Phelps v. Alameida

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEVIN PHELPS,  No. 07-15167
Petitioner-Appellant,
v.  D.C. No.
CV-98-02002-MMC
EDWARD ALAMEIDA,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding

Argued and Submitted
January 13, 2009—San Francisco, California

Filed June 25, 2009

Before: Myron H. Bright,* Stephen Reinhardt and
A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt

*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

7895
 PHELPS v. ALAMEIDA 7899

COUNSEL

Albert Joel Kutchins, Berkeley, California, for the petition-
er-appellant.

Juliet B. Haley, Deputy Attorney General, San Francisco, Cal-
ifornia, for the respondent-appellee.

OPINION

REINHARDT, Circuit Judge:

For over eleven years, Kevin Phelps has sought to present
his petition for habeas corpus to a federal judge. For over
eleven years, he has been unsuccessful. Given the trend these
last decades on the part of Congress and the Supreme Court
“increasingly to bar the federal courthouse door to litigants
with substantial federal claims,”1 habeas petitioners —
including petitioners who may have suffered severe depriva-
tions of their constitutional rights — now face myriad proce-
dural hurdles specifically designed to restrict their access to
the once-Great Writ. In this modern era, which prizes “effi-
ciency,” “parity,” and “judicial economy” often at the expense
of justice and liberty, it is not at all unusual for an individual
who fails to satisfy one of those many procedural hurdles to
toil on for years in hopeless pursuit of an opportunity to be
heard on the merits of his claim — an opportunity that he will

1
Juidice v. Vail, 430 U.S. 327, 346 (1977) (Brennan, J., dissenting,
joined by Marshall, J.)
7900 PHELPS v. ALAMEIDA
never receive. It is, however, very unusual for an individual
who meticulously has overcome each of those procedural hur-
dles to sit in prison for more than a decade nonetheless, with-
out ever being heard on the substance of his petition. That,
however, is exactly what has happened to Kevin Phelps.

At each stage in Phelps’ struggle over the past eleven years
to have his federal habeas petition evaluated on the merits, he
has put forward sound legal arguments, at times doing so pro
se, for why his petition was timely filed. In fact, his argu-
ments have been much more than sound — they have been
undeniably correct under currently governing law. Phelps’
one and only fault throughout this protracted process, if it can
be described as a “fault” at all, is that his arguments have
been overly prescient: On multiple occasions, the legal argu-
ments that Phelps put forward for why his petition was prop-
erly filed were rejected by the judges before whom he
appeared, only to be fully embraced within a matter of months
by judges authoring a more authoritative, controlling opinion
in a different case. The positions Phelps advanced were not,
at the time they were made, foreclosed by then-governing pre-
cedents; to the contrary, when Phelps presented his arguments
the law was simply unsettled with respect to the procedural
hurdles standing in his way. However, the law did not remain
unsettled for long: on multiple occasions, shortly after Phelps
advanced the precise interpretation of the law that would soon
be adopted, his position was vindicated in a case other than
his own. On each occasion, the argument Phelps advanced
was adopted as the governing legal rule mere months after a
directly contrary, but nonprecedential, ruling was entered
against him.

In short, entirely as a result of misfortune, Phelps sits today
in prison without a single federal judge ever having evaluated
the substance of his petition for habeas corpus, a petition that
indisputably satisfies the strict procedural requirements set
forth in the Anti-Terrorism and Effective Death Penalty Act.
Even under the severely diminished habeas corpus protection
 PHELPS v. ALAMEIDA 7901
available under that Act, a properly filed habeas petition
should not be dismissed on the basis of sheer happenstance or
of random bad luck. “The writ of habeas corpus plays a vital
role in protecting constitutional rights,” AEDPA notwithstand-
ing.2 In enacting the habeas statute, many years prior to the
adoption of AEDPA, “Congress sought to ‘interpose the fed-
eral courts between the States and the people, as guardians of
the people’s federal rights — to protect the people from
unconstitutional action.’ ”3 As the Supreme Court warned,
“[d]ismissal of a first federal habeas petition is a particularly
serious matter, for that dismissal denies the petitioner the pro-
tections of the Great Writ entirely, risking injury to an impor-
tant interest in human liberty.”4 That was true in 1996, when
AEDPA was enacted, and it is true today. In fact, it is fre-
quently also true with respect to the dismissal of a second or
subsequent habeas petition when reaching the merits would
allow the courts to remedy a serious injustice.

When a dismissal of a habeas petition rests upon an answer
to an open legal question that is promptly rejected and then
replaced in a more authoritative opinion by the very answer
proposed by a diligent but unsuccessful petitioner, the peti-
tioner is entitled to seek reconsideration of the dismissal
entered against him. In weighing such a request for reconsid-
eration, a district court must evaluate the specific circum-
stances of the case at hand and should be guided by a number
of factors discussed later in this opinion; the court should not
treat the motion for reconsideration as per se non-cognizable.
Ultimately, in evaluating the motion, the district court’s over-
riding concern should be “the incessant command of the
court’s conscience that justice be done in light of all the facts.”5
Here, because the district court incorrectly applied a per se
2
Slack v. McDaniel, 529 U.S. 473, 483 (2000).
3
Reed v. Ross, 468 U.S. 1, 10 (1984) (quoting Mitchum v. Foster, 407
U.S. 225, 242 (1972)).
4
Lonchar v. Thomas, 517 U.S. 314, 324 (1996) (emphasis added).
5
Stokes v. Williams, 475 F.3d 732, 736 (6th Cir. 2007).
7902 PHELPS v. ALAMEIDA
rule to reject Phelps’ motion for reconsideration rather than
evaluating the specific circumstances of Phelps’ case, and
because we conclude that the extraordinary circumstances of
this case merit relief under Fed. R. Civ. P. 60(b)(6), we
reverse the denial of Phelps’ motion for reconsideration and
remand for an evaluation of the merits of his habeas petition.

I.

Phelps’ prolonged journey through the state and federal
post-conviction processes has involved numerous twists and
turns. Because this case turns largely on the details of his
efforts over the past decade to have the substance of his fed-
eral petition for habeas corpus reviewed by a federal judge,
we recount in full the procedural history that has brought him,
and us, to this point.

Phelps was prosecuted for the same murder three separate
times in the California state courts. His first two trials resulted
in hung juries. In the third trial, which concluded on Novem-
ber 17, 1994, Phelps was convicted. He was sentenced to a
term of thirty-years to life in prison.

Following his conviction, Phelps simultaneously filed an
appeal and a petition for a writ of habeas corpus in the Cali-
fornia Court of Appeal.6 The court denied his appeal on Octo-
ber 28, 1996 and denied his habeas petition on February 6,
6
In California, the Court of Appeal and the Supreme Court both have
original jurisdiction over habeas petitions. Unlike in other states, both
appellate courts regularly exercise that original jurisdiction in the ordinary
course of reviewing claims for post-conviction relief. The California
Supreme Court also has appellate jurisdiction over habeas petitions denied
by the Court of Appeal, which it exercises in much the same fashion that
it exercises its original habeas jurisdiction. See generally Carey v. Saffold,
536 U.S. 214 (2002) (describing California state habeas system and com-
paring it to other states). We discuss the relationship between the Califor-
nia Supreme Court’s original and appellate jurisdiction over habeas
petitions in greater detail infra Part II.A.
 PHELPS v. ALAMEIDA 7903
1997. Phelps then petitioned the California Supreme Court for
review of both denials. The Supreme Court denied the petition
for review of his direct appeal on January 15, 1997, stating
“Appellant’s petition for review DENIED.” People v. Phelps,
No. S049538, 1997 Cal. LEXIS 63 (Cal. Jan. 15, 1997). With
respect to his habeas petition, the court denied the petition for
review on April 30, 1997, stating “Petition for review denied
on the merits.” In re Phelps, No. S059148, 1997 Cal. LEXIS
2441 (Cal. April 30, 1997).

On May 15, 1998, one year and fifteen days after the peti-
tion for review of the habeas petition was denied on the mer-
its, Phelps filed a petition for a federal writ of habeas corpus
in the Northern District of California. In that petition, he
asserted that his constitutional rights were violated because
exculpatory evidence discovered after his trial entitled him to
a new trial and because his trial lawyer had provided ineffec-
tive assistance of counsel. The State responded by filing a
motion to dismiss the petition on the ground that it was
untimely under AEDPA, 28 U.S.C. § 2244(d), which imposes
a one-year statute of limitations on federal habeas petitions.
That one-year period begins to run when the petitioner com-
pletes the state appellate process, but excludes any time dur-
ing which he has a pending petition for collateral review
before the state courts. Because Phelps’ state habeas petition
was still pending before the California Supreme Court at the
time his direct appeal became final, the AEDPA statute of
limitations did not start to run until that court’s review of his
state habeas petition became final. See 28 U.S.C.
§ 2244(d)(2). The date on which that occurred was a central
dispute before the district court.

As noted above, on April 30, 1997, the California Supreme
Court denied review of Phelps’ appeal from the Court of
Appeal’s denial of his state habeas petition. Under the Cali-
fornia Rules of Court then in effect, “A decision of the
Supreme Court becomes final thirty days after filing . . . . An
order of the Supreme Court denying a petition for review of
7904 PHELPS v. ALAMEIDA
a decision of a Court of Appeal becomes final when it is
filed.” Cal. R. Ct. 24(a) (repealed Jan. 1, 2002) (emphases
added).7 Thus, if the denial of Phelps’ petition for review was
a “decision,” it did not become final until May 30, 1997,
thirty days after its filing date, and his federal habeas petition
filed on May 15, 1998 was filed with fifteen days to spare.
However, if the Supreme Court’s denial was an “order . . .
denying a petition for review,” then it became final when filed
on April 30, 1997, and Phelps’ federal habeas petition was
fifteen days late.

Phelps argued to the district court that the California
Supreme Court’s summary denial of his petition for review
was a decision because, in the Supreme Court’s own words,
it was a denial “on the merits.” By way of contrast, he pointed
to the denial of the petition for review of his direct appeal,
which simply stated “DENIED.” The State countered that,
under California habeas law, only those dispositions issued by
the California Supreme Court following an order to show
cause are deemed “decisions.”8 The district court acknowl-
edged that “the California courts have not clearly articulated
the difference between a decision and an order in the context
of Rule 24(a),” but it nonetheless agreed with the State that,
because the Supreme Court had not issued an order to show
7
In 2002, Rule 24 was amended so as to make “[t]he denial of a petition
for review of a Court of Appeal decision” “final on filing,” regardless of
whether the denial was decided on the merits. See Cal. R. Ct. 29.4 (recodi-
fied at Cal. R. Ct. 8.532 in 2007). That amendment has no bearing on this
appeal because the finality of the California Supreme Court’s denial of
Phelps’ request for review is governed by the rules in effect at the time
of that court’s ruling.
8
Ordinarily, if the California Supreme Court believes that a petitioner
has established “a prima facie case for relief on habeas corpus, then an
order to show cause” why the petition should not be granted will be issued
to the State Attorney General. In re Lawler, 588 P.2d 1257, 1259 (Cal.
1979). However, if the Supreme Court believes the petition does not state
a prima facie case, then it will issue a “summary denial,” as it did in this
case, which is a denial on the merits of the claim. In re Clark, 855 P.2d
729, 741 n.9 (Cal. 1993).
 PHELPS v. ALAMEIDA 7905
cause in Phelps’ case, the denial of review was an order, not
a decision. Phelps v. Alameda, No. 98-2002-MMC, slip op. at
3 (N.D. Cal. Dec. 28, 1998) (order granting motion to dis-
miss). Accordingly, the district court held that Phelps’ federal
habeas petition was barred by the statute of limitations.9 Id.

Phelps appealed the district court’s dismissal to this court
on January 26, 1999, pressing the argument that the California
Supreme Court’s denial of his petition for review was a deci-
sion under the California Rules of Court and therefore did not
become final until thirty days after filing. In an unpublished
memorandum disposition, a panel of this court affirmed the
district court, holding that the California Supreme Court’s
“denial was an ‘order denying a petition for review’ ” because
it had not been preceded by an order to show cause. Phelps
v. Alameda, No. 99-15493, 2000 U.S. App. LEXIS 5954, at
*2 (9th Cir. Mar. 29, 2000). After the panel filed its memo-
randum disposition, Phelps petitioned for rehearing and
rehearing en banc and also petitioned for a writ of certiorari
from the United States Supreme court, but he was unsuccess-
ful with respect to all. See Phelps v. Alameda, No. 99-15493
(9th Cir. May 8, 2000) (order denying petition for rehearing
and petition for rehearing en banc), cert. denied, 531 U.S.
1073 (2001).

At the time Phelps’ appeal was before this court, the ques-
tion of how to construe summary denials by the California
Supreme Court for purposes of AEDPA’s statute of limita-
tions was an open one. In fact, when Phelps’ appeal was
under submission before the panel of this court reviewing his
case, a separate panel was addressing precisely the same ques-
tion in a different appeal. That panel reached the direct oppo-
site result. In an unpublished memorandum disposition, that
panel held that “[s]ummary denials are ‘decisions’ under Cali-
fornia law,” and therefore do not become final until thirty
9
Phelps also raised an equitable tolling argument that the district court
rejected in a decision that we affirmed.
7906 PHELPS v. ALAMEIDA
days after filing. Washington v. Lindsey, No. 99-55149, 2000
U.S. App. LEXIS 9015, at *4 (9th Cir. May 4, 2000). Three
months later, yet another panel of our court reached that same
conclusion, also in an unpublished memorandum disposition.
See Morgan v. Fairman, No. 99-55446, 2000 U.S. App.
LEXIS 20997 (9th Cir. Aug. 15, 2000). Had Phelps’ appeal
been assigned to either of these other panels, his argument
that his petition was timely filed would have prevailed and his
constitutional claims would have been considered on the mer-
its.

The contradiction between these various competing memo-
randum dispositions was definitively resolved fifteen months
after Phelps’ appeal became final. In Bunney v. Mitchell, 262
F.3d 973 (9th Cir. 2001) (per curiam), a panel of this circuit
issued a published, and therefore controlling, opinion that
resolved the dispute over whether summary denials by the
California Supreme Court are decisions or orders for purposes
of calculating the AEDPA statute of limitations. That panel
adopted the position Phelps had advocated all along, holding
that “[u]nder Rule 24 [of the California Rules of Court], a
denial of a habeas petition . . . is not final for 30 days” after
filing. Id. at 974. That decision and a series of Ninth Circuit
cases that followed quickly in its wake, including a case
decided en banc, made perfectly clear that the position Phelps
advocated before the district court and before this court was
legally correct. Had Bunney and its progeny resolved a few
months earlier the unsettled legal question upon which
Phelps’ appeal turned, his habeas petition would have been
remanded to the district court for a decision on the merits.

Shortly after Phelps’ position was vindicated in Bunney, he
filed a motion pursuant to Fed. R. Civ. P. 60(b) asking the dis-
trict court to reconsider its dismissal of his habeas petition on
the ground that, in light of the intervening change in the law,
it would be unjust not to review the merits of his constitu-
tional claims when he had correctly and consistently asserted
the timeliness of his petition at every stage of his case. How-
 PHELPS v. ALAMEIDA 7907
ever, the district court, over Phelps’ thoroughly briefed objec-
tion, denied his motion to reopen on the ground that it was a
“second or successive” habeas petition. Under 28 U.S.C.
§ 2244(b)(3)(A), “[b]efore a second or successive [habeas]
application . . . is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authoriz-
ing the district court to consider the application.” Because
Phelps had not petitioned this court for permission to file his
Rule 60(b) motion, and because the district court considered
that motion to be a successive habeas petition, the court ruled
that, “[a]t this juncture, . . . this Court lacks subject matter
jurisdiction to determine whether the change in the law would
entitle petitioner to relief.” Phelps v. Alameda, No. 98-2002-
MMC, slip op. at 2 (N.D. Cal. Mar. 26, 2002) (order denying
motion to reinstate). Accordingly, the court denied Phelps’
motion for reconsideration. With respect to the merits of the
motion, the court also stated that “a change in the applicable
law after a judgment has become final in all respects is not a
sufficient basis for vacating the judgment.” Id. (internal quo-
tation marks omitted) (quoting Tomlin v. McDaniel, 865 F.2d
209, 210 (9th Cir. 1989)).

Phelps asked the district court to issue a certificate of
appealability allowing him to appeal the rejection of his Rule
60(b) motion, but it declined to do so. Phelps then petitioned
this court for a certificate of appealability, which was granted
with respect to the following question: did the district court
err in construing Phelps’ Rule 60(b) motion as a successive
habeas petition? Phelps v. Alameda, No. 02-15821 (9th Cir.
Dec. 2, 2002) (order granting certificate of appealability). The
case was then assigned to a panel for consideration of that
question. The panel, in a published opinion, however, dis-
missed the certificate of appealability as improvidently
granted and thereupon dismissed the appeal. See Phelps v.
Alameda, 366 F.3d 722 (9th Cir. 2004). In reaching its con-
clusion, the panel construed the district court’s order denying
Phelps’ Rule 60(b) motion as containing two independent “al-
ternative holdings”: (1) a holding that the district court lacked
7908 PHELPS v. ALAMEIDA
jurisdiction to consider the motion, and (2) a holding that the
motion could not be granted on its merits. Id. at 725 & n.3.
Curiously, the panel arrived at its conclusion despite unequiv-
ocal Supreme Court and Ninth Circuit precedents rejecting the
doctrine of “hypothetical jurisdiction.” These precedents
clearly hold that a court has no power to render a “holding”
on the merits of a question that it lacks jurisdiction to consider.10
See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998); Rivera v. RRB, 262 F.3d 1005, 1008 (9th Cir.
2001). But cf. Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir.
2007). Notwithstanding these precedents, the panel held that
the district court’s denial of Phelps’ motion rested on two
independent grounds, one of which was lack of jurisdiction.
The panel then stated that the question of jurisdiction was the
subject of the certificate of appealability. It went on to hold
that even if it were to rule in Phelps’ favor on the certified
question of jurisdiction, the uncertified “alternative holding”
denying him relief on the merits would still stand. Accord-
ingly, the panel held that it could not grant Phelps any mean-
ingful relief however it resolved the jurisdictional question,
and that he therefore lacked standing. On this assumption, the
panel dismissed the appeal without ever deciding either the
certified or uncertified question. It opted not to exercise its
own authority to expand the certificate of appealability, a pro-
cedure that would have obviated the procedural difficulty that
10
It is difficult to reconcile the panel’s construction of the district
court’s order with the clear prohibition against hypothetical jurisdiction:
“Because the [district] court concluded it did not have jurisdiction . . . ,
[its] reaching an alternative holding would have been an exercise of hypo-
thetical jurisdiction in violation of Steel Company v. Citizens for a Better
Environment, 523 U.S. 83, 94, (1998).” United States v. Mitchell, 518 F.3d
740, 744 n.6 (10th Cir. 2008). But cf. Lesesne v. District of Columbia, 447
F.3d 828, 833 (D.C. Cir. 2006). The appropriateness of the panel’s analy-
sis, however, is not before us on this appeal, and accordingly we do not
revisit the panel’s conclusions; we note the apparent tension in its logic
only to further underscore the multitudinous, and at times unwarranted,
procedural obstacles Phelps has faced in his eleven-year-long attempt to
have his constitutional challenges evaluated on their merits.
 PHELPS v. ALAMEIDA 7909
the panel believed prevented it from resolving the question
before it. Phelps petitioned for rehearing and for rehearing en
banc, but both petitions were once again denied. See Phelps
v. Alameda, No. 02-15821 (9th Cir. June 2, 2004) (order
denying petitions for rehearing and rehearing en banc).

Eleven months after this second appeal became final, the
United States Supreme Court held that a “Rule 60(b) motion
[that] challenges only [a] District Court’s previous ruling on
the AEDPA statute of limitations . . . is not the equivalent of
a successive habeas petition.” Gonzalez v. Crosby, 545 U.S.
524, 535-36 (2005). The Court’s opinion directly refuted the
district court’s holding in Phelps’ case that it lacked jurisdic-
tion to entertain his Rule 60(b) motion. In fact, the Gonzalez
decision employs precisely the same language Phelps used
when urging the court not to apply the successive-petition rule
to his motion. In his brief to the district court, Phelps argued
that only “Rule 60(b) motions raising new factual issues and
new evidence and seeking to relitigate issues that had already
been decided on the merits” should be barred by the
successive-petition rule. This is precisely what the Supreme
Court held. See id. at 531-34 (holding Rule 60(b) motion is
not a successive habeas petition unless it “present[s] new
claims for relief from a state court’s judgment of conviction
. . . . [or seeks to] present[ ] new evidence in support of a
claim already litigated . . . . [or] seeks to revisit the federal
court’s denial on the merits of a claim for relief . . . .”). Thus,
for the second time, Phelps had presented exactly the correct
legal argument to the district court, but did so a few months
too soon.

Following this second affirmation of his legal position,
Phelps, now proceeding pro se, once again asked the district
court to reconsider its original dismissal of his habeas petition
as untimely, a dismissal that by this point was predicated on
two indisputably erroneous legal rulings. The district court,
however, once again refused to reconsider its dismissal. In
denying this second motion for reconsideration, the court sim-
7910 PHELPS v. ALAMEIDA
ply stated that Phelps “failed to set forth any cognizable
ground to warrant reconsideration of the Court’s prior order.”
Phelps v. Alameda, No. 98-2002-MMC (N.D. Cal. Dec. 11,
2006) (order denying motion for reconsideration). The court
offered no further explanation of its decision.

Following this third refusal by the district court to examine
the merits of his timely filed habeas petition, Phelps sought
yet another certificate of appealability from the district court,
which was once again denied. He then sought a certificate of
appealability from this court, which was initially denied.
Undeterred, Phelps petitioned this court for reconsideration of
that denial, which we granted. We issued a certificate of
appealability with respect to the following question: “whether
the inconsistent application of rules governing finality of Cali-
fornia Supreme Court habeas decisions deprived appellant of
a fundamental right and constitutes an extraordinary circum-
stance warranting relief pursuant to Federal Rule of Civil Pro-
cedure 60(b)(6).”

Over eleven years after Phelps filed his petition for habeas
corpus in the district court, we now address this most recent
question.

II.

Phelps’ appeal from the denial of his Rule 60(b) motion
presents three interrelated questions. First: following the orig-
inal dismissal of his federal habeas petition as untimely, has
there in fact been an intervening change in the law with
respect to how summary denials of habeas petitions by the
California Supreme Court are construed for purposes of calcu-
lating AEDPA’s statute of limitations? Second: can a motion
for reconsideration under Fed. R. Civ. P. 60(b)(6) ever be
predicated on an intervening change in the law? Third: if such
a motion can be predicated on an intervening change in the
law, how should such a request for reconsideration be ana-
lyzed? We address each of these questions in turn.
 PHELPS v. ALAMEIDA 7911
A.

As a preliminary matter, we must determine whether the
law governing the timeliness of Phelps’ habeas petition has
indeed changed since the original judgment dismissing that
petition became final. As indicated in the procedural history
above, there is no doubt in our minds that the law has in fact
changed, and that it has changed decisively in Phelps’ favor.
However, because the State’s central argument on appeal is
that Phelps’ habeas petition remains untimely even under cur-
rently governing law, we will now address that contention.

As explained in detail above, Phelps initially filed his state
petition for habeas corpus in the California Court of Appeal.
Once that court denied his petition, he then sought review in
the California Supreme Court via a petition for review. As we
have previously explained, “there are two methods by which
a petitioner may seek review by the California Supreme Court
after a habeas petition is denied by the Court of Appeal. The
preferred method is by a petition for review, but the petitioner
is also free to file instead an original [habeas] petition in the
California Supreme Court,” invoking that court’s original
jurisdiction. Saffold v. Newland, 250 F.3d 1262, 1266 n.4 (9th
Cir. 2000); see supra note 6. Phelps followed the “preferred
method,” and the California Supreme Court denied his peti-
tion for review on April 30, 1997. The district court construed
that denial as an “order” under California Rule of Court 24(a)
and therefore considered it final as of the date it was filed. As
such, it considered Phelps’ federal habeas petition, which was
filed on May 15, 1998, to have been filed fifteen days past
AEDPA’s one-year statute of limitations.

[1] Fifteen months after the district court’s dismissal
became final, this court issued a published opinion holding
that “Rule 24 of the California Rules of Court provides that
. . . a denial of a habeas petition within the California
Supreme Court’s original jurisdiction is not final for 30 days.”
Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (per
7912 PHELPS v. ALAMEIDA
curiam) (emphasis added). Bunney was quickly reaffirmed in
multiple published opinions of this court, including one issued
by the en banc court that directly stated, “Under Bunney,
which we now reaffirm[,]” “the California Supreme Court’s
denial of a petition for collateral relief does not become final
until thirty days after the denial is issued.” Allen v. Lewis, 295
F.3d 1046 (9th Cir. 2002) (en banc); see also Smith v. Dun-
can, 297 F.3d 809, 814 (9th Cir. 2002) (following Bunney);
Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir. 2002) (same).

While these cases would seem to resolve in Phelps’ favor
the question of whether his federal habeas petition was timely
filed, the Attorney General seizes on the words “original juris-
diction” in Bunney’s holding to argue that Bunney did not
change the law with respect to individuals like Phelps who
followed the “preferred method” and filed a petition for
review with the California Supreme Court instead of filing an
original habeas petition, as happened to be the case in Bun-
ney. The state’s argument is devoid of merit for multiple rea-
sons.

[2] First, no less an authority than the United States
Supreme Court has made clear that, for purposes of AEDPA’s
statute of limitations, there is absolutely no functional or legal
difference between the two forms of petitions filed in the Cal-
ifornia Supreme Court. The Court explicitly stated that “the
original [habeas] writ in California . . . is interchangeable
with the petition for hearing.”11 Carey v. Saffold, 536 U.S.
214, 225 (2002) (emphasis added).

[3] Second, recognizing that there is no difference between
the two petitions other than the word written on their cover
11
As we have observed, “a ‘petition for hearing’ before the California
Supreme Court . . . is now called a ‘petition for review.’ ” Roman v.
Estelle, 917 F.2d 1505, 1506 (9th Cir. 1990). “The same principle[s]
hold[ ] for California’s ‘petition for review’ as for the earlier ‘petition for
rehearing.’ ” Id.
 PHELPS v. ALAMEIDA 7913
pages, this court has directly applied the Bunney rule to peti-
tions for review in precisely the same manner that it applies
the rule to original habeas petitions. In Biggs v. Duncan, a
case that also addressed AEDPA’s statute of limitations, we
said that “a petition for review [filed] with the California
Supreme Court . . . became final 30 days [aft]er” its denial.
339 F.3d 1045, 1047 (9th Cir. 2003) (emphasis added); see
also Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002)
(same). The procedural history at issue in Biggs is directly
analogous to the procedural history of Phelps’ case. The
State’s argument is thus squarely foreclosed.

Finally, the third and most damning indication that the
State’s position is meritless is that the State explicitly argued
in this case that there is no distinction between a petition for
review and an original habeas petition filed with the Califor-
nia Supreme Court. In its initial pleadings before the district
court requesting that Phelps’ federal habeas petition be dis-
missed as untimely, the State wrote:

When an inmate’s petition for writ of habeas corpus
in the [California] Court of Appeal has been denied,
the inmate may either petition for review of that
decision in the California Supreme Court, or file an
original petition for habeas corpus in the California
Supreme Court. The two courses of action appear to
differ in name only.

Later, at oral argument before the district court, the State
explicitly argued that there was no distinction between an
original petition and a petition for review:

A petitioner for writ of habeas corpus in the Califor-
nia Supreme Court may call his or her petition a peti-
tion for habeas corpus, or if a similar petition has
been filed before the state Court of Appeal, it may
be called a petition for review of the Court of Appeal
habeas corpus petition. However, these differ in
7914 PHELPS v. ALAMEIDA
name only. To our understanding and the cases and
practice of the court, they differ in name only. The
rules as to finality are not any different. . . . The Cal-
ifornia Supreme Court treats them as identical for all
purposes.

It was not until Bunney made clear that the central argument
advanced by the State before the district court was incorrect
that the State reversed course and advanced the position it
now urges on appeal. Thus, even if this position were not
clearly erroneous under circuit and Supreme Court precedent,
the State is not free on appeal to rely on it as it is directly con-
trary to the argument that the State presented to the district
court. C.f., e.g., United Nat’l Ins. Co. v. Spectrum Worldwide,
Inc., 555 F.3d 772, 778 (9th Cir. 2009) (“[J]udicial estoppel
is an equitable doctrine [that] . . . . bars inconsistent positions
taken in the same litigation . . . .”).

[4] In sum, the rule established in Bunney, as applied in
Lott and Biggs, indisputably applies to Phelps’ case. The State
conceded as much before the district court, and its original
position is the only position supported by the law.

B.

As the discussion above makes clear, there can be no doubt
that shortly after this court affirmed the dismissal of Phelps’
habeas petition there was “a clear and authoritative change in
the governing law.” Polites v. United States, 364 U.S. 426,
432 (1960). Thus, had Phelps’ petition been considered under
the precedents as they existed shortly after his first appeal,
there is no question that he would have prevailed. The ques-
tion we must now consider is what significance, if any, this
intervening change in the law holds for Phelps’ motion for
reconsideration under Fed. R. Civ. P. 60(b)(6).12 We review
12
Federal Rule of Civil Procedure 60(b) states as follows:
 PHELPS v. ALAMEIDA 7915
the district court’s denial of the motion for an abuse of discre-
tion. Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008).
However, the district court necessarily abused its discretion if
its denial “rested upon an erroneous view of the law.” Faile
v. Upjohn Co., 988 F.2d 985, 986-87 (9th Cir. 1993).

In denying the motion currently under review, the district
court simply stated that Phelps “failed to set forth any cogni-
zable ground to warrant reconsideration of [its] prior order”
of dismissal. Phelps, No. 98-2002-MMC (N.D. Cal. Dec. 11,
2006) (order denying motion for reconsideration). However,
when denying Phelps’ original Rule 60(b) motion, the court
provided a more detailed rationale, stating that “a change in
the applicable law after a judgment has become final is not a
sufficient basis for vacating the judgment.” Phelps, No. 98-
2002-MMC, slip op. at 2 (N.D. Cal. Mar. 26, 2002) (order
denying motion to reinstate) (quoting Tomlin v. McDaniel,
865 F.2d 209, 210 (9th Cir. 1989)). While that first motion
was dismissed, incorrectly, for lack of jurisdiction, the district
court presumably relied on the same logic in the denial order
currently under review. Accordingly, we construe its denial of
the second motion for reconsideration as predicated on the
same rationale articulated in its denial of the first motion: spe-
cifically, that a Rule 60(b)(6) motion can never be granted if
it is based on an intervening change in the law.

[T]he court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been satis-
fied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that justifies relief.
7916 PHELPS v. ALAMEIDA
In applying this per se rule to deny Phelps’ motion, the dis-
trict court quoted directly from this court’s opinion in Tomlin
v. McDaniel, 865 F.2d 209, 210 (9th Cir. 1989). Tomlin
affirmed the denial of a Rule 60(b)(6) motion because “the
judgment [at issue] . . . became final before the laws
changed.” Id. at 211. The court further stated that the fact that
Tomlin’s motion was predicated on an intervening change in
the law was “the rock on which [his] arguments founder[ed].”
Id. at 211. Thus, if Tomlin‘s per se approach remained good
law, the district court’s denial of Phelps’ motion for reconsid-
eration was compelled by precedent and cannot have been an
abuse of discretion.

The Tomlin per se rule that Rule 60(b)(6) motions cannot
be predicated on intervening changes in the law was, how-
ever, no longer good law. The Supreme Court directly refuted
the Tomlin rule in a case bearing a striking resemblance to the
case before us: Gonzalez v. Crosby, 545 U.S. 524 (2005).13 In
Gonzalez, an inmate in state prison filed a petition for federal
habeas relief that was denied by the federal district and appel-
late courts as untimely under AEDPA’s statute of limitations.
Id. at 527. Seven months later, the Supreme Court issued a
decision that reversed the rule relied upon by the court of
appeals. Had the Supreme Court’s new rule been applied in
Gonzalez’s case, it would have rendered his habeas petition
timely. Id. In light of this change in the law, Gonzalez, like
Phelps, filed a Rule 60(b)(6) motion seeking to reopen his
case. Id. The Supreme Court’s central holding in Gonzalez
13
Gonzalez was not the first indication from the Supreme Court that
Rule 60(b)(6) is not governed by a per se approach such as that set forth
in Tomlin. See Agostini v. Felton, 521 U.S. 203, 239 (1997); Polites, 364
U.S. at 432. Indeed, discussing precedents predating Gonzalez, we have
previously observed that “the Supreme Court suggested” at an early point
in its case law on this subject “that . . . it might be wrong to inflexibly
withhold relief under Rule 60(b) ‘when there has been a clear and authori-
tative change in the governing law.’ ” Clifton v. Attorney Gen. of Cal., 997
F.2d 660, 664 n.5 (9th Cir. 1993) (emphasis added) (quoting Polites, 364
U.S. at 432).
 PHELPS v. ALAMEIDA 7917
was that a Rule 60(b)(6) motion is the proper means of bring-
ing such a challenge and that such a motion should not be
construed as a second or successive habeas petition subject to
the strict restrictions of 28 U.S.C. § 2244(b)(3)(A).14 Id. at
533.

[5] However, most relevant to the present issue before us,
the Court then went on to decide the merits of Gonzalez’s
Rule 60(b) motion. In so doing, it did not hold that denial of
the motion was required because it rested on a subsequent
change in the law. Rather, the Court emphasized two specific
factors to demonstrate that Gonzalez’s case did not exhibit the
“extraordinary circumstances” required to grant Rule 60(b)(6)
relief. The Court specifically held that, because of these two
factors, which we discuss in detail in the next section of our
analysis, “[t]he change in the law” was an insufficient ground
for relief under Rule 60(b)(6) “in petitioner’s case.” Id.
(emphasis added).

[6] That the Court applied a case-by-case approach rather
than a per se rule is made all the more clear by its favorable
citation to the Eleventh Circuit’s opinion in Ritter v. Smith,
811 F.2d 1398, 1400 (11th Cir. 1987). Noting that “Ritter
[was] cited favorably by the Supreme Court in Gonzalez,” we
have previously stated that Ritter “is instructive” for courts
applying Rule 60(b)(6) to habeas corpus. Harvest, 531 F.3d
at 748 n.8. In Ritter, the Eleventh Circuit squarely addressed
the argument that “a supervening change in the law can never
present a sufficient basis for Rule 60(b)(6) relief.” 811 F.2d
at 1401. The court, however, reached “the opposite conclu-
sion” and held that precedents from its own and other circuits
“plainly allow Rule 60(b)(6) relief where there has been a
clear-cut change in the law.” Id. (citing Wilson v. Fenton, 684
F.2d 249, 251 (3d Cir. 1982); Fackelman v. Bell, 564 F.2d
734. 736 (5th Cir. 1977)). The court made clear that “a change
14
It is this holding that directly overruled the district court’s initial
denial of Phelps’ first Rule 60(b) motion for lack of jurisdiction.
7918 PHELPS v. ALAMEIDA
in the law will not always provide the truly extraordinary cir-
cumstances necessary to reopen a case.” Id. Rather, it “con-
clude[d] that something more than a ‘mere’ change in the law
is necessary.” Id. Accordingly, it examined “several factors in
th[e] case in addition to the fact of the change in the law” in
reaching its conclusion “that the circumstances . . . war-
rant[ed] relief under Rule 60(b).”15 Id.

[7] The Supreme Court’s favorable citation to Ritter as an
“instance[ ]” in which “Rule 60(b) ha[d] an unquestionably
valid role to play in [a] habeas case[ ],” when combined with
the Court’s own analysis of the Rule 60(b) motion at issue in
Gonzalez, indicates that the proper course when analyzing a
Rule 60(b)(6) motion predicated on an intervening change in
the law is to evaluate the circumstances surrounding the spe-
cific motion before the court. As the Sixth Circuit rightly held
when applying Gonzalez, “the decision to grant Rule 60(b)(6)
relief is a case-by-case inquiry that requires the trial court to
intensively balance numerous factors, including the compet-
ing policies of the finality of judgments and the incessant
command of the court’s conscience that justice be done in
light of all the facts.” Stokes v. Williams, 475 F.3d 732, 736
(6th Cir. 2007) (internal quotation marks omitted). It is this
“case-by-case inquiry,” and not the per se rule of Tomlin, that
should govern Rule 60(b)(6) in Gonzalez‘s wake.

[8] When a decision from the Supreme Court has “undercut
the theory or reasoning underlying [a] prior circuit precedent
in such a way that the cases are clearly irreconcilable, . . . .
a three-judge panel of this court and district courts should
consider themselves bound by the intervening higher author-
ity and reject the prior opinion of this court as having been
effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc); see also id. (noting that “lower
courts [are] bound not only by the holdings of higher courts’
15
These factors, along with the Gonzalez factors, are discussed in more
detail in the following section.
 PHELPS v. ALAMEIDA 7919
decisions but also by their ‘mode of analysis’ ”). Because
Gonzalez and Tomlin are clearly irreconcilable in their analyt-
ical approaches to Rule 60(b)(6), we hold that Tomlin‘s per
se approach has been overruled by intervening Supreme Court
precedent. We agree that a “case by case inquiry” is required.
In so holding, we harmonize our circuit’s law with the law of
nine of the eleven other circuits that have addressed this issue.16
Only the Fourth and Tenth Circuits still adhere to a per se rule
that changes in the law can never support a Rule 60(b)(6)
motion. However, the relevant precedents in those circuits
antedate Gonzalez by over a decade, and neither circuit
appears to have revisited the issue since Gonzalez was decided.17
16
See GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007);
United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334,
335 (5th Cir. 2005); Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004);
Morris v. Horn, 187 F.3d 333, 341-43 (3d Cir. 1999); Kansas Pub. Empls.
Retirement Sys. v. Reimer & Koger Assocs., 194 F.3d 922, 925 (8th Cir.
1999); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., 131 F.3d 625,
628 (7th Cir. 1997); Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.
1996); W.L. Gore & Assoc. v. C.R. Bard, Inc., 977 F.2d 558, 562 (Fed.
Cir. 1992); see also O’Callaghan v. Shirazi, 204 Fed. App’x 35, 36 (1st
Cir. 2006) (per curiam).
17
See Dowell v. State Farm Fire & Casualty Auto. Ins. Co., 993 F.2d
46 (4th Cir. 1993); Van Skiver v. United States, 952 F.2d 1241, 1245 (10th
Cir. 1991).
The Federal Circuit has also expressed explicit preference for the
minority’s per se rule, but did so in an opinion that, in addition to antedat-
ing Gonzalez, is unpublished and contradicts a published Federal Circuit
precedent. Compare Concept Design Elecs. & Mfg. v. Duplitronics, Inc.,
No. 96-1065, 1996 U.S. App. LEXIS 33145, at *11 (Fed. Cir. Dec. 19,
1996) (adopting the minority rule set forth in Dowell over the majority
rule of Ritter), with W.L. Gore & Assoc., 977 F.2d at 562 (“[A]n interven-
ing change in law is a factor to be weighed, along with other aspects of
the particular case, against the public and private interest in finality of
judgments.”).
The Court of Appeals for the District of Columbia Circuit does not
appear to have squarely addressed post-Gonzalez whether a Rule 60(b)(6)
motion predicated on an intervening change in the law can ever be
granted. In a decision predating Gonzalez, the court appeared to endorse
7920 PHELPS v. ALAMEIDA
[9] In sum, Tomlin’s per se approach to Rule 60(b) is no
longer good law.18 The district court’s per se rejection of
Phelps’ motion for reconsideration, which relied directly and
exclusively on Tomlin, therefore “rested upon an erroneous
view of the law.” Faile, 988 F.2d at 986-87. Accordingly,
“the district court abused its discretion.” Id.

C.

Having concluded that the district court’s rationale for
rejecting Phelps’ motion for reconsideration was erroneous,
we now address the final issue presented by this appeal: What
analysis should courts employ when evaluating the merits of
a motion for reconsideration such as the one presented in this
case? Ordinarily, this analysis will be conducted by district
courts in the course of reviewing Rule 60(b)(6) motions in the
first instance. However, as the Supreme Court held in Gonza-
lez, 545 U.S. at 536-38, appellate courts may, in their discre-
tion, decide the merits of a Rule 60(b) motion in the first

the per se approach. See Delta Foods Ltd. v. Republic of Ghana, 265 F.3d
1068, 1071 (D.C. Cir. 2001) (quoting Polites, 364 U.S. at 431). Contra
Polites, 364 U.S. at 433. Following Gonzalez, it suggested in passing and
in dicta “that ‘extraordinary circumstances’ are not present when . . . there
has been an intervening change in case law.” Kramer v. Gates, 481 F.3d
788, 792 (D.C. Cir. 2007). However, because that opinion cites Agostini
and Gonzalez as examples of the asserted proposition, see id., it seems
unlikely that the court intended to endorse a per se rule, given Gonzalez’s
clear use of a case-by-case approach.
18
In a brief footnote in a case that post-dated Gonzalez, we affirmed the
denial of a Rule 60(b) motion on the ground that it relied on a change in
decisional law, citing Tomlin. See Delay v. Gordon, 475 F.3d 1039, 1046
n.13 (9th Cir. 2007) (citing Tomlin, 865 F.2d at 210). Because the footnote
did not cite or even mention Gonzalez, we cannot assume that we intended
to come to any conclusion as to the effect of Gonzalez on Tomlin. Now,
having considered Gonzalez’s effect, we conclude, as explained above,
that it overrules Tomlin, at least with respect to the latter’s per se rule. Cf.
Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1121 (9th Cir.
2003).
 PHELPS v. ALAMEIDA 7921
instance on appeal. But cf. id. at 540 (Stevens, J., dissenting).
Here, because all of the facts relevant to our analysis are fully
set forth in the record, and because this appeal presents
unusual circumstances — specifically, that Phelps has already
suffered extremely prolonged delay in the consideration of his
federal habeas petition and the district court has already had
three opportunities to rule on Phelps’ motion for reconsidera-
tion — we exercise that discretion and decide the merits of
Phelps’ Rule 60(b)(6) motion on this appeal.

[10] As stated above, courts applying Rule 60(b)(6) to peti-
tions for habeas corpus have considered a number of factors
in deciding whether a prior judgment should be set aside or
altered. Most notably, the Supreme Court in Gonzalez and the
Eleventh Circuit in Ritter, laid out specific factors that should
guide courts in the exercise of their Rule 60(b)(6) discretion.
In discussing these factors, we do not suggest that they
impose a rigid or exhaustive checklist: “Rule 60(b)(6) is a
grand reservoir of equitable power,” Harrell v. DCS Equip.
Leasing Corp., 951 F.2d 1453, 1458 (5th Cir. 1992) (internal
footnote and quotation marks omitted), and it affords courts
the discretion and power “to vacate judgments whenever such
action is appropriate to accomplish justice.” Gonzalez, 545
U.S. at 542 (quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 864 (1988)). However, we have “cau-
tioned against the use of provisions of Rule 60(b) to circum-
vent the strong public interest in [the] timeliness and finality”
of judgments. Flores v. Arizona, 516 F.3d 1140, 1163 (9th
Cir. 2008). Given these important and potentially countervail-
ing considerations, the exercise of a court’s ample equitable
power under Rule 60(b)(6) to reconsider its judgment “re-
quires a showing of ‘extraordinary circumstances.’ ” Gonza-
lez, 545 U.S. at 536. The factors we discuss below are
designed to guide courts in determining whether such extraor-
dinary circumstances have been demonstrated by an individ-
ual seeking relief under the rule.19
19
The factors we describe are particularly useful in applying Rule
60(b)(6) to rejected petitions for habeas corpus. We note, however, that
7922 PHELPS v. ALAMEIDA
[11] Our analysis must begin with the Supreme Court’s
decision in Gonzalez, a case that is both strikingly similar and
dissimilar to the case before us. As described above, the pos-
ture of Gonzalez is almost identical to the posture of this case:
a federal habeas petition was dismissed as untimely under
AEDPA in a decision that was soon overruled in a more
authoritative opinion; the petitioner then sought reconsidera-
tion of that dismissal by filing a motion for reconsideration
under Rule 60(b)(6). In evaluating the merits of that motion,
which it ultimately denied, the Supreme Court emphasized
two specific factors that we must consider in this case as well.
First, the Court emphasized that, in Gonzalez’s case, “[t]he
District Court’s [initial] interpretation was by all appearances
correct under the Eleventh Circuit’s then-prevailing interpre-
tation of [AEDPA’s statute of limitations].” Gonzalez, 545
U.S. at 536 (emphases added). In other words, the intervening
change in the law in Gonzalez overruled an otherwise settled
legal precedent. Second, the Court stressed that “[t]he change
in the law [was] all the less extraordinary in [Gonzalez’s]
case, because of his lack of diligence in pursuing review of
the statute-of-limitations issue.” Id. at 537. The Court noted
that Gonzalez “neither raised that issue in his application for
a COA, nor filed a petition for rehearing of the Eleventh Cir-
cuit’s denial of a COA, nor sought certioari review.” Id.

[12] Given the strong similarity between the posture of this
case and Gonzalez, we must give significant consideration to
the two Gonzalez factors in evaluating Phelps’ motion. How-
ever, the strong dissimilarity between Phelps and Gonzalez
with respect to those two factors means that the factors neces-
sarily cut in Phelps’ favor. Specifically, unlike in Gonzalez,
the change in the law worked in this case by Bunney v. Mitch-

Rule 60(b) applies broadly to all federal civil actions; while some of the
factors we emphasize here may be useful in contexts other than the one
before us, we express no opinion on their applicability vel non beyond the
scope of habeas corpus.
 PHELPS v. ALAMEIDA 7923
ell did not upset or overturn a settled legal principle. To the
contrary, at the same time that Phelps’ original appeal was
pending before a panel of this court, the exact same issue was
pending before two other Ninth Circuit panels considering
other appeals. As described earlier, those panels reached dia-
metrically opposite outcomes from that reached by the panel
reviewing Phelps’ case. Moreover, none of these dispositions
was published and as such they were nonprecedential. See
Reynolds Metals Co. v. Ellis, 202 F.3d 1246, 1249 (9th Cir.
2000) (“[A]n unpublished memorandum disposition . . . is not
binding precedent.”). Accordingly, none of these dispositions
was capable of establishing, to use the Supreme Court’s
words, a “prevailing interpretation of 28 U.S.C. § 2244(d)(2)”
as it relates to summary denials from the California Supreme
Court. Gonzalez, 545 U.S. at 536. Furthermore, even if mem-
orandum dispositions were capable of demonstrating the
“then-prevailing” law for purposes of this inquiry, cf. Prison
Legal News v. Lehman, 397 F.3d 692, 701-02 (9th Cir. 2005),
the discord exemplified by the contradictory memorandum
dispositions here demonstrates that the law in our circuit was
decidedly unsettled at the time Phelps’ habeas petition was
before the district court. The law regarding the core disputed
issue in Phelps’ case did not become settled until fifteen
months after his appeal became final, at which point it was
clear from Bunney that the “prevailing interpretation of 28
U.S.C. § 2244(d)(2)” was the interpretation he had pressed all
along. Accordingly, whereas the first Gonzalez factor cut
against granting Rule 60(b)(6) relief in that case, it necessarily
cuts in favor of granting such relief here.

Similarly, the sharp divergence between Phelps and Gonza-
lez with respect to the second Gonzalez factor — the petition-
er’s exercise of diligence in pursuing the statute-of-limitations
issue — demonstrates that this factor also cuts strongly in
Phelps’ favor. Whereas Gonzalez “neither raised that issue in
his application for a COA, nor filed a petition for rehearing
of the Eleventh Circuit’s denial of a COA, nor sought certio-
rari review of that denial,” Gonzalez, 545 U.S. at 537, Phelps
7924 PHELPS v. ALAMEIDA
has demonstrated more diligence than we could ever reason-
ably demand from a habeas petitioner. When Phelps’ habeas
petition was first dismissed as untimely, he sought and
received a certificate of appealability and pressed on appeal
the very argument later embraced by Bunney. When the dis-
missal of his habeas petition was affirmed, he filed a petition
for rehearing and a petition for rehearing en banc. The latter
was rejected despite the clear incongruity between almost
simultaneously issued memorandum dispositions.20 Following
the rejection of his petitions for rehearing, Phelps filed a peti-
tion for certiorari. After that was denied, he filed his first Rule
60(b)(6) motion for reconsideration a mere four months after
Bunney became final and vindicated his original position.
When the district court denied him a certificate of appeala-
bility from the denial of that motion he dutifully sought and
obtained a certificate from this court. When his second appeal
was dismissed, Phelps again petitioned this court for rehear-
ing and rehearing en banc. Once Phelps was vindicated by the
Supreme Court’s decision in Gonzalez, he filed another
motion for reconsideration. Despite the fact that he had to pre-
pare this second motion pro se from his prison cell, he filed
it ten months after Gonzalez was issued. The pro se motion
and its supporting legal memorandum set forth clear, well-
reasoned, and indeed correct legal arguments that were sup-
ported by all of the appropriate citations to case law. When
that motion was denied, Phelps again sought a certificate of
appealability from the district court. When that was denied, he
sought a certificate from this court, and when that was denied
he petitioned for reconsideration, which we granted, affording
him the opportunity to argue his current appeal.
20
Phelps’ petition for rehearing en banc was denied four days after the
panel authoring one of the contradictory memorandum dispositions issued
its holding. Compare Phelps v. Alameda, No. 99-15493 (9th Cir. May 8,
2000) (order denying petition for rehearing and petition for rehearing en
banc), with Washington v. Lindsey, No. 99-55149, 2000 U.S. App. LEXIS
9015, at *4 (9th Cir. May 4, 2000). Our en banc court endorsed the Bun-
ney rule shortly after Bunney was decided. See Allen, 295 F.3d 1046.
 PHELPS v. ALAMEIDA 7925
[13] We cannot imagine a more sterling example of dili-
gence than Phelps has exhibited. At every stage of this case
over the past decade, Phelps has pressed all possible avenues
of relief, has been remarkably undeterred by the repeated and
often unjustified setbacks he has suffered, and has put forward
cogent, compelling, and correct legal arguments, at times
doing so without the benefit of professional legal advice. No
one should have to work so hard to have the merits of his con-
stitutional claims reviewed by a federal judge. That Phelps did
so weighs strongly in his favor under the second Gonzalez
factor.

[14] In addition to the two factors relied upon by the
Supreme Court in Gonzalez, which weigh heavily in Phelps’
favor, we believe that the factors relied upon by the Eleventh
Circuit in Ritter v. Smith also provide useful guidance for
courts applying Rule 60(b)(6) to petitions for habeas corpus.
As we have previously stated, Ritter is an “instructive” prece-
dent “cited favorably by the Supreme Court,” Harvest, 531
F.3d at 748 n.8, as an example of a habeas case in which
“Rule 60(b) ha[d] an unquestionably valid role to play,” Gon-
zalez, 545 U.S. at 534. Indeed, Ritter presents the most thor-
ough analysis thus far of Rule 60(b)(6) as applied to habeas
petitions. In evaluating the motion for reconsideration before
it, the Eleventh Circuit concluded that four “factors in th[at]
case, in addition to the fact of the change in the law, per-
suade[d it] that the circumstances [at issue were] sufficiently
extraordinary to warrant relief.” Ritter, 811 F.2d at 1401. We
discuss each of those factors in relation to Phelps’ case.

The first factor articulated in Ritter is whether granting the
motion to reconsider would “undo the past, executed effects
of the judgment,” thereby disturbing the parties’ reliance
interest in the finality of the case. 811 F.2d at 1402. As an
example of a party’s reliance interest in the finality of a judg-
ment, the court noted that when a judgment conveys land
from one party to another and the prevailing party “enter[s]
upon the land and install[s] pipes and appurtenances,” the
7926 PHELPS v. ALAMEIDA
judgment should not be overturned even if it is predicated on
a later-overruled legal precedent because the prevailing party
has relied on his legal right to the land. Id. at 1401 (citing
Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958)).
Similarly, the court noted that when a judgment affords a fed-
eral habeas petitioner a new trial that results in the eventual
dismissal of the charges and his release from custody, the
judgment should not be disturbed and the petitioner’s freedom
revoked years later due to intervening precedents because
doing so would significantly alter his legal status as a free
man. See id. at 1402 (citing Hall v. Warden, 364 F.2d 495
(4th Cir. 1966)). The underlying principle embodied by these
examples is that Rule 60(b)(6) relief is less warranted when
the final judgment being challenged has caused one or more
of the parties to change his legal position in reliance on that
judgment.

In Phelps’ case, however, neither party has relied in such
a fashion on the finality of the district court’s dismissal. Nei-
ther the State nor Phelps have undergone any change in legal
position over the past eleven years due to the district court’s
judgment. To the contrary, when Phelps’ petition was dis-
missed, his federal case simply ended: Phelps remained in
prison, and the State stopped defending his imprisonment.
There are no “past effects” of the judgment that would be dis-
turbed if the case were reopened for consideration of the mer-
its of Phelps’ habeas petition. Instead, the parties would
simply pick up where they left off. Accordingly, the first Rit-
ter factor weighs heavily in Phelps’ favor.

The second factor relied upon by the court in Ritter exam-
ines the “delay between the finality of the judgment and the
motion for Rule 60(b)(6) relief.” Id. This factor represents the
simple principle that a change in the law should not indefi-
nitely render preexisting judgments subject to potential chal-
lenge. Rather, individuals seeking to have a new legal rule
applied to their otherwise final case should petition the court
for reconsideration with a degree of promptness that respects
 PHELPS v. ALAMEIDA 7927
“the strong public interest in timeliness and finality.” Flores,
516 F.3d at 1163. In this respect, the second Ritter factor is
similar, although not identical, to the second Gonzalez factor,
which emphasizes the petitioner’s diligence in challenging on
appeal the judgment he now seeks to overturn.

In evaluating this second factor, the Eleventh Circuit
described a motion for reconsideration that was filed nine
months after the original judgment became final as represent-
ing “only a very brief delay.” Ritter, 811 F.2d at 1402; see
also id. at 1400. In Phelps’ case, his original motion for
reconsideration was filed only four months after the judgment
dismissing his petition became final.21 Thus, much like the
Gonzalez factor emphasizing diligence, Ritter’s emphasis on
delay weighs strongly in Phelps’ favor.

The “third factor supporting a finding of extraordinary cir-
cumstances” in Ritter was “the close relationship between the
two cases at issue” — the decision embodying the original
judgment and the subsequent decision embodying the change
in the law. Id. at 1402. Much like the first Gonzalez factor,
which focuses on the extent to which the law was settled prior
to the intervening change, this factor is designed to recognize
that the law is regularly evolving. The foundation of the
American judicial system that sets it apart from many regimes
21
Phelps’ second motion for reconsideration was of course filed almost
six years after his original dismissal became final. However, this is so only
because his first motion for reconsideration was incorrectly dismissed as
a successive habeas petition — an error that Phelps promptly sought to
correct after Gonzalez overruled that erroneous dismissal. Given these cir-
cumstances, we treat the two motions as inextricably intertwined, and in
examining the second Ritter factor we consider the length of time between
when the original judgment dismissing Phelps’ habeas petition became
final after appeal, see Fed. R. App. P. 41, and the time at which he filed
his first motion for reconsideration. To do otherwise would penalize
Phelps simply for not appending the word “renewed” to his second, pro
se motion for reconsideration and would thereby employ the same exces-
sive formalism that has already frustrated the pursuit of justice throughout
the long decade this case has been pending.
7928 PHELPS v. ALAMEIDA
across the world is its common law heritage, which is imma-
nent in judicial interpretations of legal texts ranging from stat-
utes to judicial opinions to the Constitution itself.22 Given this
tradition, legal rules and principles inevitably shift and evolve
over time, but the mere fact that they do so cannot upset all
final judgments that have predated any specific change in the
law. Rather, the nature of that change is important. Accord-
ingly, the third Ritter factor directs courts to examine closely
the original and intervening decisions at issue in a particular
motion for reconsideration predicated on an intervening
change in the law: if there is “a close connection between the
two cases, the court [will be more likely to] f[i]nd the circum-
stances sufficiently extraordinary to justify disturbing the
finality of the [original] judgment.” Id.

In both Phelps’ case and in Ritter, see id., the intervening
change in the law directly overruled the decision for which
reconsideration was sought. Furthermore, in both cases, the
intervening precedent “resolved a conflict between” compet-
ing and coequal legal authorities. Id. In Ritter, the intervening
Supreme Court precedent resolved a split between the Elev-
enth Circuit and the Alabama Supreme Court, id.; in Phelps’
case, the intervening precedent resolved a conflict between
multiple Ninth Circuit panels that had issued contemporane-
ous but contradictory memorandum dispositions. The Elev-
enth Circuit considered both the direct relationship between
the original and intervening decisions and the fact that the lat-
ter decision definitively resolved a preexisting conflict in the
law as weighing in favor of granting relief under Rule
60(b)(6). The same is true in Phelps’ case and the third Ritter
22
See, e.g., Jane S. Schacter, The Confounding Common Law Original-
ism in Recent Supreme Court Statutory Interpretation: Implications for the
Legislative History Debate and Beyond, 51 STAN. L. REV. 1 (1998); David
A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV.
877 (1996). But see Antonin Scalia, Common-Law Courts in a Civil-Law
System: The Role of United States Federal Courts in Interpreting the Con-
stitution and Laws, in A MATTER OF INTERPRETATION (1998).
 PHELPS v. ALAMEIDA 7929
factor accordingly weighs in favor of granting his motion
here.

Finally, the court in Ritter also observed that, in applying
Rule 60(b)(6) to cases involving petitions for habeas corpus,
judges must bear in mind that “[a] federal court’s grant of a
writ of habeas corpus . . . is always a serious matter implicat-
ing considerations of comity.” Id. at 1403. To be sure, the
need for comity between the independently sovereign state
and federal judiciaries is an important consideration, as is the
duty of federal courts to ensure that federal rights are fully
protected. However, in the context of Rule 60(b)(6), we need
not be concerned about upsetting the comity principle when
a petitioner seeks reconsideration not of a judgment on the
merits of his habeas petition, but rather of an erroneous judg-
ment that prevented the court from ever reaching the merits
of that petition. The delicate principles of comity governing
the interaction between coordinate sovereign judicial systems
do not require federal courts to abdicate their role as vigilant
protectors of federal rights. To the contrary, as the Supreme
Court has made clear, “in enacting [the habeas statute], Con-
gress sought to ‘interpose the federal courts between the
States and the people, as guardians of the people’s federal
rights — to protect the people from unconstitutional action.’ ”
Reed v. Ross, 468 U.S. 1, 10 (1984) (quoting Mitchum v. Fos-
ter, 407 U.S. 225, 242 (1972)). Even after the enactment of
AEDPA, “[t]he writ of habeas corpus plays a vital role in pro-
tecting constitutional rights.” Slack v. McDaniel, 529 U.S.
473, 483 (2000). For that reason, the Supreme Court has
emphasized that “[d]ismissal of a first federal habeas petition
is a particularly serious matter, for that dismissal denies the
petitioner the protections of the Great Writ entirely, risking
injury to an important interest in human liberty.” Lonchar v.
Thomas, 517 U.S. 314, 324 (1996) (emphasis added). Accord-
ingly, in applying Rule 60(b) to habeas corpus petitions, the
Fifth Circuit has persuasively held that

[t]he “main application” of Rule 60(b) “is to those
cases in which the true merits of a case might never
7930 PHELPS v. ALAMEIDA
be considered.” Thus, although we rarely reverse a
district court’s exercise of discretion to deny a Rule
60(b) motion, we have reversed “where denial of
relief precludes examination of the full merits of the
cause,” explaining that in such instances “even a
slight abuse may justify reversal.”

Ruiz v. Quarterman, 504 F.3d 523, 532 (5th Cir. 2007) (quot-
ing Fackelman v. Bell, 564 F.2d 734, 735 (5th Cir. 1977);
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.
1981)). We too believe that a central purpose of Rule 60(b)
is to correct erroneous legal judgments that, if left uncor-
rected, would prevent the true merits of a petitioner’s consti-
tutional claims from ever being heard. In such instances,
including the case presently before us, this factor will cut in
favor of granting Rule 60(b)(6) relief.

[15] Having carefully evaluated the factors set forth in
Gonzalez and in Ritter in the context of this case, we conclude
that Phelps’ motion for reconsideration demonstrates the
extraordinary circumstances necessary to grant relief under
Rule 60(b)(6). We emphasize once again that the factors we
have discussed do not present an exhaustive or mechanical list
of considerations. They do, however, represent well-reasoned
principles that should guide courts in exercising their discre-
tion under Rule 60(b)(6). In this case, the lack of clarity in the
law at the time of the district court’s original decision, the dil-
igence Phelps has exhibited in seeking review of his original
claim, the lack of reliance by either party on the finality of the
original judgment, the short amount of time between the origi-
nal judgment becoming final and the initial motion to recon-
sider, the close relationship between the underlying decision
and the now controlling precedent that resolved the preexist-
ing conflict in the law, and the fact that Phelps does not chal-
lenge a judgment on the merits of his habeas petition but
rather a judgment that has prevented review of those merits all
weigh strongly in favor of granting Rule 60(b)(6) relief.
Accordingly, we reverse the denial of Phelps’ motion and
 PHELPS v. ALAMEIDA 7931
grant his request for relief from the judgment dismissing his
habeas petition as untimely. On remand, the district court
shall evaluate the merits of the timely filed habeas petition
that Phelps presented over eleven years ago.23

III.

It has sometimes been said that the law is a study of “those
wise restraints that make men free.” Much of law consists of
necessary rules that give order and structure to a free society.
Some rules promote order by emphasizing the need for effi-
ciency, including the need for efficient management of the
judicial system. Other rules are employed in the service of
protecting individuals’ fundamental rights and are designed to
ensure that such individuals receive the Due Process they are
guaranteed by our Constitution. See U.S. CONST. amends. V,
XIV. Yet far too often in recent years, concern for efficiency
and procedure has overshadowed concern for basic fairness,
and has transformed our fidelity to “process” into an undue
obsession with formalism and technicalities. In short, a con-
cern for procedure has far too often obscured or eclipsed the
equally important if not greater role to be played by our dedi-
cation to justice. It was, after all, in order “to establish justice”
that our Constitution was written. Id. pmbl.

Phelps’ case represents the epitome of our obsession with
form over substance. For over eleven years, Phelps has sat in
prison while he and his attorneys have struggled to have his
claim that he is being imprisoned in violation of the Constitu-
tion evaluated on its merits. Phelps has traveled up and down
the federal judiciary’s apparatus three separate times. In so
23
The law of the case establishes that “Phelps . . . has exhausted all rele-
vant state remedies.” Phelps, 366 F.2d at 724. Thus, our holding that,
according to the rule set forth in Bunney and its progeny, the petition is
to be treated as timely filed removes the final procedural hurdle that
remains between Phelps and a substantive review of his constitutional
claims.
7932 PHELPS v. ALAMEIDA
doing, he has produced nearly four hundred pages of legal
briefs, motions, and petitions. His arguments have been evalu-
ated by no less than twelve federal judges and nine Supreme
Court Justices — not including his petitions for rehearing en
banc which were reviewed by every judge of this court.

Yet, in all this time, not a single federal judge has once
examined the substance of Phelps’ claims. All of this energy
— and, more important to Phelps, all of this time — has been
spent evaluating one procedural question after another: Was
the initial petition filed fifteen days early or fifteen days late?
The answer, we learned, was early. Should the request for
reconsideration have been called a “motion” or a “petition”?
As it turns out, it does not matter. Did the order dismissing
that motion contain a holding mixed with dicta or two alterna-
tive holdings? A fruitless diversion. Should the most recent
motion have been rejected per se or reviewed under a case-
by-case approach? It should have been reviewed in the con-
text of the case at hand. To be sure, each of these questions
raises legitimate legal issues. However, in wading through
this endless morass of procedural questions, and frequently
answering them incorrectly, a crucially important point has
been repeatedly overlooked: Over eleven years ago, a man
came to federal court and told a federal judge that he was
being unlawfully imprisoned in violation of the rights guaran-
teed to him by the Constitution of the United States. More
than eleven years later, not a single federal judge has ever
once been allowed to seek to discover whether that claim is
true.

The United States Supreme Court has made clear that the
equitable power embodied in Rule 60(b) is the power “to
vacate judgments whenever such action is appropriate to
accomplish justice.”24 Given that directive, we agree that “the
decision to grant Rule 60(b)(6) relief” must be measured by
24
Gonzalez, 545 U.S. at 542 (emphasis added) (quoting Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)).
 PHELPS v. ALAMEIDA 7933
“the incessant command of the court’s conscience that justice
be done in light of all the facts.”25 With that guiding principle
in mind, we REVERSE the denial of Phelps’ motion for
reconsideration and REMAND to the district court for further
proceedings consistent with this opinion.

REVERSED and REMANDED.

25
Stokes, 475 F.3d at 736 (6th Cir. 2007) (internal quotation marks omit-
ted).