# United Stat es Court of Appeals For the First C ircuit

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, 2003-2- SELYA, Circuit Judge . The case at bar presents a ques tion 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 heldthat Rule 60(b) remains fully velivolant in the habeas context. Others have held that the restrictions imposed on the filin g of second or successive applications for habeas relief b y 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. AED PA's restrictions on the filing of secondor 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 petiti ons, we see no justification for throwing out the baby with the bath water. Consequently, we hold tha t a Rul e 60(b) motion should be treated as a second or-3-

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 c onvict ion. 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 fell ow 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 imprisonmen t o n the murder charge and lesser sentences on the other counts.1 The original respondent, Michael Fair, is no long er i n

office. His successor, Peter A. Pepe, Jr., has been substituted by operation of law. See Fed. R. Civ. P. 25(d)(1); Fe d. R. Ap p. P. 43(c)(2). -4-

In 1983, the petitioner filedan 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 allegedthat Nagle was, in effect, an undercover government ag ent wh ile 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 excludedas procured in violation of the Sixth Amendment; and that, therefore, his conviction could not pass c o nstitutional 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-5-

in the state court. Rodwell v. Fair , 834 F.2d 240, 241-42 (1st Cir. 1987) (per curiam).

The petitioner was not deterred. Follow ing a lull, he filedthree 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-clea ranc e 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.

Apanel of this court carefu l ly considered his application and concluded that the petitioner hadfailed to produce anynew facts, sufficient to show his actual innocence clearly and convincingly, which could not have been discover ed t hrough 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 pan el refused the petitioner's request to file a second federal2 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 lon ger 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, andfor reasons (1), (2), and (3) not -6- habeas petition. Id. Under the AEDPA, t his 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

er ecte dto 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 hadsuppressed "exculpator y ev idence" that shed doubt on Nagle's status and that "it was not until well after his conviction, direct appeal and habeas denial t hat 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 Pr oced ure 60(b) 2more than one year after the judgment . . . was entered or taken."

Id. -7- — a characterization that the petitioner enthusiasticallyembraced. 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 wa s 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 imp lications 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.-8- 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 vaca te a judgment denying habeas is not a secondor successive hab eas petition and should therefore be treatedas any other motion under Rule 60(b)." Rodriguez v. Mitchell , 252 F.3d 1 91, 198 (2 d Cir. 2001). The court reasoned that a Rule 60(b) motion does not seek the relief requested by a habeas pet ition, but, rather, "seeks only to vacate the federal court judgment dismissing the habeas petition." Id. That is "merelya step along the way" to habeas relief. Id. at 199. Consequently, affording Rule 60(b) its customary scope does not offend the AEDPA. Id.

A t the other end of the spectrum, several courts h av e concludedthat a Rule 60(b) motion in a habeas case must always be treatedas a second or successive habeas petition under the AEDPA. See , e.g. , Mobleyv. 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)-9-

and thereby evade the limitations that Congress so painstakingly craftedin 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, th e court concluded that allowing habeas petitioners access to Rule 60(b) would contraven e th e 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 h abeas 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 r ule adopte d in cases such as Mobleyand Felker

seems t o sweep t oo broadly. That rule makes no allowance for circumstances, arising in the course of a fede ral habeas proceeding, whic h might justify setting aside a judgment denying habeas relief although not addressing t he 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 orde r-10-

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 th at 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 primarilywith the constitutionality of th e unde rlying state conviction or sentence, then the motion should be treated as a secondor success ive habeas petition. This situation should be distinguishedfrom one in which the motion's factual p redi cate deals primarilywith some irregularityor 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).-11- 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 affi xed to a particular motion but on its essence. Th is app roach is exemplified by the Seventh Circuit's opinion in Dunlap v. Litscher , 301 F.3d 873 (7th Cir. 2002). The Dunlap court warnedagainst permitting facile c ircumvention of the AEDPA's limitations on successive collateral attacks by the simple expedi ent of characterizing a habeas petition as a motion under Rule 60(b). Id. at 875. "Otherwise, the AEDPA' s lim itations on collateral attack would be set at naught." Id. But the court acknowledgedthat "Rule 60(b) has a very broad scope and it is easy to imagine cases in which allowing a p riso ner to file a motion under it would pose no risk of conflict with the limitations that AEDPAplaces 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 moti on 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. Cald ero n , 151 F.3d 918, 921 & n.3 (9th Cir. 1 998 ) (en banc) (acknowledging that a Rule 60(b) motion ordinarily"shouldbe treated as a successive habeas petition," but eschewing "a bright line rule equating all Rule 60(b) motions with successive habeas petitions"); UnitedStates v. Rich , 141 F.3d 550, 551 (5th Cir. 1998) (indicating a willingness to consider whether-12-

a Rule 60(b) motion "is the functional equivalent of a [habeas petition]"); Hunt v. Nuth , 57 F.3d 1327, 1339 (4th Cir. 1995) (treat ing 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 seekin g 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 pro per ly be examinedas 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 andhold 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 constitutionalityof the underlyin g co nviction. In contrast, if the factual predicate of the motion challenges onlythe procurement of the federal habeas judgment, it may be adjudicated under Rule 60(b).-13- We do not pretend that this te st 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 consideredand 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 distr ict court for an opport uni tyto offer facts that (in the petitioner's view) will prove that his convictio n was "constitutionally infirm." Such a claimis 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 withheldduring earlier proceedings (including the original habeas proceeding), thus constituting an "ongoing fraud" that challenges-14-

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 t o th is court in his unsuccessful effort to secure permission to file a secondhabeas 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 bo th u nobtainable and probative." The law of the case doctrine ordinarily calls fo r 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 mat ters, the petitioner concedes that, on the recordthen before it, the district court committedno error in its handling of the original habeas proceeding such as would undermine the procurement of the judgment enteredtherein. The most that can be said for his present position is that the district court, if it hadthe 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-15-

underlying conviction. So viewed, the motion before us is the practical equivalent of a second or successive habeas petition.

We add a coda. We acknowled ge tha t, despite the petitioner's numerous attempts t o e xpose the full extent of the relationship between Nagle and the state prosecutor, no court has exhaustivelyaddressed that clai m. Some of these lost opportunities may fairly be attributed to procedural errors on the petitioner's part. Others , howe ver, are linked to the stringent filters that channel consideration of habeas cor pus 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 th e abu se of the habeas corpus process, and particularly to address the problem of delayand repetitive litigation"). Section 2244(b)(3) establishes

a rigorous gatekeeping arrangement through which second or successive hab eas applications must pass, and it was the petitioner's inability to open that gate t hat kept the district court from probing more deeply into the circumstances surrounding Nagle's testimony. This may seem overly restrictive — but any complaint abou t th e 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-16-

UnitedStates v. Victoria-Peguero , 920 F.2d 77, 81 (1st Cir. 1990) (stating this court's resolve to refrain from "substitut[ing] judici al judgment for legislative judgment or . . . plac[ing] li mita tions on [statutory language] which were not envisioned by Congress"). III. CONCLUSION

We need go no further. We hol d th at the lower court appropriatelytreated the petitioner's Rule 60(b) motion as a secondor 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 .