Opinion
CASE NO. 2:03-cv-1165.
March 13, 2007
OPINION AND ORDER
On October 18, 2004, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed a timely appeal, which is currently pending before the United States Court of Appeals for the Sixth Circuit. See Doc. Nos. 24-26. This matter is before the Court on petitioner's March 2, 2007, motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), which provides:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Due to petitioner's pending appeal, this Court is without jurisdiction to consider petitioner's Rule 60(b) motion. Post v. Bradshaw, 422 F.3d 419, 421 (6th Cir. 2005), citing Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993).
[W]here a party wishes to file a Rule 60(b) motion but already has an appeal pending . . . "the proper procedure is for him to file his motion in the District Court. If that court indicates that it will grant the motion, the appellant should then make a motion . . . for a remand of the case in order that the District Court may grant the motion. . . ." Id. at 346 (citation omitted).Id., citing First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976). However, if this case were remanded to this Court for consideration of petitioner's Rule 60(b) motion, the record does not indicate that Rule 60(b) relief is warranted.
In his Rule 60(b) motion, petitioner again argues that the Court improperly dismissed his claims on the merits. He contends that the state appellate court's findings of fact were unreasonable, and that he should have been granted an evidentiary hearing. Even assuming that petitioner's Rule 60(b) motion is timely, the motion cannot be considered under Rule 60(b). In Gonzalez v. Crosby, 545 U.S. 524 (2005), the United States Supreme Court held that a Rule 60(b) motion that raises a substantive claim for relief, rather than merely attacks a "defect in the integrity of the federal habeas proceeding," id., at 2648, must be construed as a successive petition:
In some instances, a Rule 60(b) motion will contain one or more "claims." For example, it might straightforwardly assert that owing to "excusable neglect," Fed. Rule Civ. Proc. 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim. Cf. Harris v. United States, 367 F.3d 74, 80-81 (C.A.2 2004) (petitioner's Rule 60(b) motion sought relief from judgment because habeas counsel had failed to raise a Sixth Amendment claim). Similarly, a motion might seek leave to present "newly discovered evidence," Fed. Rule Civ. Proc. 60(b)(2), in support of a claim previously denied. E.g., Rodwell v. Pepe, 324 F.3d 66, 69 (C.A.1 2003). Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim. E.g., Dunlap v. Litscher, 301 F.3d 873, 876 (C.A.7 2002). Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly. E.g., Rodwell, supra, at 71-72; Dunlap, supra, at 876.
We think those holdings are correct. . . . Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. § 2244(b)(2). The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: even assuming that reliance on a new factual predicate causes that motion to escape § 2244(b)(1)'s prohibition of claims "presented in a prior application," § 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent § 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. § 2244(b)(3).
In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course qualify. A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits, FN4 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.FN5
FN4. The term "on the merits" has multiple usages. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.
FN5. Fraud on the federal habeas court is one example of such a defect. See generally Rodriguez v. Mitchell, 252 F.3d 191, 199 (C.A.2 2001) (a witness's allegedly fraudulent basis for refusing to appear at a federal habeas hearing "relate[d] to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial"). We note that an attack based on the movant's own conduct, or his habeas counsel's omissions, see, e.g., supra, at 2647, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.Id., at 2647-2648.
Because petitioner's Rule 60(b) motion attacks "the substance of [the Court's] resolution of [his] claim on the merits," and does not address a "defect in the integrity of the federal habeas proceedings," see Gonzalez v. Crosby, supra, 125 S.Ct. at 2648, petitioner's motion would be construed as a successive petition under the AEDPA, and transferred to the United States Court of Appeals for the Sixth Circuit under 28 U.S.C. § 2244(b)(3)(A), even if this case were remanded for consideration of petitioner's Rule 60(b) motion.
For all of the foregoing reasons, the record fails to reflect that petitioner would be entitled to relief, if this case were remanded for consideration of petitioner's Rule 60(b) motion. Additionally, and because the Court is without jurisdiction to consider petitioner's Rule 60(b) motion, petitioner's request for relief from judgment, Doc. No. 38, is DENIED.
It is so ORDERED.