court stated:

The parties also agree that, notwithstanding the restrictions on appealability in § 2244(b)(3)(E), this court has the authority to order a rehearing sua sponte. It is well-established that a court of appeals is entitled both to reconsider a prior decision sua sponte, see, e.g., United States v. Melendez, 60 F.3d 41, 44 (2d Cir.1995), vacated in part on other grounds, 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996), and to order a rehearing sua sponte, see, e.g., Krimmel v. Hopkins, 56 F.3d 873, 874 (8th Cir.), cert. denied, 516 U.S. 1015, 116 S.Ct. 578, 133 L.Ed.2d 501 (1995). By mandating that the initial decision of the court of appeals “shall not be the subject of a petition for rehearing” (emphasis added), § 2244(b)(3)(E) provides only that a disappointed litigant may not ask the court to reconsider its certification decision. By its plain terms, it does not purport to limit the court’s own power to review its decisions or to undertake a rehearing. As such, the government concedes, and we agree, that under the AEDPA, a court of appeals retains the authority to order a rehearing sua sponte.

Id.

Judge Kleinfeld’s opinion expresses the fear that there could be manipulation as to whether the three judge panel or the en banc court makes the authorization decision. This fear is unfounded because the en banc court designated to hear this Thompson ease would always be in a position to review sua sponte the decision of the three judge panel.

This appeal of the denial of the 60(b) motion is currently before us. The appeal can reasonably be considered as a motion for authorization and the en banc court can reasonably be considered to have the authority to make the decision. This enables our court to reach the merits within the time constraints engendered by the impending date set for execution. Although other procedures could be employed, they would involve the likelihood of granting a stay or the unfortunate prospect of never reaching the merits before the date of execution.

IV.

We have concluded that Thompson’s appeal from the district court’s denial of his Rule 60(b) motion must meet the requirements of a successive petition under the AEDPA. We also have concluded that Thompson’s request for authorization to file a second petition is properly before this en banc court. Accordingly, we must decide whether a successive petition under 28 U.S.C. § 2244(b) as amended by the AEDPA may be used to challenge a déath sentence, when the newly proffered evidence relates to guilt of the offense constituting the special circumstance and not to guilt of the homicide. We interpret the AEDPA’s amendments to § 2244(b) to permit a petitioner, in a successive petition, to establish that he is ineligible for the death penalty.

Prior to the enactment of the AEDPA, the Supreme Court articulated an “actual innocence exception” to the bar arising from the doctrine of “abuse of the writ” against bringing claims in a successive habeas petition. This exception requires that “one must show by clear and convincing evidence that, but for constitutional error,, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Because Thompson presents new evidence regarding the rape conviction, the lone special circumstance that made him eligible for the death penalty under California law, his request to file a successive petition is undoubtedly encompassed by the Sawyer standard.

In amending § 2244(b), Congress adopted language similar to that articulated in Sawyer, requiring newly discovered facts which, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of- the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).

We note the difference between the two standards-“eligible for the death penalty” under Sawyer, and “guilty of the underlying offense” under § 2244(b)(2)(B)(ii) as amended by the AEDPA. We consider this difference in determining whether, because Thompson is not asserting actual innocence of the homicide, but rather his ineligibility for the death penalty, he is stating a claim upon which relief may be granted. In effect, we must decide whether, the scope of the “actual innocence” standard articulated in Sawyer has been superseded by a narrower exception in the AEDPA.' Under a narrower reading, an anomalous situation could bp created where Thompson could challenge ,his rape conviction in a successive petition but, even if the conviction were overturned, he could not challenge his death sentence.

Under the canons of statutory construction, the similarity of the language between Sawyer and § 2244(b)(2)(B)(ii) potentially cuts both ways. On the one hand, the fact that the standards are nearly identical suggests that Congress intended to codify the Sawyer standard. On the other hand, the slight difference between the two could be read as suggesting that Congress intended just the opposite: to enact a provision similar to but more stringent than the Sawyer standard.

However, unlike Sawyer, the standard in § 2244(b) applies to all habeas petitions, not just capital habeas petitions. For that reason, it would not have made sense for Congress to adopt, without any changes, the Sawyer standard referring to eligibility “for the death penalty,” since the statute would have to apply to cases where the petitioner did not receive the death penalty. Thus, the need to cover non-capital habeas petitions best explains the slight difference in wording between the Sawyer “actual innocence” standard and § 2244(b)(2)(B)(ii).

Furthermore, the “underlying offense” in a death penalty case is capital murder rather than merely homicide. Under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its progeny, the special circumstances or aggravating factors making a defendant eligible for the death penalty must be particularly alleged in the indictment. Thus, by claiming the constitutional infirmity of the lone special circumstance that made him eligible for the death penalty, Thompson is challenging his conviction of the “underlying offense” of capital murder.

Because the words “underlying offense” encompass a charge of capital murder and because of the likelihood that the difference in the language between the Sawyer standard and new § 2244(b)(2) (B) (ii) was to accommodate non-capital as well as capital ha-beas petitions, we hold that Thompson’s claim that he is ineligible for the death penalty due to the constitutional infirmity of the rape conviction, which stands as his sole special circumstance, states a claim under § 2244(b).⁴

V.

Since Thompson has stated a claim for which relief may be granted under § 2244(b), we must apply the standard of review articulated in that statute in determining whether to authorize the filing of a successive petition in the district court. Section 2244(b)(2)(B) provides that a prisoner may not file a successive petition in district court unless:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(B). A court of appeals “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application” satisfies the standard in § 2244(b)(2). 28 U.S.C. § 2244(b)(3)(C); accord Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997). Thompson fails to make a prima facie showing of the requirement under § 2244(b)(2)(B)(ii).

The Supreme Court in Calderon v. Thompson stated that the evidence before it was not enough to meet the Sawyer standard. - U.S. at -, 118 S.Ct. at 1503-04. Specifically, the Court recounted that there was evidence of intercourse with Thompson, “extensive evidence of restraint,” “injury to her right wrist with surrounding bruising .... consistent with injuries caused by handcuffs,” “other braises on her ankles, palms, left elbow, and left wrist, all of which were caused at or near the time of death,” and that “Fleischli’s shirt and bra had been cut down the middle and pulled down to her elbows, exposing her breasts and restraining her arms” and her “mouth had been gagged with duct tape.” Id. at-, 118 S.Ct. at 1503. When Thompson was arrested in Mexico he had handcuffs in his pocket.

The Court also suggested that Fleischli’s murder was evidence that she had been raped, and noted that “[t]wo jailhouse informants, though discredited to a substantial extent at trial, testified that Thompson had confessed the rape (as well as the murder) to them.” Id. at-, 118 S.Ct. at 1503-04. Finally, the Court repeated the district court’s observation that “Thompson’s own testimony ‘was devastating to his defense,’ ” suggesting that “since Thompson lied about almost every other material aspect of the case, the jury had good reason to believe he lied about whether the sex was consensual.” Id. at-, 118 S.Ct. at 1504.

The Court recognized that we had not considered the allegations in Thompson’s Rule 60(b) motion. See id. at-, 118 S.Ct. at 1504. Thus, the Supreme Court’s analysis explicitly did not include the evidence now before us regarding Leiteh’s statements. Nevertheless, we hold that Thompson has not made a prima facie showing that this additional evidence, viewed in light of the evidence as a.whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found Thompson guilty beyond a reasonable doubt of rape, which was the sole aggravating factor supporting the death penalty.

By “prima facie showing” we understand [it to be] simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.... If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition, we shall grant the application.

Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (citing Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)).

In considering whether a prima facie case exists, it is important to consider the strength of the evidence that Leitch ever made these statements and the likelihood they would be credible to a jury. Furthermore, even assuming he made the statements and they were trae, whether they would have any likelihood of establishing that Thompson was actually innocent of the rape in light of the overwhelming evidence to the contrary is not clear. The affidavits of persons who related what Leitch said were not only hearsay but related conflicting stories. The only statement by Leitch himself that has been produced is one that he made in his 1995 parole hearing after the Thompson trial, but while the first habeas petition was pending. He stated “when I came in the apartment earlier, it looked like somebody were [sic] having sex out in the middle of the apartment, so I left, and I came back later.” He also said she wasn’t screaming. Later in the proceeding, in clarifying where Thompson and Fleisehli were located at the time, he affirmed that it was just about the same place she was killed. Then the presiding officer asked “I think there is some implication here that he might have killed her because he wanted to force himself on her sexually and she resisted. But you don’t know that that’s the case, right?’’ To which Leitch responded “No, I don’t.” ’ '

This minimal evidence that Leitch observed Thompson and Fleisehli having sex at the spot on the floor where she was ultimately killed and wasn’t screaming provides little support for a claim of actual innocence by Thompson, especially since his claim was that the consensual sex occurred on the bed. Fleischli’s body was found with duct tape over her mouth. This would provide an easy explanation for why there were no screams. It is also significant that‘this statement" at the 1995 parole hearing conflicts with his statements at parole hearings before and after, in which he stated that Thompson had raped Fleisehli. It also conflicts with the statement he made to his ex-wife, Tracy Leitch shortly after Fleischli’s death, that Thompson had “probably tried to rape [Fleisehli], and she wouldn’t go for it.” The inconclusive character of this evidence forecloses any reliance upon Leitch’s statements as a basis for relief.

Thompson also relies on the statement of Floyd Owens who had been employed as a deputy sheriff and was involved in the Fleisehli murder investigation. He furnished an affidavit concerning his recollection of his responses when interviewed by an investigator and an attorney for Thompson in 1997. He states in the affidavit:

2. I retired from the Sheriff’s Department before the case against Thomas Thompson and David Leitch proceeded to preliminary hearing. Since moving to Nevada in August of 1982, I have not made any effort to remain informed regarding the matter. My deposition was taken by Thompson’s attorneys on February 6, 1992, regarding the investigation of the Fleisehli rape/murder. I found it difficult being deposed about the case in 1992, due to the passage of time. Not surprisingly, my recollection has not improved with time.

5. When I spoke to Thompson’s investigator and Mr. Denvir, about the crime scenario they asked me about, and indicated the source of the version may have been Leiteh, I was referencing the transcripts of his statements when he was arrested. Leiteh had given three or four versions of what had happened, so it is difficult for me to remember almost 16 years after the fact what those versions had been. At the time I spoke to Mr. Denvir and his investigator I did not believe, and did not intend to convey,, that Leiteh told me directly any version of the crime other than those stated in his initial interview after his arrest.

Owens’ affidavit fails to establish that Leiteh conveyed a consistent account of his observations on the night of the murder. The fact that Leiteh may have related a version of consensual sex among several other versions provides little support for Thompson’s claim of actual innocence.

An affidavit by Tamar Todd, a paralegal employed by the public defenders office, stated she would testify that she met with Leiteh in 1997 in prison and Leiteh told her that on the night in question he saw Thompson and Fleischli have sex on the floor in the square main room of the apartment, that there was nothing to indicate that Thompson was raping Fleischli, and that Leiteh believed they were having consensual sex.

Andrew Love, an attorney for Thompson, submitted an affidavit that Leitch’s former attorney, Ronald Kreber, now Judge Kreber, told Love in 1997 that Leiteh had informed him prior to Leitch’s trial that on the night Fleischli was killed he had returned to the apartment he shared with Thompson, saw Fleischli and Thompson having consensual sex, and then left.

There is little doubt that Leiteh did tell a story to some persons that he observed Thompson and Fleischli having sex on the floor where she was ultimately killed, and that on some occasions he said he thought it was consensual. It is also true that Leiteh, on several occasions, said he believed Thompson raped Fleischli. The credibility of his various stories is in serious doubt, the nature of his observations is questionable, and conflict with Thompson’s statements about where he had consensual sex with Fleischli seriously diminish any impact that Leitch’s statements could have.

In light of the evidence viewed as a whole, Thompson fails to present a prima facie case that he could establish through “clear and convincing” evidence that no reasonable fact-finder could have found him guilty of capital murder. For these reasons, we deny his request for authorization to file a successive habeas corpus petition in the district court.

The district court’s denial of the Rule 60(b) motion is AFFIRMED. Pursuant to 28 U.S.C. § 2244(b)(3)(A), request for authorization to file a successive petition is DENIED. Thompson’s request for a stay of execution is DENIED.

1 . Cir. R. 22-3(a)(3) provides, in pertinent part: When a case is pending before a death penalty en banc court, any additional appeal or a matter pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event, in its discretion, may review the panel decision. The determination as to whether the case is assigned to the panel or to the en banc court is made by the Chief Judge in consultation with the concerned panels.

2 . Fed. R Civ. P. 60(b) provides that:

[O]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or (6) any other reason justifying relief from the operation of the judgment.

3 . For example, if the State’s misconduct prevented the defendant from testing potentially exculpatory evidence which might provide the information necessary to assert a factual predicate for a successive petition, an independent Rule 60(b)(3) motion might be appropriate. In such a case, an application under section 2244 would afford no relief because the petitioner would not have the necessary exculpatory evidence in his possession, and the Slate might well have 'an incentive to avoid its disclosure obligations in habeas proceedings under Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir.1992). Thus, under those circumstances, it would be unfair and incongruent to treat a Rule 60(b)(3) motion as functionally equivalent to a successive petition. That is but one example, but it suffices to say that a bright line rule equating all Rule 60(b) motions with successive habeas petitions would be improper.

4 . We disagree with the Seventh and Eleventh Circuit decisions rejecting a petitioner's claim of innocence of the death penalty as not cognizable under § 2244(b)(2)(B). See Burris v. Parke, 116 F.3d 256, 258 (7th Cir.1997); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir.1997).