Ward v. Norris

MELLOY, Circuit Judge,

concurring in part and dissenting in part.

Although I agree with several aspects of the majority’s well-written opinion and concur in part III, I dissent as to part II. I would hold that Ward’s allegations do not present a “claim” but relate to a “defect in the integrity of the federal habeas proceedings,” Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), and that his allegations do not, “in substance, comprise a claim of ineffective or incompetent representation by federal habeas counsel.” Ante at 932. Federal Rule of Civil Procedure 60(b)(6) permits reopening in extraordinary circumstances, Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950), and I would direct the district court to enter a stay and hold an evidentiary hearing to afford it the opportunity to make a factual finding as to Ward’s competency. Nothing in AEDPA precludes federal evidentiary hearings on matters such as this; Ward has presented more than a colorable claim of present incompetence and of changed circumstances following the state trial court’s 1990 competency ruling; and ineffective or incompetent federal habeas counsel is not the only possible explanation for Ward’s failure to seek a stay at an earlier stage of the federal proceedings.

The U.S. Supreme Court stated in Gonzalez that if Rule 60(b) motions in § 2254 cases do not contain “claims,” district courts are to treat such motions as Rule 60(b) motions and not as successive habeas petitions. Gonzalez, 545 U.S. at 533, 125 S.Ct. 2641 (“When no ‘claim’ is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application.”). “ ‘[Cjlaim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment of conviction.” Id. at 530, 125 S.Ct. 2641. The Court noted that “[i]n most cases, determining whether a Rule 60(b) motion advances one or more ‘claims’ will be relatively simple.” Id. at 532, 125 S.Ct. 2641.

I agree that “[i]n most cases” the application of Gonzalez will be simple. Based on the facts of Gonzalez and several hypothetical discussed therein, the Court explained that, where a non-merits determination prevents a district court from reaching the merits of habeas petition, a Rule 60(b) motion seeking to revisit that non-merits decision is not to be treated as a successive petition. Id. at 533-35, 125 S.Ct. 2641. Such were the facts of Gonzalez, where the petitioner alleged in his Rule 60(b) motion that the district court had misapplied a federally created statute of limitations. In a footnote, the Court listed analogous situations, stating that a movant does not present a “claim” in a Rule 60(b) motion “when he merely asserts that a previous ruling which precluded a merits determination was in error — for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at 532 n. 4, 125 S.Ct. 2641 (emphasis added). The Court *939noted this distinction repeatedly in its opinion. See, e.g., id. at 534, 125 S.Ct. 2641 (“The motion here, like some other Rule 60(b) motions in § 2254 cases, confines itself not only to the first federal habeas petition, but to a nonmerits aspect of the first federal habeas proceeding.”); id. at 538, 125 S.Ct. 2641 (“A motion that, like petitioner’s, challenges only the District Court’s failure to reach the merits does not warrant such treatment, and can therefore be ruled upon by the District Court "without precertification by the Court of Appeals pursuant to § 2244(b)(3).”).

In cases where a district court actually reaches the merits of the claims in a habeas petitioner’s first petition, it often will be simple to identify impermissible successive petitions masking as Rule 60(b) motions based upon the relief the movant requests or the substance of the arguments the movant asserts. Direct challenges to a district court’s merits ruling will on their faces seek relief from a state court judgment and should be treated as successive petitions. Id. at 532, 125 S.Ct. 2641 (“[Alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.”). Less direct challenges, like (impermissible) ineffective assistance claims seeking to assert or reassert challenges to the state court conviction, often will identify claims or evidence that federal habeas counsel purportedly failed to assert or assert effectively. Such motions, while attempting to assert attorney error as a gateway argument, undoubtedly present “claims” that will require the district court to treat the motions as successive petitions. Id. at 532 n. 5,125 S.Ct. 2641 (“[A]n attack based on the movant’s own conduct, or his habeas counsel’s omissions ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.” (internal citation omitted)).

In a narrow class of cases, however, the question of how to characterize the Rule 60(b) motion will not be “relatively simple.” Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. Such cases, like the present case, will involve requests for relief from judgments that have already addressed the merits of underlying habeas petitions, but the requests for relief will be based upon something other than the substance of the merits ruling. The immediate relief a movant seeks in such a motion may be a request for a stay or some further proceeding in the district court rather than relief from the state court judgment. As in the present case, the arguments will assert that the district court judgment or underlying proceedings were somehow invalid or defective, but not due to any alleged error with the district court’s substantive analysis of the merits of the first habeas petition.

Determining how to characterize the Rule 60(b) motion in such cases is not simple because there are two reasonable ways to view such motions. On the one hand, the arguments in any such case will be merely first steps on a path towards the “ultimate” or “bottom-line” goal of asserting or reasserting arguments or evidence to challenge the state convictions. See, e.g., Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir.2005) (“[A]ll that matters is that [the petitioner] is seeking vindication of or advancing a claim by taking steps that lead inexorably to a merits-based attack on the prior dismissal of his habeas petition.” (internal quotations and alterations omitted)). A focus on this “ultimate” or “bottom-line” goal seemingly would result in almost universal characterization of Rule 60(b) motions as successive petitions. The state asserts this argument in the present appeal, characterizing Ward’s mo*940tion in terms of what he might “ultimately seek” and asserting categorically that Rule 60(b) motions must be deemed successive petitions in all cases where a district court has already ruled on the merits, regardless of the nature of the movant’s arguments.

On the other hand, it is reasonable to look at the immediate relief a movant seeks rather than focusing only on the question of whether the movant eventually will seek to challenge a state court judgment. See, e.g., Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir.2001) (“[Wjhile [the Rule 60(b) motion] is undoubtedly a step on the road to the ultimate objective of invalidating the judgment of conviction, it does not seek that relief. It seeks only to vacate the federal court judgment dismissing the habeas petition.”); see also Mitchell v. Rees, 261 Fed.Appx. 825, 829 (6th Cir.2008) (unpublished) (“[T]he focus of the inquiry is not on whether the court reached the merits of the original petition but on whether the Rule 60(b) motion contains a claim.”); Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir.2007) (“Petitioner’s motion does not assert or reassert allegations of error in his state convictions. Thus, Petitioner’s 60(b) motion is not a second or successive habeas petition, and the district court has jurisdiction to consider the motion and to decide its merits.”); Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.2004) (holding that a district court may address a Rule 60(b) motion that challenges the proceedings surrounding an earlier habeas judgment rather than the underlying state conviction itself). For this narrow class of cases that are not “relatively simple,” then, it is necessary to determine whether it is proper, under Gonzalez, to look only at the immediate relief a Rule 60(b) movant seeks or whether it is proper to take an expanded view of the movant’s goals and look several steps down the road at the movant’s expected, eventual attempt to assert or reassert a challenge to his state conviction. In the present case, the Majority appears to have adopted the state’s preferred reading of Gonzalez, stating:

“Ward’s ... motions were improper because they were not based on a procedural defect, but rather attacked previous habeas counsel’s omissions and asked for a second opportunity to have the merits determined favorably. Ward’s ... motion ultimately seeks to advance, through new counsel, new claims or claims that were previously considered and dismissed on the merits.”

Ante at 935 (emphasis added). Other circuits have adopted this view. See, e.g., Post, 422 F.3d at 424-25. I would hold that this position goes too far in limiting district courts from entertaining Rule 60(b) motions.

The Majority’s argument, if accepted, would establish an analytical framework inconsistent with Gonzalez by precluding consideration even of Rule 60(b) motions analogous to one of the examples that the Court cited in Gonzalez. In Gonzalez, the Court referred to “[f]raud on the federal habeas court” as a qualifying defect and cited Rodriguez where a district court had ruled on the merits of a habeas petition and where the Second Circuit subsequently held that the Rule 60(b) motion was not to be treated as a successive petition. Gonzalez, 545 U.S. at 532 n. 5, 125 S.Ct. 2641 (citing Rodriguez, 252 F.3d 191). In making its point, the Court quoted Rodriguez, characterizing the fraud as “related to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial.” Id. (alteration omitted). In effect, the fraud on the court impugned the integrity or validity of the district court’s judgment, opening the door to Rule 60(b) review, even though the practical effect of such a holding, necessarily, could lead to the potential assertion or reasser*941tion of substantive arguments at some later stage.

In Rodriguez, the Second Circuit had described the tension between the above-described viewpoints that would consider a movant’s immediate claim for relief, on the one hand, and the “ultimate” objective of all habeas petitioners, on the other. The court stated:

The fact that the Rule 60(b) motion contemplates ultimately the vacating of the conviction is shared with every motion the petitioner might make in the course of pursuing his habeas — motions to compel disclosure or quash the respondent’s discovery demands, motions for extension of time to answer the adversary’s motion, motions to be provided with legal assistance, motions for summary rejection of the respondent’s contentions. All such motions, like the motion under Rule 60(b), seek to advance the ultimate objective of vacating the criminal conviction. But each seeks relief that is merely a step along the ivay. In our view, neither these motions, nor the motion under Rule 60(b) that seeks to vacate the dismissal of the habeas petition, should be deemed a second or successive petition within the meaning of 28 U.S.C. § 2244(b).

Rodriguez, 252 F.3d at 198-99 (emphasis added).

By citing Rodriguez and describing fraud on the court as a qualifying “defect,” the Court in Gonzalez showed that a “defect in the integrity of the federal habeas proceeding! ]” need not be limited solely to cases where alleged errors prevent district courts from reaching the merits of petitioners’ underlying claims for habeas relief. Gonzalez, 545 U.S. at 532 & n. 5, 125 S.Ct. 2641. Rather, the Court recognized the authority of district courts to entertain Rule 60(b) motions as necessary to police their own proceedings and ensure the integrity and validity of their own rulings. The expanded view of relief sought by a movant, i.e., the state’s view that it is proper to focus on the omnipresent goal of all habeas petitioners to, eventually, obtain relief from a state court judgment through a second merit-based determination in federal court, cannot be reconciled with the Court’s use of the “fraud-on-the-court” example. In a case like Rodriguez, the petitioner has already received a ruling on the merits, albeit from a flawed proceeding, and the “ultimate” effect of the Rule 60(b) motion would be a return to district court for a second merits ruling. By invoking the fraud example, the Court necessarily focused the inquiry on the more immediate relief sought rather than the ultimate or expanded goal of the petitioner/movant.

In his motion, Ward does not seek to revisit a merits ruling or attack a state court judgment. Rather, he alleges his incompetence amounts to a defect in the federal proceedings. The relief he seeks is a stay pending restoration of competence, and regardless of whether he is actually entitled to this scope of relief, it is not possible to characterize his motion as containing claims without adopting an expanded view of his overall goals. I would hold that his motion does not contain a claim.

Although I disagree with the majority as to the necessity of focusing on Ward’s presumed ultimate goal rather than his immediate claim for relief, I agree that it is necessary to consider whether his argument is merely an ineffective assistance of counsel argument masking as an attack on a defect in the proceedings. It will often be appropriate to characterize alleged defects as allegations of attorney error or waiver by the party. I discern no reason for doing so, however, where such characterization is not compelled by the facts. In the context of Rule 60(b) motions for relief from federal judgments, we are not directly concerned with issues of federal*942ism, and, as per Gonzalez, the restrictive aspects of AEDPA review only come into play if we first conclude the motion contains a claim. Given this context, if the unusual facts of a case present a scenario in which a district court’s Rule 60(b) review might be appropriate to prevent an injustice or correct a defective proceeding, it would seem advisable to leave open the possibility of having the district court address the motion.

Relief in accordance with Rule 60(b) is rare in all contexts. As the Court noted in Gonzalez, “several characteristics of a Rule 60(b) motion limit the friction between the Rule and the successive-petition prohibitions of AEDPA, ensuring that ... harmonization of the two will not expose federal courts to an avalanche of frivolous postjudgment motions.” Gonzalez, 545 U.S. at 534-35, 125 S.Ct. 2641. As such, I would not unnecessarily limit Rule 60(b) relief by too readily characterizing a movant’s arguments as ineffective assistance claims.

Importantly, Gonzalez permits careful scrutiny of petitioners’ motions to assess whether the arguments are permissible or whether they are, in reality, ineffective assistance claims. In the same footnote that contained the cite to Rodriguez, the Court explained that “ordinarily” a Rule 60(b) argument “based on the movant’s own conduct, or his habeas counsel’s omissions ... does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.” Gonzalez, 545 U.S. at 532 n. 5, 125 S.Ct. 2641. This general statement follows naturally from the unobjectionable proposition that a party’s actions or the actions of a party’s attorney, while providing great influence over the direction of proceedings, ordinarily do not impact the integrity of those proceedings or the validity of judgments rendered therein. Such influences, however, are not always benign, and it is not necessarily appropriate to characterize the actions of an incompetent petitioner as the actions of a party. See Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 809-15 (9th Cir.2003) (noting the inability of incompetent prisoners to communicate with their attorneys, relay facts known only to themselves, or effectively waive rights); see also Holmes v. Buss, 506 F.3d 576, 578 (7th Cir.2007) (characterizing Rohan as resting at least in part on the fact that “a waiver of a legal right (concretely, the right to seek post-conviction relief) must, to be effective, be knowing, implying mental competence”). By using the hedging language “ordinarily,” the Court recognized the possibility that situations could arise where a party’s or counsel’s conduct might not preclude a district court from entertaining a Rule 60(b) motion. The Court presumably used this language to avoid creating excessive dicta purporting to establish a bright-line rule as to possible “defects” that were unrelated to the facts of Gonzalez.

Regarding the characterization of Ward’s motion in particular, the present case is by no means “ordinary,” and I do not read the Court’s footnote as precluding further district court proceedings. Ward presents compelling evidence showing a deterioration of his mental condition following the 1990 competency hearing (the only arguably complete assessment of his competency), culminating in delusional beliefs, a recalcitrant attitude, and a refusal to cooperate with his attorneys or mental health professionals. As noted by the majority, Ward’s previous counsel stated to the district court in a 2004 motion that “it was obvious, even from a layperson’s perspective, that Mr. Ward was delusional. His paranoia is severe to the point that counsel has difficulty engaging in meaningful dialogue with him about his case.” The Majority infers from this disclosure and from other evidence at all stages of state *943and federal proceedings that Ward’s counsel was ineffective in not seeking a stay in the district court and that a grant of a stay or any relief is therefore barred by 28 U.S.C. § 22640).

If Ward’s mental state was so obviously reduced, however, and if the district court had notice of this fact, it is not clear to me that it is wholly appropriate to lay responsibility for any resulting defect solely at the feet of Ward or his counsel. I would hold that the district court’s responsibility to maintain the integrity of the proceedings and validity of its judgments imposes on the district court, in the face of such facts, a duty to suspend proceedings and ensure competency. See Godinez v. Moran, 509 U.S. 389, 401 n. 13, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (“[A] competency determination is necessary only when a court has reason to doubt the defendant’s competence.”). The finality of the death penalty and the importance of airing all evidence and issues completely in a first habeas petition place a heightened responsibility on district courts in such circumstances, and I would hold that a petitioner’s competency is required in habeas proceedings.10 See Rohan, 334 F.3d at 811-13 (explaining a right to competency in federal habeas proceedings, and noting the prejudice that may ensue from allowing the critical initial habeas proceeding to pass without meaningful participation by the prisoner); Mata v. Johnson, 210 F.3d 324, 331 (5th Cir.2000) (enforcing a federal habeas competency requirement and remanding for further proceedings where the evidence demonstrated that a habeas petitioner had a thirty-year history of documented mental health problems, but the district court had denied habeas relief without conducting a competency hearing).

Accordingly, I would treat the motion as a Rule 60(b) motion rather than as a successive petition, and I would remand for further proceedings.

. Clayton v. Roper, 515 F.3d 784, 790 n. 2 (8th Cir.), cert. denied, - U.S. -, 129 S.Ct. 507, 172 L.Ed.2d 373 (2008), our court noted that we have not yet considered whether a defendants’ competency is required in habeas proceedings. I would hold such a requirement exists and that the "test should be whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in relation to his case is necessary to enable it to be adequately presented.” Holmes, 506 F.3d at 578-79 (discussing Rohan, and describing a generalized test for competency sufficient to apply in different contexts).