dissenting.
In analyzing the issue presented by this appeal, an important issue of federal law post-ADEPA, as to which the circuits are currently split, I begin from the dual propositions that (1) because Abdur’Rahman in his Rule 60(b) motion does not advance any new claims (and merely seeks reconsideration of the court’s earlier procedural default ruling as to the bulk of his prosecu-torial misconduct claims), 28 U.S.C. § 2244(b)(1) is the controlling subsection; and (2) the scope of this subsection is less expansive than the text suggests. We know this latter proposition to be true because, though a literal reading of the statute would hold that any petition filed after a first would be “second or successive,” the Supreme Court has rejected such a view. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (holding that § 2244(b) did not apply to petitioner’s second habeas petition because his first had been dismissed as unripe); Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (holding that § 2244(b) did not apply to petitioner’s second habeas petition because his first had been dismissed for want of exhaustion). But see Stewart v. Martinez-Villareal, 523 U.S. 637, 646-48, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (Scalia, J., dissenting); id. at 648-52, 118 S.Ct. 1618 (Thomas, J., dissenting).
On the other side of the coin, however, it is clear that in considering whether a second petition is “second or successive” for purposes of § 2244(b)(1), substance and not form is determinative. A subsequent filing can be considered a “second or successive habeas corpus application” even if not expressly labeled as such. “In a § 2254 case, a prisoner’s motion ... [respecting] the basis of the merits of the underlying decision can be regarded as a *188second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application .... ” Calderon v. Thompson, 523 U.S. 538, 553, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
The ultimate issue, of course, is just when is a numerically second petition or filing indeed “second or successive” for purposes of § 2244(b)(1). Beyond the faint contours set up by Slack and Martinez-Villareal, the boundaries of the statute are admittedly indefinite. But despite the uncertainty on the fringes, I find this much to be clear: a Rule 60(b) motion that seeks to relitigate a procedural default ruling already once adjudicated in a first habeas petition is “second or successive” under § 2244(b). To hold otherwise would be effectively to eviscerate AEDPA.
In arguing against the applicability of § 2244(b)(1), Abdur’Rahman places heavy reliance on Slack and Martinez-Villareal, as well as a third case in which the Supreme Court found § 2244(b) inapplicable, Calderon, 523 U.S. at 538, 118 S.Ct. 1489. It is true that such cases can be read to support the proposition that, at least in some cases, the statute does not mean what it says. The problem, however, is that Slack, Martinez-Villareal, and Calderon are all easily distinguished and in fact help Abdur’Rahman’s cause little, if at all.
Calderon arguably is not even a “successive” petition case. There, in the course of holding that the court of appeals had abused its discretion in recalling its mandate, the Court found § 2244(b)(1) inapplicable because in recalling the mandate the court of appeals had expressly stated that it had acted on the basis of petitioner’s first habeas petition. Calderon, 523 U.S. at 554, 118 S.Ct. 1489. The court of appeals had not “eonsider[ed] matters presented in [the] later filing.” Id. In basing his Rule 60(b) motion on the Tennessee Supreme Court’s newly-promulgated Rule 39, Abdur’Rahman, however, asked the district court below to consider matters going beyond those included in his initial petition.
Slack and Martinez-Villareal are of only slightly greater relevance. In both of these cases, the dismissal of the petitioner’s first habeas petition was not “on the merits.” Slack, 529 U.S. at 489, 120 S.Ct. 1595 (first habeas petition dismissed as unripe); Martinez-Villareal, 523 U.S. at 645-46, 118 S.Ct. 1618 (first habeas petition dismissed for failure to exhaust). Despite Abdur’Rahman’s efforts to characterize the dismissal of his petition for procedural default as a purely procedural dismissal that failed to reach the merits of his claim, we have consistently held that procedural default determinations are “on the merits.” See In re Cook, 215 F.3d 606, 608 (6th Cix.2000); see also Carter v. United States, 150 F.3d 202, 205-06 (2d Cir.1998); Bates v. Whitley, 19 F.3d 1066, 1067 (5th Cir.1994). As we noted in Cook, lack of ripeness and failure to exhaust are defects which may ultimately be cured, at such time allowing the petitioner to bring his claim before a federal court. Cook, 215 F.3d at 608. Procedural default, on the other hand, is an incurable defect, absent a showing of cause and prejudice. Id. Where a district court has found procedural default and a lack of cause and prejudice, that finding fully disposes of the petitioner’s claims.
In the final analysis, it is this fact — that Abdur’Rahman’s prosecutorial misconduct claims were adjudicated “on the merits”that makes this case different. The question may fairly be asked: if a Rule 60(b) motion that seeks to relitigate a claim already adjudicated “on the merits” in a first habeas petition is not “second or successive,” what is? Abdur’Rahman was *189entitled to an adjudication; he got it. It is not the province of this court to sit in judgment of Congress’s prohibition against rehashing claims — only to recognize it.1 The fact of a “subsequent legal development” does not change this. AEDPA cannot be whimsically cast aside. We cannot rewrite the language of the statute to provide for a second merits adjudication when the statute clearly says otherwise. If the statute is to mean anything, it must mean that when a petitioner has had certain claims in a first habeas petition adjudicated “on the merits,” a subsequent filing seeking reconsideration of that adjudication is “second or successive.”
While my view rests primarily on the recognition that Abdur’Rahman’s claims have already been once adjudicated, I note that it is supported by other considerations. For one, AEDPA’s structure and history support my conclusion. In AED-PA, Congress dramatically altered the ha-beas corpus statute governing successive petitions.2 Most significant was the removal of any reference to “adjudication” on the “merits.” This textual change suggests that Congress intended to relax the standard for what is considered a “petition,” and consequently — by inference— what is considered a “successive” petition.
A vital tenet is that AEDPA’s limitations on habeas relief trump Federal Rule of Civil Procedure 60(b). See, e.g., Pitchess v. Davis, 421 U.S. 482, 489, 95 S.Ct. 1748,
44 L.Ed.2d 317 (1975) (“Since the exhaustion requirement is statutorily codified, even if Rule 60(b) could be read to apply to this situation it could not alter the statutory command.”); Dunlap v. Litscher, 301 F.3d 873, 875 (7th Cir.2002) (Posner, J.) (“Th[e] provisions [of AEDPA] are clear and bar a district court from using Rule 60(b) to give a prisoner broader relief from a judgment rendered by the court in a prisoner’s federal habeas corpus ... proceeding. Otherwise AEDPA’s limitations on collateral attack would be set at naught.”); Fed.R.Civ.P. 81(a)(2) (“These rules are applicable to proceedings for ... habeas corpus ... to the extent that the practice in such proceedings is not set forth in statutes of the United States .... ”). Also, even if Rule 60(b) could be said to apply, the language of the Rule does not support Abdur’Rahman’s position. He made his motion under Rule 60(b)(6), but this subsection does not include mistakes of law. Mistake of law is included in Rule 60(b)(1), but motions made under that subsection must be made “not more than one year after the judgment, order, or proceeding was entered or taken.” Fed.R.Civ.P. 60(b). Thus, the time for making such a motion has long since passed, and it assuredly is not the case that AEDPA expanded the reach of Rule 60(b) in general or Rule 60(b)(6) in particular. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863, 108 *190S.Ct. 2194, 100 L.Ed.2d 855 (1988) (“Rule 60(b)(6) ... grants federal courts broad authority to relieve a party from a final judgment ‘upon such terms as are just,’ provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5).”); Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (holding that a party may “not avail himself of the broad ‘any other reason’ clause of 60(b)” if the motion is based on grounds specified in clause (1), which include “mistake, inadvertence, surprise or excusable neglect.”). In view of the one-year limitation on claims of a mistake of law or fact, excusable neglect, newly-discovered evidence and like claims for relief under Rules 60(b)(1)-(3) and in view of the general rule that Rule 60(b) may not be used “as a substitute for an appeal” or “as a technique to avoid the consequences of decisions deliberately made yet later revealed to be unwise,” Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989), the problem we face today of a conflict between a provision of Rule 60(b) and AED-PA will rarely, if ever, arise as to the types of claims enumerated in Rule 60(b)(1)-(3).
Although acknowledging the well-established rule that a party may not bring a claim under Rule 60(b)(6) if his claim could be considered under Rule 60(b)(1), the majority dismisses the applicability of Rule 60(b)(1), declaring that “the district court in this case [ ] did not make a ‘mistake’ in requiring defendants to appeal to the Tennessee Supreme Court, because they simply had no reason-based on United States Supreme Court law, state law, and federal court precedents-to know otherwise.” The majority also holds, however, that Rule 60(b)(6) is applicable here because “the district court erroneously treated petitioner’s motion as a second or successive habe-as petition.” In other words, the majority holds that Rule 60(b)(6) is applicable because the district court had previously made a legal error — failing to recognize that even prior to the promulgation of TSCR 39, Tennessee law did not require criminal defendants to raise their claims before the Tennessee Supreme Court to meet AEDPA’s exhaustion requirement. But “[t]his Court has recognized a claim of legal error as subsumed in the category of mistake under Rule 60(b)(1).” Pierce v. United Mine Workers of Am., Welfare & Retirement Fund for 1950 and 1971, 770 F.2d 449, 451 (6th Cir.1985) (citing Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir.1983)) (emphasis added); accord United States v. Reyes, 307 F.3d 451, 456 (6th Cir.2002). To borrow the majority’s phrase, it “simply stretches logic” to construe the district court’s decision as anything other than a “mistake.” And yet the majority does just this without providing a reason to explain how ignorance alone-however justifiable-transforms a court’s legal error into something other than a “mistake” for the purposes of Fed.R.Civ.P. 60(b).
The majority nonetheless offers justification for the district court’s failure to know the legal exhaustion rule by noting that “TSCR 39 eventually clarified that such an appeal was not, in fact, required.” Here, the majority seems to agree with Adams v. Holland, 330 F.3d 398 (6th Cir.2003), in which a panel of this court declared that “Rule 39 clarifies existing law rather than changing the law.” Id. at 405 (emphasis added). While the distinction between clarification and change may seem trivial, the Adams court recognized that the difference is important in determining the retroactive effect of Rule 39. Because it deemed Rule 39 a mere clarification-that is, Rule 39 made clear what Tennessee’s rule always had been-the Adams court found that the rule applied retroactively. Conversely, the Adams *191court suggested, if Rule 39 effected a change in the exhaustion requirement, then it is unclear that Rule 39 would apply retroactively in general, in turn raising doubts as to whether Rule 39 would apply to Abdur’Rahman in particular.
Despite calling Rule 39 a “clarification,” for purposes of determining whether Ab-dur’Rahman’s claim may be brought under Rule 60(b)(6), the majority undertakes the “extraordinary circumstances” analysis ordinarily utilized when the claim is that there has been a change in the law. While the majority opinion states that it is reasoning by analogy, it is difficult to see how such an analogy would apply unless the “clarification” substantively “changes” the very rule in question. The majority therefore seeks to maintain the “clarification” nomenclature of Adams, while infusing it with the meaning of “change.”
We are left then with two inescapable options: either Rule 39 merely clarifies what had always been the law, in which case the district court made a legal mistake in holding that Abdur’Rahman had failed to exhaust his claim because he did not raise it before the Tennessee Supreme Court, or Rule 39 changed the law, in which case Adams is wrongly decided, and the majority should make clear that it is overruling that precedent. If the first option is true, then, to the extent Rule 60 motions are now deemed permitted post AEDPA, Abdur’Rahman’s claim properly arises under Fed.R.Civ.P. 60(b)(1) rather than 60(b)(6)-and the motion should accordingly be dismissed as untimely. If the second option is true, then the change in law raises grave questions as to whether retroactive application of the rule is appropriate in this case.
Finally, while acknowledging that a change in the law alone does not constitute an extraordinary circumstance sufficient to permit relief under Rule 60(b)(6), the majority nonetheless finds that “the district court’s presumption about Tennessee’s procedural rules is the factor that renders the promulgation of TSCR 39 an ‘extraordinary circumstance,’ permitting possible relief pursuant to Rule 60(b)(6).” The majority therefore asserts that the promulgation of what is essentially a “new rule” does not constitute an extraordinary circumstance for the purposes of Rule 60(b)(6), but the district court’s misapplication of the “old rule” does meet that requirement. Applying this reasoning, it is difficult to see how any change in the law will fail to meet the extraordinary circumstance test.
One other oddity about Adams deserves comment. Whether Rule 39 “clarified” Tennessee law or “changed” it, there can be little doubt that it effectively overruled O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). At issue in O’Sullivan was whether the option of seeking discretionary review in the Illinois Supreme Court represented an “available” procedure for exhaustion purposes under AEDPA. See 28 U.S.C. 2254(c) (a state prisoner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has a right under the law of the State to raise, by any available procedure, the question presented.”). Doubtless, the court noted, the question whether a state review procedure is “available” requires consideration of state law but the question ultimately is a federal one that turns not on the state label given to the procedure but on how the procedure operates in practice. After reviewing the Illinois procedure, which all agree mirrors the Tennessee Supreme Court’s discretionary review procedure in all material respects, O’Sullivan concluded that the procedure was an “available” one under the federal statute and accordingly claims had to be exhausted there. In the *192aftermath of O’Sullivan, one would have thought that the historical question whether a discretionary-review procedure like Illinois’s (or Tennessee’s) was a “remed[y] available in the courts of the State” had finally been decided. As interpreted in Adams, however, Rule 39 purports retroactively to change the “available” remedy inquiry — a view of the law that not only allows Tennessee to overrule O’Sullivan but would allow Illinois to promulgate its own Rule 39 and reverse the outcome of O’Sullivan in that very case. Federal law is not that fragile. Availability in the final analysis is a question of federal law that ultimately turns on a “question of objective historical fact,” Wenger v. Frank, 266 F.3d 218, 226 (3d Cir.2001), that no State has the authority to change retroactively. Cf. Carey v. Saffold, 536 U.S. 214, 223, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (“Ordinarily, for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions, rather than the particular name that it bears.”); N.A.A.C.P. v. Alabama, 357 U.S. 449, 456, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (concluding that it was “unable to reconcile the procedural holding of the Alabama Supreme Court ... with its past unambiguous holdings” on a given procedural issue). Because Abdur’Rahman relies on our panel decision in Adams to bring this claim, I would use this case to overrule that decision.
I do not believe that Abdur’Rahman’s Rule 60(b) claim survives AEDPA’s bar on second or successive habeas petitions; however if it does, then it should be construed as a claim arising under Rule 60(b)(1), and dismissed as untimely.
The majority’s holding today conflicts with not only our own precedent, see McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.1996) (“We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition .... ”), but also with that of our sister circuits. See, e.g., United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003); Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir.2002); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.1998) (per curiam). Of particular relevance is the Eleventh Circuit’s recent decision in Gonzalez v. Secretary for Dep’t of Corrections, 366 F.3d 1253, 1281 (11th Cir.2004) (recognizing two narrow exceptions — for clerical errors and fraud — to the rule that a Rule 60(b) motion is “second or successive” and noting that “[a]n error of law, even one demonstrated by an intervening decision, does not fit either ... exception! ]”). Only the Second Circuit is of the view that generally “a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should ... be treated as any other motion under Rule 60(b).” Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir.2001).3 To the extent the Second Circuit believes that Rule 60(b)(6) motions are different from habeas applications because they “seek[ ] only to vacate the federal court judgment dismissing the habeas petition,” which is “merely a step along the way” to habeas relief, id. at 198-99, the dichotomy is a false one. Before AEDPA and since, the Supreme Court has made it clear that abuse of the writ may occur as readily in revisiting federal district court habeas decisions as in revisiting *193underlying state court decisions. See, e.g., Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2383, 135 L.Ed.2d 827 (1996) (AED-PA’s “new restrictions on successive [federal] petitions constitute ... a restraint on what is called in habeas corpus practice ‘abuse of the writ’ ”) (quotation omitted); McCleskey v. Zant, 499 U.S. 467, 492-93, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (recognizing that the “abuse of the writ” doctrine respects the finality of state court convictions by respecting the finality of a first federal habeas proceeding); Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 68 L.Ed. 999 (1924) (holding that while “the inflexible doctrine of res judica-ta” did not then apply in habeas proceedings, a petitioner “make[s] an abusive use of the writ of habeas corpus” when he attempts to use a second federal proceeding to revisit grounds raised in a first proceeding).
Contrary to petitioner’s suggestion and to the observations of some courts, this conclusion does not mean that a claimant who brings a Rule 60(b) motion for fraud on the court will have it re-characterized as a “second or successive habeas corpus application” under AEDPA. In the first place, it is not Rule 60(b) that empowers litigants to seek such relief. That authority stems from “the inherent power” of a federal court, which allows it “to vacate its own judgment upon proof that a fraud has been perpetrated upon the court.” Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Rule 60(b) acknowledges the point when it says that “[t]his rule does not limit the power of a court ... to set aside a judgment for fraud on the court.” Fed.R.Civ.P. 60(b). AEDPA nowhere purports to alter this “ ‘historic power of equity to set aside fraudulently begotten judgments,’ ” Chambers, 501 U.S. at 44, 111 S.Ct. 2123 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 88 L.Ed. 1250 (1944)), even assuming Congress has the power to do so.4
In the second place, the conclusion that a fraud-on-the-court claim generally should not be treated as a “successive” petition has much in common with the Supreme Court’s conclusion that a petitioner may bring a second petition if the first one was dismissed as unripe (Slack) or if the first petition was dismissed for failure to exhaust (Martinez-Villareal). Much of the historical debate over habeas corpus litigation has turned on the question of whether res judicata should apply to state court criminal proceedings or federal court habe-as corpus decisions — and those res judica-ta principles contain exceptions that are relevant here. Historically, res judicata did not apply to habeas petitions. See Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (invoking “the familiar principle that res judicata is inapplicable in habeas proceedings”); see also Sanders v. United States, 373 U.S. 1, 7-8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). But in the 1966 amendments to 28 U.S.C. § 2244(b), Congress adopted a “qualified application” of res judicata to habeas proceedings. See McCleskey, 499 U.S. at 467, 111 S.Ct. 1454 (noting that the amendment “establishes a ‘qualified application of the doctrine of res judicata’ ” to habeas proceedings by providing “that a federal court ‘need not entertain’ a second or subsequent habeas petition ‘unless’ the petitioner satisfies two conditions” — namely, a new ground for relief that was not deliberately withheld in earlier litigation) (quoting S.Rep. No. 1797, *19489th Cong., 2d Sess., 2 (1966), U.S.Code Cong. & Admin.News 1966, pp. 3663, 3664 and 28 U.S.C. § 2244(b) (1966)). And in enacting AEDPA in 1996, Congress imposed additional “restriction^] on successive petitions,” which again “constitute a modified res judicata rule.” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).
That Congress is trying to impose a “modified res judicata rule” on habeas corpus applications helps explain why some repeat habeas corpus petitions are “successive” and why others are not. The doctrine of res judicata has several well-established exceptions to the bar against subsequent actions, each of which accounts for the Supreme Court’s prior decisions in this area as well as the appropriate treatment of a fraud-on-the-court motion. Slack and Martinez-Villareal, for example, are consistent with the res judicata principle that a dismissal without prejudice does not bar a second action on the same claim. See Restatement of Judgments (Second) § 20(2) (“A valid and final personal judgment for the defendant, which rests on the prematurity of the action [as did the dismissal on ripeness grounds in Martinez-Villareal ], or on the plaintiffs failure to satisfy a precondition to suit [as did the dismissal on exhaustion grounds in Slack], does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.”); see also Martinez-Villareal, 523 U.S. at 645, 118 S.Ct. 1618 (“It is certain that respondent’s Ford claim would not be barred under any form of res judicata.”). Likewise, it has long been true that fraud on the court represents an exception to res judicata. See United States v. Beggerly, 524 U.S. 38, 46, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998) (holding that fraud on the court that is “sufficiently gross” “demand[s] a departure from rigid adherence to the doctrine of res judicata”) (quotation omitted); Chambers, 501 U.S. at 44, 111 S.Ct. 2123 (noting that the “historic power of equity to set aside fraudulently begotten judgments is necessary to the integrity of the courts”) (citations and quotations omitted). Absent more concrete direction from Congress, there is no reason to think that Congress meant to abandon this traditional understanding of res judicata at the same time that it was seeking to impose a “modified res judicata” rule on successive habeas corpus applications.
This background principle not only helps to explain these exceptions to the “successive” petition bar (and potentially others, though only those consistent with AED-PA), but it also shapes the rule I would follow today and explains why I would reaffirm the essence of our decision in McQueen, 99 F.3d at 1335. AEDPA announces a “modified res judicata” bar because it does permit “successive” petitions, but only in two discrete settings — new rules of constitutional law and claims of actual innocence — and, even then, only after specific requirements have been met. See 28 U.S.C. § 2244(b)(2). Res judicata has never had a general exception for revisiting decisions “on the merits,” and indeed the whole point of the doctrine is to establish finality once such decisions have been reached. As a matter of statutory interpretation, moreover, a statute that narrowly permits some successive petitions due to a change in the law cannot fairly be construed to permit other petitions due to changes in the law. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (“[I]t is an essential canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.
*195In the absence of strong indicia of congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.”) (quotation and citation omitted). Because AED-PA’s limitations on habeas relief trump otherwise applicable Federal Rules of Civil Procedure, as I have noted, the AEDPA requirements must trump a contrary motion under Rule 60(b)(6). In the end, the Rule simply may not give what AEDPA has taken away. See Pitchess v. Davis, 421 U.S. 482, 489, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975) (holding that “even if Rule 60(b) could be read to apply to this situation [ — reopening a judgment in a ha-beas case — ] it could not alter the statutory command”).
For the foregoing reasons, I would affirm.
. The majority asks “how the state of Tennessee, the federal courts, or the dissent here has any interest in upholding the district court’s ruling in this case.” But I submit that this is the wrong question. This court is not called upon to weigh the various "interests” involved here — only to enforce the plain language of AEDPA.
. The predecessor version of § 2244(b) read: When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States ... release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus on behalf of such a person need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ ....
28 U.S.C. § 2244(b) (1994) (emphasis added).
. The Second Circuit recently reaffirmed this "functional” approach in Harris v. United States, 367 F.3d 74, 77 (2d Cir.2004) (noting that the court held in Rodriguez that "relief under Rule 60(b) is available with respect to a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction”).
. The majority states that “the dissent offers no reason for permitting Rule 60(b)(3) motions based on fraud while prohibiting motions brought pursuant to the other provisions enumerated in Rule 60(b).” Not true. As explained above, the exception for fraud does not derive from the Rule itself but from a court's inherent power.