United States Court of Appeals
For the First Circuit
No. 01-2411
JAMES J. RODWELL,
Petitioner, Appellant,
v.
PETER A. PEPE, JR., ETC.,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Kevin J. Reddington for petitioner.
Dean A. Mazzone, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for respondent.
April 1, 2003
SELYA, Circuit Judge. The case at bar presents a
question of first impression in this circuit regarding the
circumstances under which a state prisoner may use Rule 60(b) of
the Federal Rules of Civil Procedure as a vehicle for resurrecting
a previously dismissed habeas petition. There are three principal
schools of thought on this controversial subject. Some courts have
held that Rule 60(b) remains fully velivolant in the habeas
context. Others have held that the restrictions imposed on the
filing of second or successive applications for habeas relief by
the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996,
Pub. L. No. 104-132, §§ 101-107, 110 Stat. 1214, 1217-26 (codified
as amended in 28 U.S.C. §§ 2244, 2253-2255, 2261-2266 (2000)), make
Rule 60(b) unavailable to habeas petitioners. A third camp
consists of courts that, with slight variations, advocate a course
somewhere between these extremes.
We align ourselves with the third camp. AEDPA's
restrictions on the filing of second or successive habeas petitions
make it implausible to believe that Congress wanted Rule 60(b) to
operate under full throttle in the habeas context. But even though
state prisoners seeking habeas relief should not be able to use
Rule 60(b) as a means of avoiding AEDPA's carefully calibrated
limitations on habeas petitions, we see no justification for
throwing out the baby with the bath water. Consequently, we hold
that a Rule 60(b) motion should be treated as a second or
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successive habeas petition if — and only if — the factual predicate
set forth in support of the motion constitutes a direct challenge
to the constitutionality of the underlying conviction. In other
cases — cases in which the factual predicate set forth in support
of the motion attacks only the manner in which the earlier habeas
judgment has been procured — the motion may be adjudicated under
the jurisprudence of Rule 60(b).
In this instance, the petitioner's Rule 60(b) motion is
the functional equivalent of a new habeas petition. Because that
triggers the AEDPA's requirements for second or successive habeas
petitions, we affirm the district court's order of dismissal.
I. TRAVEL OF THE CASE
Since this appeal turns on a question of procedure, the
travel of the case comprises the relevant background.
In November of 1981, petitioner-appellant James J.
Rodwell stood trial in a Massachusetts state court on a number of
charges, including first degree murder, armed robbery, and unlawful
carriage of a firearm. One of the key witnesses against him was a
fellow inmate, David Nagle, who testified that, while awaiting
trial, the petitioner had admitted to the murder and furnished many
details. The jury found the petitioner guilty. The court
thereafter imposed a mandatory term of life imprisonment on the
murder charge and lesser sentences on the other counts.
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In 1983, the petitioner filed an unsuccessful motion for
a new trial. Two years later, the Massachusetts Supreme Judicial
Court (SJC) affirmed both his conviction and the denial of his new
trial motion. See Commonwealth v. Rodwell, 477 N.E.2d 385 (Mass.
1985). The following year, the petitioner filed another
unsuccessful motion for a new trial. This time, the SJC denied his
application for further appellate review.
Having exhausted his state remedies, the petitioner
sought a writ of habeas corpus in the United States District Court
for the District of Massachusetts. He named, as the respondent, a
state correctional official.1 His petition alleged that Nagle was,
in effect, an undercover government agent while he and the
petitioner were incarcerated together; that Nagle's inquiries about
the crime amounted to a post-indictment state interrogation without
his lawyer present; that Nagle's testimony should have been
excluded as procured in violation of the Sixth Amendment; and that,
therefore, his conviction could not pass constitutional muster.
The district court denied the petition. Rodwell v. Fair, No. 86-
2455, slip op. (D. Mass. Apr. 13, 1987) (unpublished). We affirmed
the denial, holding that the petitioner had not shown "cause" for
failing to present evidence in support of his Sixth Amendment claim
1
The original respondent, Michael Fair, is no longer in
office. His successor, Peter A. Pepe, Jr., has been substituted by
operation of law. See Fed. R. Civ. P. 25(d)(1); Fed. R. App. P.
43(c)(2).
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in the state court. Rodwell v. Fair, 834 F.2d 240, 241-42 (1st
Cir. 1987) (per curiam).
The petitioner was not deterred. Following a lull, he
filed three more motions for a new trial in the state courts. Each
of these was denied, and further appeals in the state system proved
fruitless.
At that juncture, the petitioner again eyed a federal
forum — but an obstacle loomed. The AEDPA had taken effect and,
under its terms, state prisoners cannot file second or successive
federal habeas petitions as a matter of right. See 28 U.S.C. §
2244(b)(3). Rather, a state prisoner who desires to file a second
or successive habeas petition must secure pre-clearance from the
court of appeals. See id. § 2244(b)(3)(A). On October 4, 1999,
the petitioner invoked this provision and requested permission to
file a second habeas corpus petition.
A panel of this court carefully considered his
application and concluded that the petitioner had failed to produce
any new facts, sufficient to show his actual innocence clearly and
convincingly, which could not have been discovered through the
exercise of due diligence at or before the time when he filed his
first federal habeas petition. Rodwell v. Pepe, No. 99-2109, slip
op. at 1 (1st Cir. Nov. 4, 1999) (unpublished). Consequently, the
panel refused the petitioner's request to file a second federal
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habeas petition. Id. Under the AEDPA, this decision was final and
unappealable. See 28 U.S.C. § 2244(b)(3)(E).
Attempting to find a crack in the wall that Congress had
erected to guard against the profligate filing of successive
applications for post-conviction relief, the petitioner repaired to
the district court. On July 6, 2001, he filed a motion to reopen
his original federal habeas case. Asserting that the prosecution
had suppressed "exculpatory evidence" that shed doubt on Nagle's
status and that "it was not until well after his conviction, direct
appeal and habeas denial that th[is] significant impeachment
information was unearthed," he asked the district court to reverse
its earlier denial of habeas relief.
The district court, Rodwell v. Pepe, 183 F. Supp. 2d 129,
133 (D. Mass. 2001), reasonably construed the petitioner's motion
as one brought pursuant to Federal Rule of Civil Procedure 60(b)2
2
The rule states in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party . . . from a final judgment . . . for the
following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud . .
. , misrepresentation, or other misconduct by an adverse
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, . . . or it is
no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b). Motions under this rule must be made
"within a reasonable time, and for reasons (1), (2), and (3) not
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— a characterization that the petitioner enthusiastically embraced.
Turning to the question of whether a Rule 60(b) motion seeking
vacation of a judgment denying habeas relief should be treated as
a second or successive habeas petition for AEDPA purposes, the
district court answered that question affirmatively. Id. at 133-
34. On that basis, the court ruled that it was without
jurisdiction to hear the motion. Id. at 134-35 (citing 28 U.S.C.
§ 2244(b)(3)). In a subsequent order, the court, recognizing that
the pertinent authorities were in some disarray, granted a
certificate of appealability (COA), see 28 U.S.C. § 2253(c), thus
allowing this appeal to proceed.
II. ANALYSIS
The COA poses a single question: does a motion for
relief presented pursuant to Rule 60(b) constitute a second or
subsequent petition under the AEDPA? Despite its narrowness, this
question has significant implications for habeas procedure — and
the courts of appeals that heretofore have grappled with it have
reached divergent conclusions.
We begin by addressing the certified question. After
answering it, we proceed to apply the answer to the case at bar.
more than one year after the judgment . . . was entered or taken."
Id.
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A. Determining the Rule of Law.
As said, the decisions elsewhere have yielded three lines
of cases. We turn first to the polar extremes.
The Second Circuit has ruled categorically that "a motion
under Rule 60(b) to vacate a judgment denying habeas is not a
second or successive habeas petition and should therefore be
treated as any other motion under Rule 60(b)." Rodriguez v.
Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). The court reasoned
that a Rule 60(b) motion does not seek the relief requested by a
habeas petition, but, rather, "seeks only to vacate the federal
court judgment dismissing the habeas petition." Id. That is
"merely a step along the way" to habeas relief. Id. at 199.
Consequently, affording Rule 60(b) its customary scope does not
offend the AEDPA. Id.
At the other end of the spectrum, several courts have
concluded that a Rule 60(b) motion in a habeas case must always be
treated as a second or successive habeas petition under the AEDPA.
See, e.g., Mobley v. Head, 306 F.3d 1096, 1096 (11th Cir. 2002);
Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (per curiam);
McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996). The
Eleventh Circuit is the leading proponent of this proposition. In
that court's view, according Rule 60(b) its customary scope in
habeas cases would allow prisoners to cloak collateral attacks in
the raiment of motions for relief from judgment under Rule 60(b)
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and thereby evade the limitations that Congress so painstakingly
crafted in the AEDPA. See Mobley, 306 F.3d at 1096; Felker v.
Turpin, 101 F.3d 657, 661 (11th Cir. 1996) (per curiam). Based on
this rationale, the court concluded that allowing habeas
petitioners access to Rule 60(b) would contravene the very
congressional intent that motivated passage of the AEDPA. See
Felker, 101 F.3d at 661 ("Rule 60(b) cannot be used to circumvent
restraints on successive habeas petitions. That was true before
the [AEDPA] was enacted, and it is equally true, if not more so,
under the new act.").
Neither of these categorical approaches is watertight.
On the one hand, the permissive approach taken by the Rodriguez
court seems to elevate form over substance. In the process, it
opens the door for easy subversion of the AEDPA's restrictions
(and, thus, frustrates known congressional intent). On the other
hand, the rigid rule adopted in cases such as Mobley and Felker
seems to sweep too broadly. That rule makes no allowance for
circumstances, arising in the course of a federal habeas
proceeding, which might justify setting aside a judgment denying
habeas relief although not addressing the underlying criminal
conviction. Mistake and fraud are examples of such a circumstance.
Say, for instance, that a federal judge dismisses a habeas petition
because the petitioner fails to respond to a show-cause order — and
a subsequent Rule 60(b) motion alleges that the show-cause order
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was never served on the petitioner. Or say, for instance, that the
federal court bases an order of dismissal on the representations of
a state prosecutor — and a subsequent Rule 60(b) motion alleges
that the representations made to the habeas court were knowingly
false. In each situation, the motion challenges only the etiology
of the habeas judgment itself. Accordingly, it makes sense to
consider the motion as a Rule 60(b) motion simpliciter rather than
as a second or successive habeas petition.
Given these concerns, we are reluctant to subscribe to a
"one size fits all" taxonomy for the handling of Rule 60(b) motions
in the habeas context. The inquiry must proceed case by case. The
court must examine the factual predicate set forth in support of a
particular motion. When the motion's factual predicate deals
primarily with the constitutionality of the underlying state
conviction or sentence, then the motion should be treated as a
second or successive habeas petition. This situation should be
distinguished from one in which the motion's factual predicate
deals primarily with some irregularity or procedural defect in the
procurement of the judgment denying habeas relief. That is the
classic function of a Rule 60(b) motion, see, e.g., Teamsters,
Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co.,
953 F.2d 17, 19-20 (1st Cir. 1992), and such a motion should be
treated within the usual confines of Rule 60(b).
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The approach that we favor is pragmatic in nature. Under
it, the answer to the question of what law applies will depend not
on the label affixed to a particular motion but on its essence.
This approach is exemplified by the Seventh Circuit's opinion in
Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002). The Dunlap court
warned against permitting facile circumvention of the AEDPA's
limitations on successive collateral attacks by the simple
expedient of characterizing a habeas petition as a motion under
Rule 60(b). Id. at 875. "Otherwise, the AEDPA's limitations on
collateral attack would be set at naught." Id. But the court
acknowledged that "Rule 60(b) has a very broad scope and it is easy
to imagine cases in which allowing a prisoner to file a motion
under it would pose no risk of conflict with the limitations that
AEDPA places on successive collateral attacks . . . ." Id. at 875-
76. Thus, the court signaled that it would allow the use of Rule
60(b) in habeas cases as long as a particular motion did not
encroach upon "territory occupied by AEDPA." Id. at 876.
Other courts also have taken this approach (or variations
of it). See Thompson v. Calderon, 151 F.3d 918, 921 & n.3 (9th
Cir. 1998) (en banc) (acknowledging that a Rule 60(b) motion
ordinarily "should be treated as a successive habeas petition," but
eschewing "a bright line rule equating all Rule 60(b) motions with
successive habeas petitions"); United States v. Rich, 141 F.3d 550,
551 (5th Cir. 1998) (indicating a willingness to consider whether
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a Rule 60(b) motion "is the functional equivalent of a [habeas
petition]"); Hunt v. Nuth, 57 F.3d 1327, 1339 (4th Cir. 1995)
(treating a Rule 60(b) motion as a successive habeas petition
because the claims raised "were equivalent to additional habeas
claims"); Guinan v. Delo, 5 F.3d 313, 316 (8th Cir. 1993) (stating
that "a Rule 60(b) motion seeking relief from the denial of a
habeas petition [is] properly treated as a second habeas petition,"
but leaving open "the possibility that a habeas case may present
circumstances in which a Rule 60(b) motion might properly be
examined as such"); see also Mobley, 306 F.3d at 1101 (Tjoflat, J.,
dissenting) (pointing out that "a second or successive habeas
corpus petition . . . is meant to remedy constitutional violations
. . . while a Rule 60(b) motion is designed to cure procedural
violations"). We join with the overall approach of these courts
and hold that a district judge should treat a Rule 60(b) motion in
a habeas case as a second or successive habeas petition whenever
the motion threatens to encroach upon precincts patrolled by the
AEDPA, that is, whenever the factual predicate set forth in support
of the motion constitutes a direct challenge to the
constitutionality of the underlying conviction. In contrast, if
the factual predicate of the motion challenges only the procurement
of the federal habeas judgment, it may be adjudicated under Rule
60(b).
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We do not pretend that this test will operate with
mathematical precision. One can conjure up examples that defy easy
placement along the continuum that we envision. But words have
their limitations, and no bright-line rule can entirely capture the
idea, reflected in our holding, that a Rule 60(b) motion should be
considered and adjudicated as a second or successive habeas
petition so long as it is the functional and practical equivalent
of an application for habeas relief. We are confident that, given
this general guidance, the district courts will be able to sift
wheat from chaff without undue difficulty.
B. Applying the Holding.
We next apply this holding to the petitioner's motion.
That motion presents a direct challenge to the constitutionality of
his state court conviction. It asks the district court for an
opportunity to offer facts that (in the petitioner's view) will
prove that his conviction was "constitutionally infirm." Such a
claim is a paradigmatic habeas claim. It is, therefore, subject to
AEDPA's restrictions on the filing of second or successive habeas
petitions, rather than to the conventional jurisprudence of Rule
60(b).
In an effort to alter this conclusion, the petitioner
argues that the evidence upon which he now relies was improperly
withheld during earlier proceedings (including the original habeas
proceeding), thus constituting an "ongoing fraud" that challenges
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the integrity of the habeas judgment itself. This argument is
clever, but flawed. For one thing, it seeks to accomplish an end
run around the strict limitations that the AEDPA imposes upon the
filing of second or successive habeas petitions. For another
thing, it runs afoul of the law of the case doctrine. After all,
the petitioner presented essentially the same material to this
court in his unsuccessful effort to secure permission to file a
second habeas petition. We ruled then that the petitioner was
aware of much of the evidence in question at the time of his first
habeas petition yet "fail[ed] to develop any argument that the
remaining information was both unobtainable and probative." The
law of the case doctrine ordinarily calls for us to honor our
previous assessment, see Ellis v. United States, 313 F.3d 636, 646-
47 (1st Cir. 2002), and there is no valid reason to do otherwise
here.
To cinch matters, the petitioner concedes that, on the
record then before it, the district court committed no error in its
handling of the original habeas proceeding such as would undermine
the procurement of the judgment entered therein. The most that can
be said for his present position is that the district court, if it
had the benefit of a more elaborate presentation of the facts
concerning the Faustian bargain between Nagle and the prosecutor,
would have ruled differently in the habeas case and set aside the
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underlying conviction. So viewed, the motion before us is the
practical equivalent of a second or successive habeas petition.
We add a coda. We acknowledge that, despite the
petitioner's numerous attempts to expose the full extent of the
relationship between Nagle and the state prosecutor, no court has
exhaustively addressed that claim. Some of these lost
opportunities may fairly be attributed to procedural errors on the
petitioner's part. Others, however, are linked to the stringent
filters that channel consideration of habeas corpus claims under
the AEDPA. This regimen, though harsh, dovetails with Congress's
intent. See H.R. Rep. No. 104-23 (1995), 1995 WL 56412, at *8
(explaining that the AEDPA is "designed to curb the abuse of the
habeas corpus process, and particularly to address the problem of
delay and repetitive litigation"). Section 2244(b)(3) establishes
a rigorous gatekeeping arrangement through which second or
successive habeas applications must pass, and it was the
petitioner's inability to open that gate that kept the district
court from probing more deeply into the circumstances surrounding
Nagle's testimony. This may seem overly restrictive — but any
complaint about the inadequacy of the mechanisms available for
judicial review in habeas cases ordinarily must be addressed to the
Congress, not to the courts. See Felker v. Turpin, 518 U.S. 651,
664 (1996) (recognizing that "judgments about the proper scope of
the [habeas] writ are normally for Congress to make"); see also
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United States v. Victoria-Peguero, 920 F.2d 77, 81 (1st Cir. 1990)
(stating this court's resolve to refrain from "substitut[ing]
judicial judgment for legislative judgment or . . . plac[ing]
limitations on [statutory language] which were not envisioned by
Congress").
III. CONCLUSION
We need go no further. We hold that the lower court
appropriately treated the petitioner's Rule 60(b) motion as a
second or successive habeas petition. Therefore, the court had no
choice but to dismiss the motion for lack of subject matter
jurisdiction. See 28 U.S.C. § 2244(b)(3).
Affirmed.
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