Mitchell v. Rees

• Decision Date: 30 June 2011
• Docket Number: No. 09–5570.,09–5570.
• Parties: Joe Clark MITCHELL, Petitioner,v.John REES, Warden, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

651 F.3d 593

79 Fed.R.Serv.3d 1353

Joe Clark MITCHELL, Petitioner,

v.John REES, Warden, Respondent.

No. 09–5570.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 30, 2010.Decided and Filed: June 30, 2011.

ARGUED: Paul R. Bottei, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. Jennifer L. Smith, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. Jennifer L. Smith, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.Before: BATCHELDER, Chief Judge; BOGGS and GIBBONS, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Chief Judge.

Petitioner Joe Clark Mitchell appeals the district court's denial of his motion for relief from judgment, which he brought as an “independent action” in equity, as provided for by Federal Rule of Civil Procedure 60(d)(1). We AFFIRM.

I.

This is Mitchell's fourth appearance in this court. See Mitchell v. Rees (Mitchell I), 114 F.3d 571 (6th Cir.1997); Mitchell v. Rees (Mitchell II), 36 Fed.Appx. 752 (6th Cir.2002); Mitchell v. Rees (Mitchell III), 261 Fed.Appx. 825 (6th Cir.2008). For purposes of deciding this appeal, we need not recite the underlying facts or the full procedural history.

On March 10, 2009, Mitchell moved the district court for permission to amend (or resubmit) his prior motion for equitable relief in the form of an “independent action in equity,” as provided for in Rule 60(d)(1), the Rule 60 savings-clause provision. Such an action has no time limitation. The district court stated that it would be “inclined to grant this amended motion for the reason stated in its prior ruling, but given the decision of the Sixth Circuit [in Mitchell II ] and issuance of the mandate, [it] was bound by the Sixth Circuit's holding.” Thus, the district court reluctantly denied the motion but authorized Mitchell to pursue this appeal ( Mitchell IV ). ¹

II.

Rule 60 of the Federal Rules of Civil Procedure provides for “Relief from a Judgment or Order” by motion (Part (b)) or by independent action (Part (d)).² Part (d) is commonly referred to as Rule 60's “savings clause” and states: “This rule does not limit a court's power to entertain an independent action to relieve a party from a judgment, order, or proceeding....” Fed.R.Civ.P. 60(d)(1). Although such actions arise infrequently, we have had occasion to elaborate:

At this point it will also be beneficial to clarify the nature of plaintiff's action. Plaintiff continually asserts that this is an independent action ‘pursuant to Rule 60[ (d) ].’ This is not entirely accurate. Rule 60 [ (d) ] merely provides, in relevant part [that] ‘[t]his rule [i.e., Rule 60] does not limit the power of a court to entertain an independent action to relieve a party from a judgment, ... or to set aside a judgment for fraud upon the court.’ According to Wright and Miller, ‘the reference to ‘independent action’ in the saving clause is to what had been historically known simply as an independent action in equity to obtain relief from a judgment.' 11 C. Wright & A. Miller, Federal Practice & Procedure § 2868, at 237–38 (1973).Barrett v. Sec'y of Health & Human Servs., 840 F.2d 1259, 1262–63 (6th Cir.1987). Nonetheless, “[w]here the adverse party is not prejudiced[,] an independent action for relief may be treated as a 60(b) motion, and conversely, a 60(b) motion may be treated as the institution of an independent action.” Bankers Mortg. Co. v. United States, 423 F.2d 73, 81 n. 7 (5th Cir.1970); accord 11 Wright, Miller & Kane, Federal Practice & Procedure § 2868 n. 30, at 405 (1995).

Because this is an equitable action, we would ordinarily review the district court's decision for an abuse of discretion. See Barrett, 840 F.2d at 1263. In this case, however, the district court rested its decision on its perceived lack of discretion and never actually addressed the elements, limitations, or requirements of an independent action. The “indisputable elements” of an independent action are:

(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.

Barrett, 840 F.2d at 1263 (citing 11 C. Wright & A. Miller, Federal Practice & Procedure § 2868, at 238 (1973), and National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)).

Moreover, an independent action is “available only to prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998); accord Pickford v. Talbott, 225 U.S. 651, 657, 32 S.Ct. 687, 56 L.Ed. 1240 (1912) (available when enforcement of the judgment is “manifestly unconscionable”); Barrett, 840 F.2d at 1263 (“Relief pursuant to the independent action is available only in cases ‘of unusual and exceptional circumstances.’ ” (quoting Rader v. Cliburn, 476 F.2d 182, 184 (6th Cir.1973))). As other circuits have held, a “grave miscarriage of justice” is a “stringent” and “demanding” standard. Gottlieb v. S.E.C., 310 Fed.Appx. 424, 425 (2d Cir.2009); Wise v. Kastner, 340 Fed.Appx. 957, 959 (5th Cir.2009). Significantly, this is a habeas corpus case, and in that context, in order to establish that relief is required to prevent a grave miscarriage of justice, Mitchell must make a strong showing of actual innocence. Calderon v. Thompson, 523 U.S. 538, 557–58, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (holding that “avoiding a miscarriage of justice as defined by our habeas corpus jurisprudence” requires “a strong showing of actual innocence”); see Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

Mitchell contends that this court's erroneous decision ³ in Mitchell I—in which we disallowed the evidence adduced from the district court's hearing on his Batson claim—constitutes “a grave miscarriage of justice” because: (1) “the properly-held evidentiary hearing proves that he was convicted by a racially-tainted jury”; which (2) establishes a Batson (and/or Strickland ) violation; which proves (3) that “he was denied relief even though his petition was, and is, meritorious”; which means (4) this court “le[ft] [him] without a remedy for the prosecutor's racism.” Petitioner's Br. at 17. With this Rule 60(d)(1) motion, Mitchell has instituted an “independent action.” The State offers three arguments in reply: Mitchell forfeited any right to this action by failing to pursue his claim for equitable relief in Mitchell III; this independent action is preempted by Rule 60(b)(1); or, the error upon which Mitchell bases this action (that he was denied the Batson hearing) does not amount to a “grave miscarriage of justice.” We address each in turn.

A.

The State argues that Mitchell “should be deemed to have forfeited his right to assert an independent action in equity by abandoning his argument in the previous appeal to this [c]ourt,” (i.e., Mitchell III ). Respondent's Br. at 9. In the Mitchell III opinion, we noted:

Before the district court, Mitchell argued that the district court's equitable powers over its own judgment derived from Article III of the Constitution and 28 U.S.C. § 2243 provided bases separate from Rule 60(b) for providing relief. Mitchell does not raise these arguments on appeal.

Mitchell III, 261 Fed.Appx. at 828 n. 2. But Mitchell was not obligated to raise those arguments.

The district court had granted Mitchell's Rule 60(b)(6) motion and granted him relief. It was the State that appealed. On appeal, Mitchell—as appellee—argued in support of the district court's Rule 60(b)(6) award. He was not obliged to pursue or maintain his alternative bases for affirmance and is not held to have abandoned this argument just because he did not do so. Cf. Ortiz v. Jordan, 562 U.S. ––––, 131 S.Ct. 884, 892 n. 6, 178 L.Ed.2d 703 (2011).

B.

The State argues that “[t]he time limits of Rule 60(b) should not be subject to evasion through the simple expedient of characterizing the application for relief as an independent action instead of a motion,” Respondent's Br. at 9, and cites Beggerly, 524 U.S. at 46, 118 S.Ct. 1862, which says:

If relief may be obtained through an independent action in a case such as this, where the most that may be charged against the Government is a failure to furnish relevant information that would at best form the basis for a Rule 60(b)(3) motion, [then] the strict 1–year time limit on such motions would be set at naught.

We have commented similarly in an unpublished opinion:

As such [independent] actions are not time-limited, to allow them to proceed in cases covered under Fed. R. Civ. Pro. 60(b)(1), (2), and (3), which must be filed within one year of judgment, would eviscerate the time-limits.

Buell v. Anderson, 48 Fed.Appx. 491, 498 (6th Cir.2002) (citing Beggerly, 524 U.S. at 46, 118 S.Ct. 1862).

But we have elsewhere held that expiration of the time limits is a reason for an independent action (assuming the bases for such action are satisfied). “Independent actions are reserved for circumstances which do not meet the requirements for a motion under Rule 60(b), as when the one year time limit for motions based on fraud has passed.” 2300 Elm Hill Pike, Inc. v. Orlando Residence, Ltd., No. 97–6176, 1998 WL 808217, *2 (6th Cir., Nov. 16, 1998). Other courts have held similarly:

From a perusal of the six reasons under Rule 60(b) for relief from a final judgment, we find that the relief sought by the plaintiff herein comes under 60(b)(1) relating to mistake, inadvertence, surprise, or excusable neglect. However, since Rule 60(b) further provides that such relief may be obtained no more than one year after the judgment...