422 F.3d 419 (6th Cir. 2005), 03-4085, Post v. Bradshaw

Docket Nº:03-4085.
Citation:422 F.3d 419
Party Name:Ronald POST, Petitioner-Appellant, v. Margaret BRADSHAW, Defendant-Appellee.
Case Date:July 29, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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422 F.3d 419 (6th Cir. 2005)

Ronald POST, Petitioner-Appellant,


Margaret BRADSHAW, Defendant-Appellee.

No. 03-4085.

United States Court of Appeals, Sixth Circuit.

July 29, 2005

Rehearing En Banc Denied Sept. 13, 2005.

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Timothy R. Payne, Public Defender's Office Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.

Rachel G. Troutman, Ohio Public Defender's Office, Tara L. Berrien, Asst. Atty. General, Attorney General's Office of Ohio, Columbus, OH, for Respondent-Appellee.

Before: SILER, BATCHELDER, and COLE, Circuit Judges.



The district court entered an order based upon the procedure outlined in First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976), stating that it is inclined to grant Petitioner Post's Fed.R.Civ.P. 60(b) ("Rule 60(b)") motion to vacate the judgment dismissing his habeas corpus petition in order to permit Post to undertake limited discovery. Following the entry of this order, Post filed a motion with this court seeking remand. Because the district court committed legal error by failing to recognize that the relief sought in the Rule 60(b) motion is barred by 28 U.S.C. § 2254(i), and because Post's motion constitutes a second or successive habeas petition that the federal courts do not have the power to adjudicate, Post's motion for remand must be DENIED.


The facts in this case are set out in detail in Judge Wells's order. The facts relevant to our inquiry are these. In November 1997, Mr. Post, assisted by the Ohio Public Defenders office and one court-appointed private attorney, filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. Following the filing of the initial petition, Judge Wells granted in part and denied in part Post's augmented motion to obtain discovery pursuant to Habeas Rule 6. Mr. Post's case was then handed from attorney-to-attorney in the Public Defenders office, although the private attorney continued as counsel until he obtained permission from this court to withdraw in June 2004. None of Post's counsel ever conducted the discovery, and in May 2003, the district court denied his petition for habeas corpus on the merits.

After appealing the district court's denial of a certificate of appealability for certain claims, Post's attorneys filed a Rule 60(b)(6) motion for partial relief from the judgment denying habeas relief. The district court issued an order stating that counsel's failure to pursue discovery was "inexcusable neglect" cognizable under Rule 60(b)(6), and stating its intention to grant the motion. Post's attorneys then filed in this court a motion for remand.


At the time that the Rule 60(b) motion was filed in the district court, Post already had an appeal pending in this court which deprived the district court of jurisdiction to issue a final ruling on the motion. See Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993). Accordingly, the district court provisionally granted a Rule 60(b) motion pursuant to the procedure

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this court prescribed in First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976).

Under the rule in Hirsch, where a party wishes to file a Rule 60(b) motion but already has an appeal pending in this court, "the proper procedure is for him to file his motion in the District Court. If that court indicates that it will grant the motion, the appellant should then make a motion in this court for a remand of the case in order that the District Court may grant the motion . . . ." Id. at 346 (citation omitted). On Hirsch review, we may not simply grant such motions for remand as a matter of course—particularly where, as here, the basis for remand cited by the district court is predicated on legal error. It would be odd indeed if the Hirsch procedure—which is intended to promote judicial efficiency—nonetheless required this court to rubberstamp remand motions arising from Rule 60(b) claims that cannot succeed as a matter of law.

As an initial matter, we note that the district court issued its provisional order without the benefit of relevant case law that was subsequently handed down. In In re Abdur 'Rahman, 392 F.3d 174 (6th Cir. 2004) (en banc), we held that in cases filed after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), "[in] which the factual predicate in support of the motion attacks the manner in which the earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b), " this court may consider the claim as a motion under Rule 60(b) instead of dismissing it as a second or successive habeas petition. Abdur'Rahman, 392 F.3d at 177. In Gonzalez v. Crosby, --- U.S. ----, 125 S.Ct. 2641 (2005), decided after Abdur 'Rahman, the Supreme Court held that Rule 60(b) remains viable in the habeas context only to the extent it is "not inconsistent with" AEDPA and other applicable federal statutory provisions and rules. Gonzalez, 125 S.Ct. at 2646. Gonzalez also held that a habeas petitioner's filing that "seeks vindication of" a federal habeas claim is, if not in substance a habeas corpus application, "at least similar enough that failing to subject it to the same requirements would be 'inconsistent with'" the AEDPA-amended habeas statutes. Id. at 2647. Finally, Gonzalez held that "[i]f neither the [Rule 60(b)] motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules." Id. at 2648. Because it is a Supreme Court case decided subsequent to Abdur' Rahman, Gonzalez controls our analysis of Post's Rule 60(b) motion.


The threshold issue we must decide is whether the district court has jurisdiction to grant Post's motion, even if it purports to be based on a ground enumerated in Rule 60(b). In determining that Post's motion falls within one of the grounds enumerated in Rule 60(b)—specifically, Rule 60(b)(6)—the district court relied upon Fuller v. Quire, 916 F.2d 358 (6th Cir. 1990). In Fuller, we held that the district court properly granted a Rule 60(b)(6) motion for "inexcusable neglect" where the petitioner's attorney defaulted the petitioner's civil case by failing to appear at a docket call, and where the attorney admitted that he had no cause for his negligence. Id. at 361. The district court failed to take into account, however, that unlike Fuller's case, Post's case is a post-conviction collateral attack brought pursuant

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to 28 U.S.C. § 2254, as amended by AEDPA § 104. Relevant to this case, § 2254 specifically mandates that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i). If Post's Rule 60(b) motion "arises under" § 2254, then it is precluded by the explicit provisions of § 2254(i). We conclude that this motion is thus precluded.

Post's motion seeks relief from the judgment entered in his habeas proceeding brought under 28 U.S.C. § 2254. The motion seeks relief based on the failure of Post's counsel to pursue the discovery for which Post had sought and obtained the district court's approval. We think it is clear that, whatever appellation we might apply to counsel's neglect, the ground on which Post seeks relief in this Rule 60(b) motion is the incompetent and ineffective representation he received during that federal post-conviction collateral review. But relief on that ground is not permitted under AEDPA.

Section 2254 is expansive in its prohibition here: "The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i). The language of this statute is clear. It expressly bars relief grounded on claims of incompetent or ineffective counsel in federal post-conviction proceedings. See Duncan v. Walker, 533 U.S. 167, 172-73 (2001) (highlighting the term "federal" in 28 U.S.C. § 2254(i) to illustrate that Congress deliberately included "federal" in several sections of AEDPA to denote the applicability of provisions—such as the rule against ineffective assistance claims—to federal collateral post-conviction proceedings). And it bars "relief," not simply particular kinds of relief, such as a writ of habeas corpus. We conclude, therefore, that the relief Post seeks is explicitly barred by the provisions of § 2254(i).1

It is well settled that the Federal Rules of Civil Procedure "do not extend or

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limit federal jurisdiction, but they implement the exercise of existing jurisdiction, which has been conferred by statute." Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165, 168 (5th Cir. 1950); see also Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (noting that the federal jurisdiction created by statute may not be extended or restricted by court-enacted rules). It is equally "well established that federal courts are courts of limited jurisdiction, possessing only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree." Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003) (internal citations omitted). The jurisdiction of federal courts to entertain Rule 60(b) challenges to judgments entered in habeas proceedings brought under AEDPA, therefore, must be predicated on the very same jurisdiction granted to the federal courts by AEDPA. Gonzalez makes clear that, post-AEDPA, Rule 60(b) continues to have "an unquestionably valid role to play in habeas cases." Gonzalez, ...

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