Hess v. Cockrell ( 2002 )

Revised August 15, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11037
JEFFREY HESS,
Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
January 24, 2002
Before POLITZ, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Janie Cockrell, the Director of the Texas Department of
Criminal Justice, Institutional Division, appeals the district
court’s grant of Jeffrey Hess’ petition for a writ of habeas
corpus. The district court had previously dismissed Hess’ petition
as time-barred, but granted relief from that judgment after Hess
filed a motion under Rule 60(b) of the Federal Rules of Civil
Procedure. We are persuaded that Hess failed to demonstrate the
requisite “extraordinary circumstances” to justify relief under
Rule 60(b)(6), and we must vacate the able district court’s grant
of the writ.
I
Jeffrey Hess was convicted of aggravated sexual assault of a
child in July 1994, after a guilty plea. He was sentenced to 15
years in prison. Hess filed his first petition for postconviction
relief in state court in May 1996. It was denied as procedurally
barred. The Texas Court of Criminal Appeals denied Hess’ appeal
without written order.
Hess then filed a 28 U.S.C. § 2254 petition in district court
on April 24, 1997. The district court read our decision in United
States v. Flores1 to require that the petition be dismissed as
time-barred. The district court did not have the benefit of our
later opinion in Flanagan v. Johnson,2 which held that petitions
filed on April 24, 1997 are timely under Flores.3
In November 1999 (over two years after the dismissal of his
first petition and over one year after this court’s decision in
Flanagan), after a second unsuccessful attempt at relief in state
court, Hess filed a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(5), alleging he was entitled to
relief because his first habeas petition had been timely. The
district court adopted the recommendations of the magistrate that:
1
135 F.3d 1000 (5th Cir. 1998) (holding that prisoners had one year from
the effective date of AEDPA (April 24, 1996) to file their habeas petitions
before they could be considered time-barred by the operation of § 2244(d)(1)).
2
154 F.3d 196 (5th Cir. 1998).
3
Id. at 202.
2
(1) while relief was unavailable under 60(b)(5), it should be
granted under Rule 60(b)(6) because Hess had shown the
“extraordinary circumstances” required for such relief and (2) a
writ of habeas corpus be granted on Hess’ ineffective assistance
claim.
II
Appellant first argues that the district court was without
jurisdiction to entertain Hess’ motion because it was, in fact, a
second or successive habeas petition within the meaning of 28
U.S.C. § 2244.4 We have stated that Rule 60(b) motions seeking to
amend or alter the judgment of a first habeas proceeding “should be
construed as successive habeas petitions.”5 Here, the parties
dispute whether or not this circuit has completely closed the door
on Rule 60(b) motions in habeas cases—in other words whether all
such Rule 60(b) motions must be construed as successive petitions.6
While nothing on their face suggests that Rule 60(b) motions are to
be seen as anything other than successive petitions, we need not
decide here whether there are no circumstances under which they
4
See 28 U.S.C. § 2244(b)(3) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”).
5
Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999).
6
See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (stating
that “courts may treat motions that federal prisoners purportedly bring under
Rule 60(b), but which essentially seek to set aside their convictions on
constitutional grounds as § 2255 motions.” (emphasis added)).
3
would not be because relief under Rule 60(b) is, in any event,
unavailable to Hess.
III
A
We review the district court’s grant of relief under Rule
60(b) for abuse of discretion.7
Appellant argues that the district court abused its discretion
by awarding relief based upon Rule 60(b)(6) when Hess’ motion was
in fact based upon Rule 60(b)(5).8 We stated in Bailey v. Ryan
Stevedoring Co.9 that “the catch-all clause of Rule 60(b)(6) cannot
be invoked when relief is sought under one of the other grounds
enumerated in Rule 60.”10 However, what was meant in Bailey was
that the first five clauses of Rule 60(b) and the sixth are
mutually exclusive, not that simply moving under Rule 60(b)(5)
7
In re Grimland, Inc., 243 F.3d 228, 233 (5th Cir. 2001).
8
Rule 60(b) provides 6 alternative grounds for relief: “(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 (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from operation of the
judgment.” Fed. R. Civ. P. 60(b). Hess does not quarrel with the district
court’s conclusion that he does not qualify for relief under Rule 60(b)(5).
9
894 F.2d 157 (5th Cir. 1990).
10
Id. at 160.
4
prevented the award of relief under Rule 60(b)(6) if the court
ruled that relief was unavailable under (b)(5).11 This is confirmed
by Bailey’s citation to Transit Casualty Co. v. Security Trust
Co.,12 where this court stated that “Rule 60(b)(1) and Rule 60(b)(6)
are not pari passu and are mutually exclusive .... The reason for
relief set forth in Rule 60(b)(1) cannot be the basis for relief
under Rule 60(b)(6).”13 It is further evidenced by the treatment
of Bailey in the district courts.14
Thus, it was not an abuse of discretion to construe
petitioner’s Rule 60(b)(5) motion as a Rule 60(b)(6) motion.
B
Rule 60(b)(6) provides that a court may act to relieve a party
from a final judgment for “any other reason justifying relief from
the operation of the judgment.”15 It is a catch-all provision,
meant to encompass circumstances not covered by Rule 60(b)’s other
11
“[R]elief cannot be had under clause (6) if it would have been available
under the earlier clauses.” Wright and Miller, Federal Practice and Procedure,
§ 2264 at 362 (citing other cases).
12
441 F.2d 788 (5th Cir. 1971).
13
Id. at 792.
14
See, e.g., In re Celano, No. CIV-A-99-1061, 2000 WL 193068 at *3 (E.D.
La. Feb. 15, 2000) (construing Rule 60(b)(5) motion as Rule 60(b)(6) motion after
determining, under Bailey, that relief was unavailable under Rule 60(b)(5)).
15
Fed. R. Civ. P. 60(b)(6).
5
enumerated provisions.16 Rule 60(b)(6) motions “will be granted
only if extraordinary circumstances are present.”17
Under our precedents, changes in decisional law, such as our
opinion in Flanagan, do not constitute the “extraordinary
circumstances” required for granting Rule 60(b)(6) relief.18 Hess
responds to this with two arguments. First he contends that
Flanagan was not a change in decisional law, but a straightforward
application of circuit precedent, and therefore his circumstances
qualify as “extraordinary.” Second he points to dicta in our
decision in Batts v. Tow-Motor Forklift Co.19 rejecting the
proposition that “a change in decisional law can never be an
extraordinary circumstance,” in part because “[c]ourts may find a
special circumstance warranting relief where a change in the law
affects a petition for habeas corpus, where notions of finality
have no place.”20
Hess’ first argument runs afoul of the unfortunate (for him)
fact that Rule 60(b)(6) motions are not substitutes for timely
appeals. “[A] Rule 60(b) appeal may not be used as a substitute
for the ordinary process of appeal ... particularly [] where, as
16
Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).
17
Id. (quoting Bailey, 894 F.2d at 160).
18
Id. at 747-48; Picco v. Global Marine Drilling, 900 F.2d 846, 851 (5th
Cir. 1990); Bailey, 894 F.2d at 160.
19
66 F.3d 743 (5th Cir. 1995).
20
Id. at 748 n.6.
6
here, a mistake of law is alleged to be the primary ground of the
appeal.”21 Hess has offered no explanation for his failure to
appeal. Thus, either way Flanagan is characterized—as a change of
decisional law or as an application of existing circuit
precedent—Hess must lose, because if Flanagan is a change of
decisional law he has not demonstrated extraordinary circumstances
and if Flanagan is not a change in decisional law he has offered no
excuse for his failure to appeal the initial denial of habeas
relief.
Hess’ second argument also fails. The dicta in Batts
suggesting that the rule for changes in decisional law might be
different in the habeas corpus context because finality is not a
concern is now flatly contradicted by, among other things, AEDPA.22
We therefore conclude that the district court abused its
discretion in granting relief under Rule 60(b)(6) because Hess did
not demonstrate the requisite “extraordinary circumstances.”23
IV
21
Matter of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th
Cir. 1984). See also Wright and Miller, Federal Practice and Procedure, § 2264
at 360-61.
22
See, e.g., 28 U.S.C. § 2244(b). This subsection is appropriately titled
“Finality of determination.”
23
We need not reach the question of whether, since the Rule 60(b) motion
was filed more than one year after Flanagan and more than two after the petition
was first dismissed, it was not within a “reasonable time,” as required by the
rule. Fed. R. Civ. P. 60(b).
7
Hess also argues that the district court could have granted
relief under the independent action doctrine. The independent
action doctrine gets its name from the portion of Rule 60(b) which
states that the rule “does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order, or proceeding.” “This is not an affirmative grant of power
but merely allows continuation of whatever power the court would
have had to entertain an independent action if the rule had not
been adopted.”24 While Hess did not raise this alternative
argument below, we may consider it as long as the adverse party is
not prejudiced.25
No relief is available under the independent action doctrine.
The elements of an independent action are
(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the
alleged cause of action on which the judgment is founded;
(3) fraud, accident, or mistake which prevented the
defendant in the judgment from obtaining the benefit of
his defense; (4) the absence of fault or negligence on
the part of defendant; and (5) the absence of any
adequate remedy at law.26
Hess cannot satisfy these requirements—especially (3) and (4).
There was no fraud alleged in this case, and this court has only
awarded relief “on the ground of mistake ... where mutual mistake
is shown and where the party seeking relief is without fault or
24
Wright and Miller, Federal Practice and Procedure, § 2868 at 396.
25
Johnson Waste Materials v. Marshall, 611 F.2d 593, 601 (5th Cir. 1980).
26
Bankers Mortg. Co. v. United States, 423 F.2d 73, 79 (5th Cir. 1970).
8
negligence in the premises.”27 Hess was also negligent in failing
to pursue his remedies on direct appeal.
27
West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d
702, 706 (5th Cir. 1954).
9
V
For the foregoing reasons, the district court’s grant of the
writ of habeas corpus is VACATED. Hess’ motions to dismiss his
counsel, appoint substitute counsel, appear pro se, and for an out-
of-time appeal are all DENIED; and Appellant’s motion to supplement
the record is DENIED AS MOOT.
10