Rodwell v. Pepe

• Decision Date: 01 April 2003
• Docket Number: No. 01-2411.,01-2411.
• Citation: 324 F.3d 66
• Parties: James J. RODWELL, Petitioner, Appellant, v. Peter A. PEPE, Jr., etc., Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

324 F.3d 66

James J. RODWELL, Petitioner, Appellant, v. Peter A. PEPE, Jr., etc., Respondent, Appellee.

No. 01-2411.

United States Court of Appeals, First Circuit.

Heard February 4, 2003.

Decided April 1, 2003.

Kevin J. Reddington, for petitioner.

Dean A. Mazzone, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for respondent.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

The case at bar presents a question of first impression in this circuit regarding the circumstances under which a state prisoner may use Rule 60(b) of the Federal Rules of Civil Procedure as a vehicle for resurrecting a previously dismissed habeas petition. There are three principal schools of thought on this controversial subject. Some courts have held that Rule 60(b) remains fully velivolant in the habeas context. Others have held that the restrictions imposed on the filing of second or successive applications for habeas relief 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)), make Rule 60(b) unavailable to habeas petitioners. A third camp consists of courts that, with slight variations, advocate a course somewhere between these extremes.

We align ourselves with the third camp. AEDPA's restrictions on the filing of second or successive habeas petitions make it implausible to believe that Congress wanted Rule 60(b) to operate under full throttle in the habeas context. But even though state prisoners seeking habeas relief should not be able to use Rule 60(b) as a means of avoiding AEDPA's carefully calibrated limitations on habeas petitions, we see no justification for throwing out the baby with the bath water. Consequently, we hold that a Rule 60(b) motion should be treated as a second or successive habeas petition if — and only if — the factual predicate set forth in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction. In other cases — cases in which the factual predicate set forth in support of the motion attacks only the manner in which the earlier habeas judgment has been procured — the motion may be adjudicated under the jurisprudence of Rule 60(b).

In this instance, the petitioner's Rule 60(b) motion is the functional equivalent of a new habeas petition. Because that triggers the AEDPA's requirements for second or successive habeas petitions, we affirm the district court's order of dismissal.

I. TRAVEL OF THE CASE

Since this appeal turns on a question of procedure, the travel of the case comprises the relevant background.

In November of 1981, petitioner-appellant James J. Rodwell stood trial in a Massachusetts state court on a number of charges, including first degree murder, armed robbery, and unlawful carriage of a firearm. One of the key witnesses against him was a fellow inmate, David Nagle, who testified that, while awaiting trial, the petitioner had admitted to the murder and furnished many details. The jury found the petitioner guilty. The court thereafter imposed a mandatory term of life imprisonment on the murder charge and lesser sentences on the other counts.

In 1983, the petitioner filed an unsuccessful motion for a new trial. Two years later, the Massachusetts Supreme Judicial Court (SJC) affirmed both his conviction and the denial of his new trial motion. See Commonwealth v. Rodwell, 394 Mass. 694, 477 N.E.2d 385 (1985). The following year, the petitioner filed another unsuccessful motion for a new trial. This time, the SJC denied his application for further appellate review.

Having exhausted his state remedies, the petitioner sought a writ of habeas corpus in the United States District Court for the District of Massachusetts. He named, as the respondent, a state correctional official.¹ His petition alleged that Nagle was, in effect, an undercover government agent while he and the petitioner were incarcerated together; that Nagle's inquiries about the crime amounted to a post-indictment state interrogation without his lawyer present; that Nagle's testimony should have been excluded as procured in violation of the Sixth Amendment; and that, therefore, his conviction could not pass constitutional muster. The district court denied the petition. Rodwell v. Fair, No. 86-2455, slip op. (D.Mass. Apr. 13, 1987) (unpublished). We affirmed the denial, holding that the petitioner had not shown "cause" for failing to present evidence in support of his Sixth Amendment claim in the state court. Rodwell v. Fair, 834 F.2d 240, 241-42 (1st Cir.1987) (per curiam).

The petitioner was not deterred. Following a lull, he filed three more motions for a new trial in the state courts. Each of these was denied, and further appeals in the state system proved fruitless.

At that juncture, the petitioner again eyed a federal forum — but an obstacle loomed. The AEDPA had taken effect and, under its terms, state prisoners cannot file second or successive federal habeas petitions as a matter of right. See 28 U.S.C. § 2244(b)(3). Rather, a state prisoner who desires to file a second or successive habeas petition must secure pre-clearance from the court of appeals. See id. § 2244(b)(3)(A). On October 4, 1999, the petitioner invoked this provision and requested permission to file a second habeas corpus petition.

A panel of this court carefully considered his application and concluded that the petitioner had failed to produce any new facts, sufficient to show his actual innocence clearly and convincingly, which could not have been discovered through the exercise of due diligence at or before the time when he filed his first federal habeas petition. Rodwell v. Pepe, No. 99-2109, slip op. at 1 (1st Cir. Nov. 4, 1999) (unpublished). Consequently, the panel refused the petitioner's request to file a second federal habeas petition. Id. Under the AEDPA, this decision was final and unappealable. See 28 U.S.C. § 2244(b)(3)(E).

Attempting to find a crack in the wall that Congress had erected to guard against the profligate filing of successive applications for post-conviction relief, the petitioner repaired to the district court. On July 6, 2001, he filed a motion to reopen his original federal habeas case. Asserting that the prosecution had suppressed "exculpatory evidence" that shed doubt on Nagle's status and that "it was not until well after his conviction, direct appeal and habeas denial that th[is] significant impeachment information was unearthed," he asked the district court to reverse its earlier denial of habeas relief.

The district court, Rodwell v. Pepe, 183 F.Supp.2d 129, 133 (D.Mass.2001), reasonably construed the petitioner's motion as one brought pursuant to Federal Rule of Civil Procedure 60(b)² — a characterization that the petitioner enthusiastically embraced. Turning to the question of whether a Rule 60(b) motion seeking vacation of a judgment denying habeas relief should be treated as a second or successive habeas petition for AEDPA purposes, the district court answered that question affirmatively. Id. at 133-34. On that basis, the court ruled that it was without jurisdiction to hear the motion. Id. at 134-35 (citing 28 U.S.C. § 2244(b)(3)). In a subsequent order, the court, recognizing that the pertinent authorities were in some disarray, granted a certificate of appealability (COA), see 28 U.S.C. § 2253(c), thus allowing this appeal to proceed.

II. ANALYSIS

The COA poses a single question: does a motion for relief presented pursuant to Rule 60(b) constitute a second or subsequent petition under the AEDPA? Despite its narrowness, this question has significant implications for habeas procedure — and the courts of appeals that heretofore have grappled with it have reached divergent conclusions.

We begin by addressing the certified question. After answering it, we proceed to apply the answer to the case at bar.

A. Determining the Rule of Law.

As said, the decisions elsewhere have yielded three lines of cases. We turn first to the polar extremes.

The Second Circuit has ruled categorically that "a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b)." Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir.2001). The court reasoned that a Rule 60(b) motion does not seek the relief requested by a habeas petition, but, rather, "seeks only to vacate the federal court judgment dismissing the habeas petition." Id. That is "merely a step along the way" to habeas relief. Id. at 199. Consequently, affording Rule 60(b) its customary scope does not offend the AEDPA. Id.

At the other end of the spectrum, several courts have concluded that a Rule 60(b) motion in a habeas case must always be treated as a second or successive habeas petition under the AEDPA. See, e.g., Mobley v. Head, 306 F.3d 1096, 1096 (11th Cir.2002); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.1998) (per curiam); McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.1996). The Eleventh Circuit is the leading proponent of this proposition. In that court's view, according Rule 60(b) its customary scope in habeas cases would allow prisoners to cloak collateral attacks in the raiment of motions for relief from judgment under Rule 60(b) and thereby evade the limitations that Congress so painstakingly crafted in the AEDPA. See Mobley, 306 F.3d at 1096; Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.1996) (per curiam). Based on this rationale, the court concluded that allowing habeas petitioners access to Rule 60(b) would contravene the very congressional intent that motivated passage of the AEDPA. See Felker, 101 F.3d at 661 ("Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions. That was true before the [AEDPA] was enacted, and it...