U.S. v. Rich

• Decision Date: 13 May 1998
• Docket Number: No. 97-30464,97-30464
• Citation: 141 F.3d 550
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert RICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 550

141 F.3d 550

UNITED STATES of America, Plaintiff-Appellee, v. Robert RICH, Defendant-Appellant.

No. 97-30464.

United States Court of Appeals, Fifth Circuit.

May 13, 1998.

Steven Jay Irwin, New Orleans, LA, for Plaintiff-Appellee.

Robert Rich, Springfield, MO, pro se.

On Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Robert Rich has appealed the district court's order denying his motion under FED. R. CIV. PRO. 60(b) for reconsideration of the district court's denial of his prior motion under 28 U.S.C. § 2255. Rich is serving a 480 month sentence under his 1990 conviction for conducting a continuing criminal enterprise and for other drug related offenses. This Court affirmed Rich's convictions on direct appeal. United States v. Hooper, 949 F.2d 1158 (5th Cir.1991).

Rich filed a motion under 28 U.S.C. § 2255 on June 8, 1993, contending, among other things, that the government withheld the exculpatory statements of a co-conspirator which tended to refute the testimony of the government's key witness, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied Rich's § 2255 motion on February 2, 1994. United States v. Rich, No. 89-0087 (E.D.La. Feb. 2, 1994). On June 7, 1995, this Court affirmed the district court's denial of Rich's § 2255 motion, holding that the exculpatory information was not Brady material because Rich had already been privy to the information. United States v. Rich, 58 F.3d 637 (5th Cir.1995) (affirmed without published opinion, 58 F.3d 637 (5th Cir.1995) (Table)).

On June 10, 1996, Rich filed the instant Rule 60(b) motion for reconsideration of the district court's order denying his § 2255 motion. Rich's Rule 60(b) motion argued the same violation of Brady as his § 2255 motion, but added the argument that Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which the Supreme Court decided on April 19, 1995, changed the law with respect to the government's obligations to disclose exculpatory evidence. Rich argued that, in light of Kyles, the cumulative effect of the information withheld by the Government satisfied Brady's materiality requirement. ¹

In a report and recommendation dated February 10, 1997, the magistrate judge construed Rich's Rule 60(b) motion as a successive § 2255 motion and recommended dismissal because Rich had failed to secure leave of this Court to file a successive § 2255 motion, as required by statute. On February 28, 1997, the district court adopted the magistrate's report and recommendation, and entered judgment denying the motion without prejudice. On appeal, Rich argues that the district court erred by construing his motion as a successive § 2255 motion.

Discussion

Rule 60(b)(6) of the Federal Rules of Civil Procedure permits the court to grant relief from a final judgment for "any ... reason justifying relief from the operation of the judgment [other than the first five reasons listed in the rule]." FED. R. CIV. P. 60(b)(6). ² There has been a recent trend, however, to treat motions by federal prisoners to set aside their convictions on constitutional grounds as § 2255 motions, regardless of the label affixed to the motion. According to this trend, even though Rich's Rule 60(b) motion is styled merely as an attack on the judgment denying Rich's § 2255 motion, we should treat the Rule 60(b) motion as a successive § 2255 motion because the motion actually attacks the validity of Rich's conviction. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a successive § 2255 motion requires certification by the court of appeals prior to filing. 28 U.S.C. §§ 2244, 2255. As such, if the district court properly construed Rich's motion as a successive § 2255 motion, it correctly dismissed the motion for failure to satisfy the AEDPA requirements.

We agree that courts may treat motions that federal prisoners purportedly bring under Rule 60(b), but which essentially seek to set aside their convictions on constitutional grounds, as § 2255 motions. There is a trend among circuit courts to look beyond the formal title affixed to a motion if the motion is the functional equivalent of a motion under § 2255. As the Eighth Circuit has noted, "[t]he motion to remand is the functional equivalent of a second or successive petition for habeas corpus. If a second petition making the new allegations asserted in the motion would be dismissed as an abuse of the writ, then the motion to remand should be denied." Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989); see Blair v. Armontrout 976 F.2d 1130, 1134 (8th Cir.1992) ("The district court did not err in treating the Rule 60(b) motion as the equivalent of a second petition for writ of habeas corpus."), cert. denied, 508 U.S. 916, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993); see also Guinan v. Delo, 5 F.3d 313, 316 (8th Cir.1993) (citing Blair); Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992) (same), cert. denied, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993). Other circuits have also joined in this trend. See, e.g., Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.1998) (treating Rule 60(b) motion as second habeas petition); Burris v. Parke, 130 F.3d 782, 783 (7th Cir.1997) ("Appellate courts agree that a post-judgment motion under FED. R. CIV. P. 60(b) in the district court, or the equivalent motion in the court of appeals--which is to say, a motion to recall the mandate--is a 'second or successive' application for purposes of § 2244(b).... Otherwise the statute would be ineffectual."); McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.1996) ("We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition ...."), cert. denied, --- U.S. ----, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997); Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.) (stating that "the established law of this circuit, like the decisions ... from other circuits, forecloses [the] position that Rule 60(b) motions are not constrained by successive petition rules."); cert. denied, --- U.S. ----, 117 S.Ct. 451, 136 L.Ed.2d 346 (1996); Hunt v. Nuth, 57 F.3d 1327, 1339 (4th Cir.1995) (holding that district courts may properly treat Rule 60(b) motions as successive habeas petitions), cert. denied, 516 U.S. 1054, 116 S.Ct. 724, 133 L.Ed.2d 676 (1996); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993) ("We ... join the Fourth, Eighth and Eleventh Circuits in holding that because a Rule 60(b) motion following the entry of final judgment in a habeas case raises policy concerns similar to those implicated by a second petition, it is subject to the same cause and prejudice standard."); Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.) (evaluating Rule 60(b) motion as habeas petition and dismissing on nonexhaustion grounds), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990).

Fifth Circuit precedent also supports treatment of a purported Rule 60(b) motion seeking to set aside a conviction as a successive § 2255 motion. In Williams v. Whitley we noted that "[w]hile the law of the circuit is somewhat unsettled ... we are inclined to agree with the State that Fulford's motion for reconsideration is best viewed as yet another habeas petition...." 994 F.2d 226, 230 n. 2 (5th Cir.), cert. denied, 510 U.S. 1014, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993). Since Williams, in Behringer v. Johnson and Briddle v. Scott, the petitioners sought to raise new claims in a Rule 60(b) motion, resulting in our treatment of the motions as successive habeas petitions under § 2255. See Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir.), cert. denied, 516 U.S. 1182, 116 S.Ct. 1284, 134 L.Ed.2d 229 (1996); Briddle v. Scott, 63 F.3d 364, 376 & n. 23 (5th Cir.), cert. denied, 516 U.S. 1033, 116 S.Ct. 687, 133 L.Ed.2d 531 (1995).

Furthermore, the Williams Court's reference to the unsettled state of the law in this circuit does not preclude treatment of a Rule 60(b) motion seeking to set aside a conviction as a successive § 2255 motion. Williams points to three cases that approached this situation in two different ways. In United States v. Reyes, the Court treated a Rule 60(b) motion to vacate a conviction as a petition for habeas corpus. 945 F.2d 862, 864 (5th Cir.1991). The Court noted that motions praying for the vacation of a criminal conviction rather than a civil judgment "are not ordinary Rule 60(b) motions." Id. The Court then decided to treat the motion as "subject for these purposes to the procedural rules applicable to habeas corpus relief." Id.

In May v. Collins and Streetman v. Lynaugh, the Court did not reach the issue of treatment of a Rule 60(b) motion as a successive § 2255 motion, instead finding that the district court correctly dismissed the motion under the Rule 60(b) abuse of discretion standard. See May v. Collins, 961 F.2d 74, 76 (5th Cir.) ("We find that the district court acted well within its discretion to deny the motion."), cert. denied, 504 U.S. 901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992); Streetman v. Lynaugh, 835 F.2d 1521 (5th Cir.1988) ("[W]e conclude that Streetman has not made a substantial showing that the federal district court abused its discretion in denying his Rule 60(b) motion...."). May and Streetman simply do not discuss the propriety of treating a Rule 60(b) motion as a successive § 2255 motion under appropriate circumstances.

Accordingly, we reaffirm this circuit's agreement with the majority of other circuits that courts may treat a Rule 60(b) motion in habeas corpus proceedings as a successive petition under § 2255. As the Eleventh Circuit recently noted, "Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions. That was true before [AEDPA] was enacted, and it is equally true, if not more so,...