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
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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.
1The 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 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
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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
2The 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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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
more than one year after the judgment . . . was entered or taken."

Id.

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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.
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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.