Abdur'Rahman v. Bell

• Decision Date: 13 July 2007
• Docket Number: No. 02-6547.,No. 02-6548.,02-6547.,02-6548.
• Parties: In re Abu-Ali ABDUR'RAHMAN, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

493 F.3d 738

In re Abu-Ali ABDUR'RAHMAN, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 02-6547.

No. 02-6548.

United States Court of Appeals, Sixth Circuit.

Submitted: March 17, 2006.

Decided and Filed: July 13, 2007.

ON BRIEF:

Bradley A. MacLean, Stites & Harbison, Nashville, Tennessee, William P. Redick, Jr., Nashville, Tennessee,

for Petitioner. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Respondent.

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

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

OPINION

SILER, Circuit Judge.

In 2004, our en banc court concluded that Abu-Ali 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 Abdur'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.Ed.2d 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.

R. GUY COLE, JR., Circuit Judge, dissenting.

On August 1, 2005, the U.S. Supreme Court vacated our prior en banc judgment in this case, In re Abdur'Rahman, 392 F.3d 174 (6th Cir.2004), vacated by Bell v Abdur'Rahman, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909 (2005), and remanded the case for further consideration in light of Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), decided not long after our decision in Abdur'Rahman. A majority of the en banc Court directed that the case be returned to the original appellate panel, rather than the district court, for a decision consistent with the Supreme Court's remand. In re Abdur'Rahman, 425 F.3d 328 (6th Cir. 2005); see id. at 329 (Martin, J., dissenting) (stating that, consistent with Alley v. Bell, 405 F.3d 371 (6th Cir.2005), and our customary practice, the case should be remanded to the district court for a determination, in the first instance, of whether Abdur'Rahman's motion may be treated as a Rule 60(b) motion).

The panel majority now holds, as I would, that Crosby requires treating Abdur'Rahman's motion to reopen the district court's judgment (specifically, that portion of the judgment dismissing his prosecutorial-misconduct claims as procedurally defaulted) as a Rule 60(b) motion, rather than a second or successive habeas petition. The majority's conclusion should put an end to our consideration of the matter. Once again, if we were following proper procedure, the case would be remanded to the district court for a determination of whether Abdur'Rahman's Rule 60(b) motion should be granted. After the district court rules, and assuming that there is an appeal from that ruling, we will then have the opportunity to weigh in on the merits of Abdur'Rahman's motion. Instead of deferring to the district court, however, the majority needlessly takes it upon itself to decide how the motion should be disposed of.

As if this were not enough, the majority's merits analysis amounts to nothing more than an attempt to resurrect the failed arguments of the dissenting opinion to our en banc judgment. Judge Siler argued in his en banc dissent that even if Abdur'Rahman's motion was properly brought under Rule 60(b), it could only be classified as a Rule 60(b)(1) motion and therefore, having been filed more than one year after the district court issued its habeas judgment, must be dismissed as untimely. See Fed.R.Civ.P. 60(b) (stating that a motion brought under Rule 60(b)(1) must be filed "not more than one year after the judgment, order, or proceeding was entered or taken"). A majority of the en banc Court rejected the dissent's arguments, concluding instead that Abdur'Rahman's motion fell under Rule 60(b)(6) and that it was timely filed under that subsection's reasonable-time requirement. In re Abdur'Rahman, 392 F.3d at 185 ("Abdur'Rahman's motion is properly characterized as a Rule 60(b)(6) motion."); id. ("Abdur'Rahman has satisfied the reasonable time requirement" of Rule 60(b)(6)). The panel majority does not cite any authority from the Supreme Court's order remanding the case to this Court, or from Crosby or any subsequent decision of the Supreme Court or this Court, suggesting that anything has changed such that the panel majority's previously rejected views now have purchase.¹ Thus, I cannot help but conclude that my colleagues are overreaching.

Having determined that our en banc disposition in no way conflicts with Crosby, I would remand the case to the district court to determine whether Abdur'Rahman's Rule 60(b) motion should be granted. However, since the panel majority sees fit to reach the merits, I will do the same.

The procedural irregularities of the majority's holding aside, I disagree with my colleagues' conclusion that Abdur'Rahman's motion is best characterized as one under Rule 60(b)(1), rather than Rule 60(b)(6). Tellingly, even though the State had the benefit of the panel majority's reasoning as a result of Judge Siler's en banc dissent, the State does not, even in its supplemental briefing on remand, argue that Abdur'Rahman's motion must be considered under the strictures of Rule 60(b)(1).

The majority holds that because Tennessee Supreme Court Rule 39 ("TSCR 39") constituted a clarification, rather than a substantive...