Mitchell v. Rees , 261 F. App'x 825 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0026n.06
Filed: January 9, 2008
No. 06-5693
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOE CLARK MITCHELL, )
)
Petitioner-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN REES, ) MIDDLE DISTRICT OF TENNESSEE
)
Respondent-Appellant, )
)
Before: BOGGS, Chief Judge, and BATCHELDER and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Respondent-appellant John Rees, warden of
the Corrections Corporation of America, South Central Correctional Facility, appeals the district
court’s grant of a writ of habeas corpus to petitioner-appellee Joe Clark Mitchell. Respondent argues
that the district court erred by granting Mitchell’s Rule 60(b) motion for relief from judgment
because the district court relied on this court’s prior decision, Mitchell v. Rees (“Mitchell I”), 114
F.3d 571 (6th Cir. 1997), which was erroneously decided. For the following reasons, we reverse the
decision of the district court.
I.
Mitchell was convicted in Tennessee state court in 1986. Mitchell I, 114 F.3d at 572-73. In
April 1993, Mitchell filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254
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(1994).1 Id. at 575. The district court dismissed all of Mitchell’s claims, except for a claim under
1
At the time Mitchell filed his petition, 28 U.S.C. § 2254(d) (1994) provided:
In any proceeding instituted in a Federal court by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual issue, made by a State court
of competent jurisdiction in a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evidenced by a written finding,
written opinion, or other reliable and adequate written indicia, shall be presumed to
be correct, unless the applicant shall establish or it shall otherwise appear, or the
respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court
hearing;
(2) that the factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court
hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the
person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his
constitutional right, failed to appoint counsel to represent him in the State
court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the
State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State
court proceeding;
(8) or unless that part of the record of the State court proceeding in which the
determination of such factual issue was made, pertinent to a determination of
the sufficiency of the evidence to support such factual determination, is
produced as provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual
determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof
of such factual determination has been made, unless the existence of one or more of
the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive,
is shown by the applicant, otherwise appears, or is admitted by the respondent, or
unless the court concludes pursuant to the provisions of paragraph numbered (8) that
the record in the State court proceeding, considered as a whole, does not fairly
support such factual determination, the burden shall rest upon the applicant to
establish by convincing evidence that the factual determination by the State court was
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Batson v. Kentucky, 476 U.S. 79 (1986), that African Americans had been excluded
unconstitutionally from the state court jury. Mitchell I, 114 F.3d at 575. After a magistrate judge
conducted an evidentiary hearing on the issue, the district court concluded that a Batson violation
had occurred and conditionally granted Mitchell’s petition. Id. On appeal, this court reversed,
concluding that the district court lacked jurisdiction to conduct an evidentiary hearing because it had
not identified a factor in 28 U.S.C. § 2254(d) (1994) that allowed it to dispense with the presumption
of correctness for the factual findings of the state courts. Id. at 577-78. Excluding the facts adduced
at the evidentiary hearing, and presuming the correctness of the state courts’ factual findings, the
court determined that Mitchell failed to establish a Batson violation. Id. at 578-79. This court found
no error in the dismissal of Mitchell’s other claims but remanded the case to the district court for it
to determine whether Mitchell could establish ineffective assistance of counsel for failure to raise
the Batson claim at trial or on direct appeal. Id. at 579 & n.13.
On remand, the district court held that the state court record demonstrated that at Mitchell’s
trial, his counsel had failed to make a Batson challenge and, as a result, the prosecutor had failed to
state on the record any reason for his striking the African American. Mitchell v. Rees (“Mitchell II”),
36 F. App’x 752, 753 (6th Cir. 2002). Therefore, the district court held that “the state court record
demonstrated ineffective assistance of counsel, and that ineffective assistance was cause for the
failure to develop the state court record.” Id. The district court then concluded that the evidence
developed in the earlier federal court evidentiary hearing sufficed to prove the Batson claim, which
erroneous.
28 U.S.C.A. § 2254(d) (1994).
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in turn sufficed to demonstrate prejudice from trial counsel’s ineffective assistance. Id. This court
reversed, holding that the district court’s conclusion was directly contrary to Mitchell I, and holding
further that there was no basis in law for the district court’s ‘perfectly circular conclusion’ that
Mitchell’s failure to develop the record in the state post-conviction proceedings was caused by his
trial counsel’s ineffective assistance. In Mitchell I, this court found that the state court’s conclusion
that a Batson violation was not established in the state court record was fairly supported by that
record. Id. at 753-54. This court remanded the “matter with instructions to the district court to enter
judgment denying the petition for a writ of habeas corpus.” Id. at 754. The district court entered
judgment in accordance with the mandate on March 14, 2002.
On September 13, 2000, this court issued its opinion in Abdur’Rahman v. Bell, 226 F.3d 696
(6th Cir. 2000), in which it held that the district court has the inherent authority to conduct an
evidentiary hearing. Id. at 705. In doing so, the court noted that “Mitchell[] . . . is overbroad in that
it fails to recognize the inherent authority that a district court always has in habeas cases to order
evidentiary hearings . . . .” Id. at 706. On July 28, 2005, this court issued its opinion in Harries v.
Bell, 417 F.3d 631 (6th Cir. 2005), in which it confirmed that “Mitchell conflicts with Sixth Circuit
and Supreme Court precedent.” Id. at 635. Furthermore, on June 23, 2005, the Supreme Court
issued its opinion in Gonzalez v. Crosby, 545 U.S. 524 (2005), in which the Supreme Court held that
a motion for relief from judgment under Federal Rule of Civil Procedure 60(b) by a habeas petitioner
is not automatically treated as a successive habeas petition under 28 U.S.C. § 2244(b). Id. at 538.
In response to these cases, on December 9, 2005, Mitchell filed a motion for relief from
judgment pursuant to Rule 60(b)(6), arguing that Mitchell I erroneously denied him an evidentiary
hearing and requesting that the district court reopen the case and grant the hearing. The district court
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concluded that Mitchell’s motion was not a successive habeas petition and that the decision in
Mitchell I was in error. It also concluded that the facts of the case constituted an “extraordinary
circumstance” and satisfied the requirements of Rule 60(b)(6). Therefore, it granted an evidentiary
hearing, adopted the factual findings of the earlier federal court evidentiary hearing, and granted
Mitchell’s petition because of the Batson violation.
II.
As a threshold matter, respondent argues that the district court does not have the power to
reconsider its judgment under Rule 60(b) because Mitchell is challenging a judgment of this court
not the district court. “Under the doctrine of law of the case, findings made at one point in the
litigation become the law of the case for subsequent stages of that same litigation.” United States
v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). “A complementary theory, the mandate rule,
requires lower courts to adhere to the commands of a superior court.” Id.; see also United States v.
Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (explaining that “the mandate rule is a specific
application of the law-of-the-case doctrine”). However, these rules are not without exception.
Moored, 38 F.3d at 1421. The Supreme Court has rejected the proposition “that an appellate court’s
mandate bars the trial court from later disturbing the judgment entered in accordance with the
mandate.” Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976); see also Ritter v.
Smith, 811 F.2d 1398, 1401-04 (11th Cir. 1987) (cited favorably by Gonzalez, 545 U.S. at 534)
(affirming the district court’s Rule 60(b) reconsideration in a habeas case of judgment made pursuant
to appellate court’s mandate in light of subsequent change in controlling law). An issue already
decided may be reopened in limited circumstances, such as where there is “substantially different
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evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling
authority; or a clearly erroneous decision which would work a manifest injustice.” Moored, 38 F.3d
at 1421 (internal quotation marks omitted). Here, the subsequent rulings by this court in Harries and
Abdur’Rahman explicitly adopted a contrary view of the district court’s authority to grant an
evidentiary hearing from that advanced in Mitchell I and confirm that Mitchell I was erroneous when
decided. See Harries, 417 F.3d at 635; Abdur’Rahman, 226 F.3d at 705-06. Relying upon the
evidence adduced from the evidentiary hearing, the district court concluded that Mitchell
demonstrated a Batson violation, a conclusion which this court has never rejected. Given these facts,
the district court was not bound by Mitchell I.
Still, before Mitchell’s motion can be considered on its merits, Mitchell must overcome two
procedural hurdles: (1) his Rule 60(b) motion must not be a second or successive habeas petition
prohibited by AEDPA and (2) he must satisfy the requirements of Rule 60(b).2
A motion under Rule 60(b) may be treated as a second or successive habeas petition if
necessary to enforce the requirements of 28 U.S.C. § 2244(b). See Gonzalez, 545 U.S. at 529, 531-
32. If, under this standard, a 60(b) motion were found to be a successive habeas petition, such a
finding would require application of 28 U.S.C. § 2244(b), which would serve as a jurisdictional bar
to the 60(b) motion. See, e.g., Post v. Bradshaw, 422 F.3d 419, 421 (6th Cir. 2005) (holding that the
petitioner’s 60(b) was barred by § 2244(b) because the motion was in fact a successive habeas
petition). In order for § 2244(b) to be implicated, a Rule 60(b) motion must constitute a “habeas
corpus application” by containing a “claim.” Gonzalez, 545 U.S. at 530. A Rule 60(b) motion
2
Before the district court, Mitchell argued that the district court’s equitable powers over its
own judgment derived from Article III of the Constitution and 28 U.S.C. § 2243 provided bases
separate from Rule 60(b) for providing relief. Mitchell does not raise these arguments on appeal.
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contains a claim if it asserts a federal basis for relief from a state court’s judgment of conviction, id.,
by “seek[ing] to add a new ground for relief,” or “attack[ing] the federal court’s previous resolution
of a claim on the merits,” id. at 532. However, no claim is presented if a Rule 60(b) motion attacks
“some defect in the integrity of the federal habeas proceedings,” id., such as “assert[ing] 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. In
short, a Rule 60(b) motion is not a successive habeas petition “if it does not assert, or reassert, claims
of error in the movant’s state conviction.” Id. at 538.
Here, Mitchell’s Rule 60(b) motion argues that Mitchell I erroneously denied him an
evidentiary hearing and requests that the district court reopen the case and grant the hearing. This
is not a “claim” because it does not assert an error in the state conviction and would not constitute
a federal basis for relief. Respondent argues that this case is distinguishable from cases in which a
limitations bar applies because here the court actually decided Mitchell’s original claim on the
merits. While this may be true, the 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. If it does not
contain a claim, it is not a habeas petition, successive or otherwise. See Gonzalez, 545 U.S. at 530.
Because Mitchell’s Rule 60(b) motion challenges only the judgment on the evidentiary hearing, it
does not make a claim but rather asserts an error in the federal habeas proceeding. Therefore,
Mitchell’s Rule 60(b) motion is not subject to the provisions of 28 U.S.C. § 2244(b).
Although Mitchell’s Rule 60(b) motion does not constitute a second or successive habeas
petition, in order to prevail, he still must satisfy the requirements and limitations of Rule 60(b) to
prevail. See id. at 534-35. Rule 60(b), in relevant part, allows a party to seek relief from a final
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judgment for: “(1) mistake, inadvertance, surprise, or excusable neglect . . . ; or (6) any other reason
justifying relief from the operation of judgment.” Fed. R. Civ. P. 60(b). A district court’s decision
to grant relief pursuant to Rule 60(b) is reviewed for an abuse of discretion. Blue Diamond Coal Co.
v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). “A district court
abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal
standard, or relies upon clearly erroneous findings of fact.” Schenck v. City of Hudson, 114 F.3d
590, 593 (6th Cir. 1997).
It was an abuse of discretion to grant relief under Rule 60(b)(6) because Mitchell’s motion
should have been brought under Rule 60(b)(1). Rule 60(b)(6) is interpreted narrowly, permitting
relief only in “extraordinary circumstances.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 863-64 (1988); Abdur’Rahman v. Bell, 493 F.3d 738, 741 (6th Cir. 2007). Specifically, a
motion may not be brought under Rule 60(b)(6) if it is premised on one of the grounds for relief
enumerated in clauses (b)(1) through (b)(5). Liljeberg, 486 U.S at 863 & n.11. Here, Mitchell seeks
relief because Mitchell I was “totally wrong” and the court made a “patent error in denying an
evidentiary hearing.” The cases upon which he relies for this proposition confirm that the Mitchell
I decision was an error when decided and not a correct decision abrogated by a subsequent change
in the law. See Harries, 417 F.3d at 635; Abdur’Rahman, 226 F.3d at 705-06. In fact, Mitchell I
must be considered an error because the later panels of this court lacked the power to overrule the
decision of the prior panel. Compare Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689
(6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel.”) with Habich
v. City of Dearborn, 331 F.3d 524, 530 n.2 (6th Cir. 2003) (“When an opinion of this court conflicts
with an earlier precedent, we are bound by the earliest case.”). As it is clear that Mitchell’s Rule
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60(b) motion alleges a mistake made by this court in Mitchell I, rather than a change in the law, his
motion is properly made pursuant to Rule 60(b)(1). Abdur’Rahman, 491 F.3d at 741; Pierce v.
United Mine Workers of Am. Welfare & Ret. Fund for 1950 & 1974, 770 F.2d 449, 451 (6th Cir.
1985) (“This Court has recognized a claim of legal error as subsumed in the category of mistake
under Rule 60(b)(1).”). Therefore, the district court abused its discretion by granting relief under
Rule 60(b)(6). See McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 595-
96 (6th Cir. 2002).
Construing Mitchell’s motion pursuant to Rule 60(b)(1), it must be denied as untimely filed.
A motion made pursuant to Rule 60(b)(1) must be made “not more than one year after the judgment,
order or proceeding was entered or taken.” Fed. R. Civ. P. 60(b). This time limit is jurisdictional,
Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir. 2006), and the district court does not have the
discretion to extend the period of limitation, Smith v. Sec’y of Health & Human Servs., 776 F.2d
1330, 1332-33 (6th Cir. 1985); see also Fed. R. Civ. P. 6(b).3 Mitchell argues, and the district court
determined, that his motion was timely filed because, prior to the June 2005 Supreme Court decision
in Gonzalez, relief from judgment under Rule 60(b) was treated as a successive habeas petition under
McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996). While enforcement of the time limit may seem
unfair, “[t]he general purpose of Rule 60(b) is to strike a proper balance between the conflicting
principles that litigation must be brought to an end and that justice must be done.” Charter Twp. of
Muskegon v. City of Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (internal quotation marks and
alteration omitted). Such balancing necessarily creates situations in which an alleged injustice can
3
Federal Rule of Civil Procedure 6(b) states in relevant part “[a court] may not extend the
time for taking any action under Rule[] . . . 60(b), except to the extent and under the conditions stated
in [it].”
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no longer be remedied. The one-year deadline for seeking certain grounds of relief also “limit[s] the
friction between Rule 60(b) and the successive-petition prohibitions of AEDPA.” Gonzalez, 545
U.S. at 534-35. There is no question that Mitchell’s Rule 60(b) motion was filed more than a year
after the district court’s judgment. Therefore, having found the motion to have been untimely filed,
we reverse the decision of the district court.
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