Mitchell v. Rees

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0171p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOE CLARK MITCHELL,
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Petitioner,
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No. 09-5570
v.
,
>
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Respondent. -
JOHN REES, Warden,
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Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 93-00073—William J. Haynes, Jr., District Judge.
Argued: November 30, 2010
Decided and Filed: June 30, 2011
Before: BATCHELDER, Chief Judge; BOGGS and GIBBONS, Circuit Judges.

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COUNSEL
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.
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OPINION
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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.

1
No. 09-5570 Mitchell v. Rees Page 2

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 F. App’x
752 (6th Cir. 2002); Mitchell v. Rees (Mitchell III), 261 F. App’x 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 III] 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:

1
Mitchell argues that “[b]ecause the [d]istrict [c]ourt misinterpreted this [c]ourt’s mandate in
Mitchell III, . . . [t]his [c]ourt should reverse and remand for the [d]istrict [c]ourt to consider Mitchell’s
request in the first instance.” Petitioner’s Br. at 11-12. The State replies that “the district court has plainly
stated its inclination to grant relief” so “a remand would disserve the interests of both finality and judicial
economy.” Respondent’s Br. at 13-14. Based on the record, the arguments presented on appeal, and the
analysis that follows, a remand is unnecessary.
2
Rule 60 was “restyled” in 2007 such that the former Part (b) has been separated into Parts (b),
(c), (d), and (e). The language was not altered; the exact language of the current Part (d) was formerly
contained in Part (b).
No. 09-5570 Mitchell v. Rees Page 3

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 (1998); accord
No. 09-5570 Mitchell v. Rees Page 4

Pickford v. Talbott, 225 U.S. 651, 657 (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. Gottleib v. S.E.C., 310 F. App’x 424, 425 (2d Cir. 2009); Wise
v. Kastner, 340 F. App’x 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 (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 (1992).

Mitchell contends that this court’s erroneous decision3 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.

3
It bears mention that, in light of Cullen v. Pinholster, 563 U.S. --, 131 S. Ct. 1388 (2011), that
decision might not have been erroneous after all. Admittedly, Mitchell I was pre-AEDPA whereas
Cullen’s holding is based on AEDPA, § 2254(d)(1), but one might reasonably extend the Cullen analysis
to the Mitchell I context.
No. 09-5570 Mitchell v. Rees Page 5

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 F. App’x 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 (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, 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.
No. 09-5570 Mitchell v. Rees Page 6

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 F. App’x 491, 498 (6th Cir. 2002) (citing Beggerly, 524 U.S. at
46).

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 complained of was
rendered, plaintiff herein is precluded from proceeding under that part of
the rule. Plaintiff is relegated, therefore, to an independent action
seeking relief from the judgment, and he cannot prevail in such action
except on the principles which the courts have historically applied to the
independent action in equity to reform a judgment. Notes of Advisory
Committee on Amendment to Rules, 1946.

W. Va. Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 705-06 (5th Cir.
1954) (internal citation omitted). And in a later case, a Fifth Circuit panel directly
quoted the Advisory Committee Note that the prior panel had cited in the above passage:

If the right to make a motion is lost by the expiration of the time limits
fixed in these rules, the only procedural remedy is by a new or
independent action to set aside a judgment upon those principles which
have heretofore been applied in such an action.

Bankers Mortg., 423 F.2d at 81 n.13 (quoting Advisory Committee Note of 1946 to
Subdivision (b) of Rule 60, as reprinted in 6A Moore’s Federal Practice § 60.01(8)); see
No. 09-5570 Mitchell v. Rees Page 7

also Gonzalez v. Sec’y for the Dep’t of Corr., 366 F.3d 1253, 1291 (11th Cir. 2004) (en
banc) (Tjoflat, J., specially concurring in part and dissenting in part) (quoting with
approval Bankers Mortg.).

We hold that Mitchell can circumvent 60(b)(1)’s one-year time limit and pursue
an independent action, so long as he can satisfy the other requirements for an
independent action.

C.

Finally, the State argues that this court’s error in Mitchell I — i.e., disallowing
the district court’s evidentiary hearing on the Batson claim — was no more than an
“ordinary legal error,” fully anticipated by Rule 60(b)(1), and, therefore, not a “grave
miscarriage of justice” that would warrant an independent action under Rule 60(d).
Respondent’s Br. at 12. We agree.

In Beggerly, the Supreme Court cited Marshall v. Holmes, 141 U.S. 589, 596
(1891) — a case in which a forged letter was used to obtain a default judgment — as an
example of “a grave miscarriage of justice” sufficient to justify the independent action
because the defendant was completely prevented, by fraud, from presenting any defense
to the complaint. Beggerly, 524 U.S. at 47. In contrast, the Court found the
circumstances of Beggerly itself, a quiet-title action, insufficient to establish “a grave
miscarriage of justice” because the most that could be charged against the plaintiff
(Government) was a failure to make a “full disclosure” of relevant information. Id.; see
also Computer Leasco, Inc. v. NTP, Inc., 194 F. App’x 328, 335 (6th Cir. 2006)
(collecting cases in which the circumstances “do not rise to the grave miscarriage of
justice standard”).

In the present case, Mitchell sought (and obtained) an evidentiary hearing on his
Batson claim. On appeal, the State argued that the district court erred by ordering the
hearing because Mitchell had not established any basis for disregarding the state court’s
findings. Mitchell I, 114 F.3d at 575. Mitchell countered that the State had waived this
argument by failing to raise it to either the magistrate judge or the district court. Id.
No. 09-5570 Mitchell v. Rees Page 8

This is not a case like Marshall in which the defendant was prevented (by fraud or
otherwise) from defending his position. This is not even a case like Beggerly in which
the defendant was not given full disclosure of the relevant information. Mitchell was
fully apprised of the State’s claim and argued capably in opposition. Despite Mitchell’s
argument, this court accepted the State’s position, disallowed the evidence, and denied
Mitchell’s Batson claim on the merits. As noted, that decision was later deemed
incorrect.

From the time-line below, it is evident that Mitchell had several opportunities
prior to this independent action in which he could have attempted to remedy the error
in Mitchell I.

May 29, 1997 Mitchell I finalized (rehearing en banc denied,
cert. denied).
September 13, 2000 Abdur’Rahman v. Bell, 226 F.3d 696, 705-06
(2000), refused to follow Mitchell I, asserting that
it was incorrect.
January 28, 2002 Mitchell II decided, denying Mitchell’s claim of
ineffective assistance of counsel (no discussion of
Abdur’Rahman).
March 14, 2002 The district court issued Mitchell’s final judgment
based on the directive in Mitchell II to deny
habeas relief.
February 3, 2005 Mitchell filed an application for a successive or
second habeas petition (denied). No discussion of
Abdur’Rahman.
July 28, 2005 Harries v. Bell, 417 F.3d 631, 635 (2005), re-
asserted that Mitchell I was incorrect, citing
Abdur’Rahman.
December 9, 2005 Mitchell filed a Rule 60(b)(6) motion for relief
from judgment on the basis that Abdur’Rahman
and Harries had overruled Mitchell I expressly
and Mitchell II implicitly.
January 9, 2008 Mitchell III held that Mitchell’s Rule 60(b)(6)
motion was actually a 60(b)(1) motion and,
therefore, time barred.
No. 09-5570 Mitchell v. Rees Page 9

March 10, 2009 Mitchell moved for relief from judgment as
provide for under Rule 60(d)(1), i.e., as an
independent action in equity.

Following Mitchell I, Mitchell moved for rehearing, rehearing en banc, certiorari,
and rehearing of his petition for certiorari. He was unable to persuade this court or the
Supreme Court that Mitchell I was incorrect. After issuance of Abdur’Rahman, Mitchell
could have moved the district court for relief from the Mitchell I judgment under Rule
60(b)(1) (mistake). He did not. He could have raised Abdur’Rahman’s criticism of
Mitchell I to this court in Mitchell II; he did not, and this court decided Mitchell II on the
basis of Mitchell I. Consequently, Mitchell could have raised Abdur’Rahman’s criticism
of Mitchell I in seeking rehearing or rehearing en banc in Mitchell II, or asserted it in his
petition for certiorari. He did not. Mitchell could have raised this mistake of law to the
district court in a Rule 60(b)(1) motion upon remand after our mandate in Mitchell II (as
that decision was based on Mitchell I). Mitchell did none of these. Mitchell raised this
issue (that Mitchell I was legally incorrect) for the first time in his Rule 60(b)(6) motion
in December 2005; over three years after the Mitchell II mandate and over five years
after issuance of Abdur’Rahman.

Mitchell cannot establish that this claim of error and the ensuing course of events
subjected him to a “grave miscarriage of justice,” see Beggerly, 524 U.S. at 47, that
enforcement of the judgment would be “manifestly unconscionable,” see Pickford, 225
U.S. at 657, or even that this is a case of “unusual and exceptional circumstances,” see
Barrett, 840 F.2d. at 1263. To be sure, Mitchell was the recipient of an adverse legal
decision by this court, a decision that was later determined to be incorrect. But, as is the
case with every party appearing before this court, Mitchell had avenues available by
which he could have further challenged and sought to remedy that incorrect decision.
The fact that Mitchell suffered an incorrect, adverse legal decision that was not remedied
is regrettable, but it is not the equivalent of “actual innocence,” which is a required
element for an independent action for relief from a habeas judgment. See Calderon, 523
U.S. at 557-58. Nor, in the context of this case — where Mitchell failed to raise his
claim at earlier available opportunities and where current Supreme Court case law now
No. 09-5570 Mitchell v. Rees Page 10

mandates the same result as the incorrect decision — can Mitchell meet any other
possible standard for relief embodied in the “stringent” and “demanding” standard of a
“grave miscarriage of justice” in any context. See Gottleib, 310 F. App’x at 425; Wise,
340 F. App’x at 959. Therefore, Mitchell cannot satisfy the threshold requirement for
an independent action in equity.

III.

Because the petitioner cannot demonstrate “a grave miscarriage of justice,” we
find that relief pursuant to this independent action is unavailable. We AFFIRM the
judgment of the district court.