[ Scalia ]
[ Breyer ]
[ Stevens ]
AURELIO O. GONZALEZ, PETITIONER v.
CROSBY, Jr., SECRETARY, FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 23, 2005]
Justice Stevens, with whom Justice Souter joins, dissenting.
The most significant aspect of todays decision is the Courts unanimous rejection of the view that all postjudgment motions under Federal Rule of Civil Procedure 60(b) except those alleging fraud under Rule 60(b)(3) should be treated as second or successive habeas corpus petitions. Not only do I agree with that holding, I believe that we should have more promptly made clear that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Rule 60(b) can coexist in harmony. See AbdurRahman v. Bell, 537 U.S. 88, 90 (2002) (Stevens, J., dissenting from dismissal of certiorari as improvidently granted).
As the Court recognizes, whether a Rule 60(b) motion may proceed in the habeas context depends on the nature of the relief the motion seeks. See ante, at 8.1 Given the substance of petitioners motion, I agree with the Court that this was a true Rule 60(b) motion and that the District Court and the Court of Appeals therefore erred in treating it as a successive habeas petition. And while I also agree with much of the Courts reasoning in Parts I and II of its opinion, I believe the Court goes too far in commenting on issues that are not directly before us and that have not been fully briefed. See, e.g., ante, at 67 (discussing various court of appeals cases). My main disagreement, however, pertains to Part III of the Courts opinion.
The Court reaches beyond the question on which we granted certiorari (whether petitioners Rule 60(b) motion should be treated as a successive habeas petition) and adjudicates the merits of that motion. In my judgment, however, correct procedure requires that the merits of the Rule 60(b) motion be addressed in the first instance by the District Court. AbdurRahman, 537 U.S., at 97 (Stevens, J., dissenting). A district court considering a Rule 60(b) motion will often take into account a variety of factors in addition to the specific ground given for reopening the judgment. These factors include the diligence of the movant, the probable merit of the movants underlying claims, the opposing partys reliance interests in the finality of the judgment, and other equitable considerations. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2857 (2d ed. 1995 and Supp. 2004) see ibid. (noting that appellate courts will reverse a district courts decision only for an abuse of discretion); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 233234 (1995) (Rule 60(b) reflects and confirms the courts own inherent and discretionary power, firmly established in English practice long before the foundation of our Republic, to set aside a judgment whose enforcement would work inequity (citation omitted)). In light of the equitable, often fact-intensive nature of the Rule 60(b) inquiry, it is inappropriate for an appellate court to undertake it in the first instance. This is especially so in this case, in which both the briefing and the record before us are insufficient with regard to the merits issue.
Orderly procedure aside, the Courts truncated analysis is unsatisfactory. At least in some circumstances, a supervening change in AEDPA procedural law can be the kind of extraordinary circumstanc[e], Ackermann v. United States, 340 U.S. 193, 199 (1950), that constitutes a reason justifying relief from the operation of the judgment within the meaning of Rule 60(b)(6). In this case, the District Court dismissed petitioners habeas petition as time barred after concluding that his second motion for state postconviction relief did not toll AEDPAs statute of limitations. See 28 U.S.C. § 2244(d). After that judgment became final, however, we decided Artuz v. Bennett, 531 U.S. 4 (2000), which made clear that the District Courts ruling on tolling was erroneous and that the habeas petition should therefore not have been dismissed.2
Unfortunately, the Court underestimates the significance of the fact that petitioner was effectively shut out of federal courtwithout any adjudication of the merits of his claimsbecause of a procedural ruling that was later shown to be flatly mistaken. As we have stressed, [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); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000) (The writ of habeas corpus plays a vital role in protecting constitutional rights). When a habeas petition has been dismissed on a clearly defective procedural ground, the State can hardly claim a legitimate interest in the finality of that judgment. Indeed, the State has experienced a windfall, while the state prisoner has been deprivedcontrary to congressional intentof his valuable right to one full round of federal habeas review.
While this type of supervening change
in procedural law may not alone warrant the reopening of a
habeas judgment, there may be special factors that allow a
prisoner to satisfy the high standard of Rule 60(b)(6). For
instance, when a prisoner has shown reasonable diligence in
seeking relief based on a change in procedural law, and when
that prisoner can show that there is probable merit to his
underlying claims, it would be well in keeping with a district
courts discretion under Rule 60(b)(6) for that court to
reopen the habeas judgment and give the prisoner the one fair
shot at habeas review that Congress intended that he have.
After all, we have consistently recognized that Rule 60(b)(6)
provides courts with authority adequate to enable
them to vacate judgments whenever such action is appropriate
to accomplish justice.
The Court relies on petitioners supposed lack of diligence in pursuing review of the District Courts initial statute-of-limitations ruling. See ante, at 12. In fact, petitioner did appeal the District Courts ruling, which the Court of Appeals correctly interpreted as a request for a certificate of appealability (COA).5 As for petitioners failure to seek rehearing or certiorari, he alleged in his Rule 60(b) motion, App. 16, and again in his reply brief, that he filed a timely petition for rehearing on April 18, 2000, but that the clerk of the Court of Appeals returned the motion unfiled, explaining, erroneously, that his appeal was dismissed and closed on October 28, 1999. Reply Brief for Petitioner 13 (emphasis deleted). According to petitioner, [t]his official misinformation carried the weight of a court decision and was enough to convince a pro se litigant (and some lawyers) that the 90-day window for filing a certiorari petition expired, as well. Ibid. The State, however, represents that petitioner erroneously filed the petition for rehearing under the case number of an earlier, dismissed appeal. Brief for Respondent 4. I do not know how to resolve these allegations, but this only highlights the propriety of a remand. Even on the States version of events, petitioners attempt at filing for rehearing is proof of diligence on his part.
Putting these allegations aside, the Courts reasoning is too parsimonious. While petitioner could have shown even greater diligence by seeking rehearing for a second time and then filing for certiorari, we have never held pro se prisoners to the standards of counseled litigants. See, e.g., Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Indeed, petitioners situation contrasts dramatically with that of the movant in the case the Court relies on, Ackermann v. United States, 340 U.S. 193 (1950). See ante, at 13. In upholding the denial of Rule 60(b)(6) relief in Ackermann, the Court put great emphasis on the fact that the movant had the benefit of paid counsel and that, for much of the relevant period, he was not detained, but rather enjoyed freedom of movement and action, 340 U.S., at 201.6 In any event, I believe that our rules governing prisoner litigation should favor a policy of repose rather than a policy that encourages multiple filings with a low probability of success.7
Accordingly, I agree with the Courts conclusion that petitioner filed a true Rule 60(b) motion. I respectfully dissent, however, because of the Courts decision to rule on the merits of the motion in the first instance.
1. Under the First Circuits useful formulation, which was invoked by Judge Tjoflats dissenting opinion below, [w]hen the motions 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 motions factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b). Rodwell v. Pepe, 324 F.3d 66, 70 (2003) (citation omitted); see also 366 F.3d 1253, 1297 (CA 11 2004) (Tjoflat, J., opinion concurring in part and dissenting in part).
2. Although the State contests this point
in a footnote, see Brief for Respondent 4041, n. 33, the
Court rightly assumes that the District Courts decision
was incorrect. See ante, at 11, and n. 8. If any doubt
remains, it should be resolved by the District Court in the
3. While Rule 60(b)(6) contains no specific time limitation on filing, it is worth noting that petitioner filed his motion within the strict 1-year limitation that applies to motions under Rules 60(b)(1)(3).
4. It is also worth noting that Artuz v. Bennett, 531 U.S. 4 (2000), was decided only seven months after petitioners habeas judgment became final. In cases where significant time has elapsed between a habeas judgment and the relevant change in procedural law, it would be within a district courts discretion to leave such a judgment in repose.
5. See Fed. Rule App. Proc. 22(b)(2) (If no express request for a certificate is filed, the notice of [appeal shall be deemed to constitute] a request addressed to the judges of the court of appeals). The procedural route that petitioner navigated was actually more complicated. After the Magistrate Judge initially recommended dismissal of the petition as time barred, petitioner filed an objection that raised a Third Circuit case, Lovasz v. Vaughn, 134 F.3d 146 (1998), which was among the circuit cases that was later endorsed by Artuz, 531 U.S., at 8. The Magistrates final report noted that the Eleventh Circuit had not addressed the relevant issue of tolling, and then proceeded to rely (oddly) on Lovasz to deny petitioners claim. In my view, the citation to Lovasz and the Magistrates acknowledgment that there was no Eleventh Circuit precedent on point provided a reasonable basis for the granting of a COA. In fact, on September 23, 1998, petitioner filed an application for a COA, and this application was granted by the District Court. The Court of Appeals, however, dismissed petitioners appeal on October 28, 1999, and remanded the COA for a determination of which specific issues merited permission to appeal. On remand, petitioner filed a new application for a COA, but this time the District Court denied the request. Petitioner then filed a timely appeal, and the District Court granted his motion to proceed in forma pauperis on appeal. The Court of Appeals then declined to issue a COA and dismissed the appeal on April 6, 2000.
6. Ackermann is further distinguishable in that it did not involve the sort of plain error of law that has been identified in this case. But even if Ackermann were not distinguishable, I would find the views expressed by Justices Black, Frankfurter, and Douglas in dissent, see 340 U.S. at 202 (opinion of Black, J.), more persuasive than those expressed by Justice Minton.
7. A petition for certiorari seeking review of a denial of a COA has an objectively low chance of being granted. Such a decision is not thought to present a good vehicle for resolving legal issues, and error-correction is a disfavored basis for granting review, particularly in noncapital cases. See generally this Courts Rule 10. As for the fact that this Court granted certiorari in Artuz eight days after the Eleventh Circuit denied petitioner a COA, it would be unrealistic to fault petitioner for failing to capitalize on this fortuity. In my experience, even lower courts and counseled litigants are often not aware of our grants of certiorari on issues that may be relevant to their current business. It would be particularly inappropriate to impose such a strict expectation on a pro se prisoner, particularly in the absence of any indication of when, given his circumstances in prison, he could have reasonably been expected to learn of our grant in Artuz.