Spitznas v. Boone

• Decision Date: 29 September 2006
• Docket Number: No. 05-6236.,05-6236.
• Citation: 464 F.3d 1213
• Parties: Douglas A. SPITZNAS, Petitioner-Appellant, v. Bobby BOONE; Bobby Jones, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1213

464 F.3d 1213

Douglas A. SPITZNAS, Petitioner-Appellant, v. Bobby BOONE; Bobby Jones, Respondents-Appellees.

No. 05-6236.

United States Court of Appeals, Tenth Circuit.

September 29, 2006.

Submitted on the briefs:^* Douglas A. Spitznas, pro se.

William R. Holmes, Assistant Attorney General, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Appellees.

Before BRORBY and EBEL, Circuit Judges, and KANE,^** District Judge.

EBEL, Circuit Judge.

The AEDPA-amended habeas corpus statutes¹ restrict the power of the federal courts to entertain second or successive applications for writs of habeas corpus. See 28 U.S.C. § 2244. Before a petitioner may file a second or successive 28 U.S.C. § 2254 petition in the district court, he must successfully apply to this court for an order authorizing the district court to consider the petition. See id. § 2244(b)(3).² A second or successive 28 U.S.C. § 2255 motion must also be certified by a panel of this court pursuant to § 2244 before it may proceed in district court. See 28 U.S.C. § 2255.

In Lopez v. Douglas, 141 F.3d 974 (10th Cir.1998), we announced a rule that treated all Fed.R.Civ.P. 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of § 2244(b). Id. at 975. Recently, however, the Supreme Court clarified that not all 60(b) motions in such proceedings constitute second or successive petitions. See Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Some 60(b) motions are in fact "true" 60(b) motions, free from § 2244's requirements. See id. at 2647. Here, Mr. Spitznas is appealing the district court's denial of his Rule 60(b) motion seeking relief from the dismissal of his § 2254 petition. In light of the new landscape created by Gonzalez, we will first lay out the law that applies to this case. We will then apply that law to Mr. Spitznas's appeal to reach an appropriate disposition.

I. APPLICABLE LAW

Our first task in laying out the law is to enunciate the substantive rule dictating when, pursuant to Gonzalez, a pleading denominated a Rule 60(b) motion that arises within a habeas context should be treated as a second or successive habeas petition and when it should be treated as a "true" 60(b) motion.³ We will then address the proper procedures, in both the district court and the appellate court, for disposing of such Rule 60(b) motions.

A. Second or Successive Habeas Petitions vs. True Rule 60(b) Motions

Under Gonzalez, a 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction. See 125 S.Ct. at 2651. Conversely, it is a "true" 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, id. at 2648 n. 4; or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition, id. at 2648.

Some examples of Rule 60(b) motions that should be treated as second or successive habeas petitions because they assert or reassert a federal basis for relief from the underlying conviction include: a motion seeking to present a claim of constitutional error omitted from the movant's initial habeas petition, see id. at 2647, 2648; a motion seeking leave to present "newly discovered evidence" in order to advance the merits of a claim previously denied, see id. at 2647; or a motion "seek[ing] vindication of" a habeas claim by challenging the habeas court's previous ruling on the merits of that claim, id. at 2647-48.

By contrast, a 60(b) motion that challenges only the federal habeas court's ruling on procedural issues should be treated as a true 60(b) motion rather than a successive petition. See id. at 2648 & n. 4. Thus, for example, a motion asserting that the federal district court incorrectly dismissed a petition for failure to exhaust, procedural bar, or because of the statute of limitations constitutes a true 60(b) motion. See id.

A Rule 60(b) motion asserting fraud or other defect in the integrity of the federal habeas proceeding may also constitute a true 60(b) motion, although this type of motion requires a more nuanced analysis. For example, whether a 60(b) motion that alleges a defect in the integrity of the habeas proceeding based upon a claim of fraud on the court constitutes a true 60(b) motion depends on the fraud alleged. If the alleged fraud on the court relates solely to fraud perpetrated on the federal habeas court, then the motion will be considered a true 60(b) motion. See id. at 2648 n. 5 (citing example of witness's allegedly fraudulent refusal to testify at federal habeas hearing). Thus, an allegation that the state presented fraudulent testimony before the habeas court that was separate and distinct from any previous fraud alleged to have tainted the initial conviction or direct appeal may be the subject of a true 60(b) motion. However, if the fraud on the habeas court includes (or necessarily implies) related fraud on the state court (or the federal district court that convicted and/or sentenced the movant in the case of a § 2255 motion), then the motion will ordinarily be considered a second or successive petition because any ruling would inextricably challenge the underlying conviction proceeding.⁴

B. Procedural Disposition in the District Court

Having laid out the substantive rules, we now turn to the proper procedural disposition of Rule 60(b) motions in habeas cases. We begin with steps to be followed by district courts in this circuit when they are presented with a Rule 60(b) motion in a habeas or § 2255 case. The district court should first determine, using the criteria we have outlined above, whether the motion is a true Rule 60(b) motion or a second or successive petition.

If the district court concludes that the motion is a true Rule 60(b) motion, it should rule on it as it would any other Rule 60(b) motion. If, however, the district court concludes that the motion is actually a second or successive petition, it should refer the matter to this court for authorization under § 2244(b)(3). See 28 U.S.C. § 1631 (authorizing transfer of civil action or appeal filed without jurisdiction, in the interest of justice, "to any other court in which the action or appeal could have been brought at the time it was filed or noticed"); Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997) (per curiam). In the case of a "mixed" motion — that is, a motion containing both true Rule 60(b) allegations and second or successive habeas claims — the district court should (1) address the merits of the true Rule 60(b) allegations as it would the allegations in any other Rule 60(b) motion, and (2) forward the second or successive claims to this court for authorization.

Some courts, including at least two circuit courts of appeals, have required a movant bringing a "mixed" motion either to seek authorization to file the entire motion as a second or successive petition, or to delete the second or successive claims so as to proceed entirely in the district court on true 60(b) claims that do not require authorization. Reid v. Angelone, 369 F.3d 363, 375 (4th Cir.2004); Pennington v. Norris, 257 F.3d 857, 858-59 (8th Cir.2001); Townsend v. Vasbinder, No. 04-CV-74846, 2005 WL 2246988, at *1 (E.D.Mich. Sept.15, 2005) (unpublished). We do not adopt this analysis, because it is based on rules developed in the context of exhaustion of state court remedies. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Whereas the exhaustion doctrine seeks to protect the states' concomitant role of correcting constitutional violations in our system of dual sovereignty, no similar comity or federal concerns exist in deciding a mixed 60(b) motion, which only requires proceedings at different levels within the same federal system. Because no similar overarching constitutional principles exist to justify incorporating the "all or nothing" approach developed in the context of the total exhaustion rule into this context, we decline to do so.⁵

C. Procedural Disposition and Requirements on Appeal

We next address the procedures to be followed by this court when we receive appeals or transfers resulting from the district court's disposition of a purported Rule 60(b) motion in a habeas case. If the district court correctly treated the motion (or any portion thereof) as a "true" Rule 60(b) motion and denied it, we will require the movant to obtain a certificate of appealability (COA) before proceeding with his or her appeal. In holding that a COA is required to appeal from the denial of a true Rule 60(b) motion in the district court, we join every circuit but one that has addressed this issue. Compare United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 2953, 162 L.Ed.2d 879 (2005); United States v. Vargas, 393 F.3d 172, 174 (D.C.Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 644, 163 L.Ed.2d 521 (2005); Reid, 369 F.3d at 369; Gonzalez v. Sec'y Dep't of Corrs., 366 F.3d 1253, 1263 (11th Cir.2004), aff'd on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir.2001) (per curiam); Rutledge v. United States, 230 F.3d 1041, 1046-47 (7th Cir.2000); Morris v. Horn, 187 F.3d 333, 336, 338-40 (3d Cir.1999); Langford v. Day, 134 F.3d 1381, 1382-83 (9th Cir.1998) with Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir.2002) (holding COA not required).

Any other conclusion would lead to an absurd result contrary to Congress's intent in enacting § 2253. The purpose of the COA requirement "is to prevent frivolous cases from clogging appellate dockets and to promote finality." Vargas, 393 F.3d at 175 (citing ...