In re Abdur'Rahman

Decision Date13 December 2004
Docket NumberNo. 02-6547.,No. 02-6548.,02-6547.,02-6548.
Citation392 F.3d 174
PartiesIn re Abu-Ali ABDUR'RAHMAN, Movant. Abu-Ali Abdur'Rahman, Petitioner-Appellant, v. Ricky Bell, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Bradley A. MacLean, Stites & Harbison, Nashville, Tennessee, for Petitioner. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Respondent.

ON BRIEF:

Bradley A. MacLean, Stites & Harbison, Nashville, Tennessee, William P. Redick, Jr., Whites Creek, Tennessee, for Petitioner. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Respondent.

Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.

COLE, J., delivered the opinion of the court, in which MARTIN, DAUGHTREY, MOORE, CLAY, GILMAN, and GIBBONS, JJ., joined. SILER, J. (pp. 187-95), delivered a separate dissenting opinion, in which BOGGS, C.J., BATCHELDER, ROGERS, SUTTON, and COOK, JJ., joined.

OPINION

COLE, Circuit Judge.

Petitioner Abu-Ali Abdur'Rahman appeals the district court's denial of his motion for relief from that court's earlier judgment denying his petition for a writ of habeas corpus. Abdur'Rahman v. Bell, 999 F.Supp. 1073 (M.D.Tenn.1998). The district court held that petitioner's motion for relief from judgment, which he filed pursuant to Rule 60(b), amounted to an impermissible second or successive habeas petition as defined by 28 U.S.C. § 2244(b)(1).

This case requires us to determine whether and under what circumstances a prisoner may use Rule 60(b) of the Federal Rules of Civil Procedure to seek relief from a judgment dismissing a habeas petition. At issue, in particular, is whether and to what extent the availability of Rule 60(b) is restricted by the limits imposed on the filing of second or successive habeas petitions by 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, 2253-2255, 2261-2266 (2000)). Some courts have held that any motion labeled as one pursuant to Rule 60(b) remains fully viable in the habeas context and unaffected by the strictures of AEDPA. Others — including the dissent in this case — would treat any motion based on one or more of the grounds enumerated in Rule 60(b) as a second or successive habeas petition, even if the motion contained no constitutional claim at all.

Today, we eschew both of those extremes and align ourselves with those courts that use a functional approach to determine when a district court may entertain a Rule 60(b) motion filed by a prisoner who seeks to vacate a district court's judgment denying him habeas relief. Although a petitioner should not be permitted to use Rule 60(b) to avoid AEDPA's limitations on second or successive habeas petitions, the solution to that problem is not to bar Rule 60(b) motions in the habeas context altogether. Instead, we hold that a Rule 60(b) motion should be treated as a second or successive habeas petition only if the factual predicate in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction. In cases 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), the motion should be adjudicated pursuant to Rule 60(b). See Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir.2003).

Because Abdur'Rahman's motion does not constitute a direct challenge to the constitutionality of his conviction, the motion is not the functional equivalent of a second or successive habeas petition. Rather, Abdur'Rahman's motion challenges the procedural basis on which the district court's judgment denying his habeas petition rested and, therefore, should be adjudicated pursuant to Rule 60(b). For that reason, we REVERSE the district court's order of dismissal and REMAND petitioner's motion to the district court for consideration as a motion brought pursuant to Rule 60(b).

I.

The history of this case is long and circuitous. See Abdur'Rahman v. Bell, 537 U.S. 88, 123 S.Ct. 594, 154 L.Ed.2d 501 (2002) (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted); Abdur'Rahman v. Bell, No. 3:96-0380 (M.D.Tenn., Dec. 17, 2002). Therefore, we set forth only the procedural background relevant to resolving the issues before us.

In 1988, on direct appeal, the Tennessee Supreme Court affirmed Abdur'Rahman's conviction and death sentence for first-degree murder. His attempts to obtain post-conviction relief in the state court system were similarly unsuccessful. In 1996, he filed an application for a writ of habeas corpus in the federal district court and advanced several constitutional claims, two of which raised troubling questions. The first claim challenged the competency of petitioner's trial counsel; the second contained serious allegations of prosecutorial misconduct.

After hearing evidence on both claims, on April 8, 1998, the district court entered an order addressing each claim. First, the district court granted relief as to the ineffective assistance of counsel claim. Having found trial counsel ineffective, the district court granted habeas relief as to petitioner's sentence and vacated the death sentence, although the court denied relief as to petitioner's murder conviction. On appeal, however, a divided panel of this Court reinstated the death sentence, finding that although Abdur'Rahman's counsel's performance was deficient, Abdur'Rahman had not been prejudiced. Abdur'Rahman v. Bell, 226 F.3d 696 (6th Cir.2000), cert. denied, 534 U.S. 970, 122 S.Ct. 386, 151 L.Ed.2d 294 (2001).

Second, the district court held that the prosecutorial misconduct claims were procedurally barred because Abdur'Rahman failed to seek discretionary review of those claims in the Tennessee Supreme Court and the time for doing so had expired. Abdur'Rahman, 999 F.Supp. at 1080-83. However, on June 28, 2001, while the appeal from the district court's denial of Abdur'Rahman's habeas petition was pending —and in response to the United States Supreme Court's decision in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) — the Tennessee Supreme Court promulgated a rule clarifying that criminal defendants were not required to appeal to the Tennessee Supreme Court in order to be deemed to have exhausted all available state remedies concerning claims of error for federal habeas corpus purposes. See Tennessee Supreme Court Rule 39 ("TSCR 39"). TSCR 39 states in relevant part:

In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to ... file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim.

As the Tennessee Supreme Court stated, TSCR 39 was designed to "clarify that denial of relief by the [Tennessee] Court of Criminal Appeals shall constitute exhaustion of state remedies for federal habeas corpus purposes." See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies.

TSCR 39 made it clear that the district court's refusal to consider Abdur'Rahman's prosecutorial misconduct claims on the merits rested on faulty ground because Abdur'Rahman was never required to seek discretionary review of his prosecutorial misconduct claims in the Tennessee Supreme Court, as the district court believed he was. Petitioner alerted the district court to this error on November 2, 2001, when he filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from the district court's judgment of April 8, 1998, which dismissed his prosecutorial misconduct claims as procedurally barred. Petitioner's motion did not assert any new constitutional claims and did not rely on any newly discovered evidence. It merely asked the district court to vacate its order on the ground that its procedural bar ruling was based on the erroneous assumption that Abdur'Rahman was required to appeal his prosecutorial misconduct claims to the Tennessee Supreme Court.

Relying on McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.1996), which declared that "[w]e agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition," the district court characterized petitioner's motion as a second or successive habeas corpus application, governed by 28 U.S.C. § 2244. On that basis, the district court denied the motion, dismissed it for lack of jurisdiction, and transferred the case to the Court of Appeals pursuant to 28 U.S.C. § 1631. A divided panel of this Court denied petitioner relief, stating that "the district court properly found that a Rule 60(b) motion is the equivalent of a second or successive habeas corpus petition," and then held that Abdur'Rahman's petition did not satisfy the gateway criteria set forth in 28 U.S.C. § 2244(b)(2) for the filing of such a petition. Abdur'Rahman v. Bell, Nos. 98-6568/6569, 01-6504 (6th Cir., Jan. 18, 2002). This Court subsequently granted petitioner's request for rehearing en banc.

II.

We turn to the question before us: Is a motion for relief pursuant to Rule 60(b) equivalent to a second or successive habeas petition pursuant to AEDPA? After addressing that question we will apply the answer to Abdur'Rahman's case.

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