Rule 60(b) can’t skirt limits on successive § 2254 petitions

Where a defendant attempted to circumvent the statutory limits placed on second or successive § 2254 petitions by filing a Rule 60 motion, it should have been dismissed.

Background

After the district court denied Steven Vernon Bixby’s initial 28 U.S.C. § 2254 petition, he obtained new counsel and filed a motion to reopen that judgment under Federal Rule of Civil Procedure 60(b). He argued that exceptional circumstances warranted this relief because his original § 2254 counsel had, in effect, abandoned him by submitting a § 2254 petition that omitted several potentially meritorious issues and inadequately presented the issues that had been raised. He asked the court to reopen the judgment and allow him to file additional briefing and new claims.

The district court concluded that Bixby’s motion was not a true Rule 60(b) motion. Rather, Bixby was attempting to use Rule 60(b) to circumvent the statutory limits placed on second or successive § 2254 petitions. Recognizing that it would lack jurisdiction to consider a second § 2254 petition, the district court denied Bixby’s motion without considering its merits.

Analysis

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court considered the interplay between the limits in the Anti-Terrorism and Effective Death Penalty Act, or AEDPA, on second or successive federal habeas petitions and Rule 60(b) relief. It cautioned that Rule 60(b)(6) motions could not be used as a vehicle for “‘circumvent[ing] the requirement[s]’ for securing relief under AEDPA.” The Supreme Court therefore recognized that as between AEDPA and Rule 60(b), the balance weighs heavily in favor of AEDPA finality.

Under Gonzalez, the type of attorney-error argument Bixby makes in his Rule 60(b) motion “ordinarily” would be treated as a second or successive habeas petition over which the district court lacked jurisdiction. The district court’s judgment denying the initial § 2254 petition resolved each of Bixby’s claims on the merits, thus making it all the more likely that any Rule 60(b) motion seeking to revisit that judgment would be in tension with AEDPA’s limits on second or successive habeas petitions.

The substance of Bixby’s Rule 60(b) motion confirms that he “seeks to revisit the federal court’s denial on the merits of a claim for relief,” something that Gonzalez repeatedly states “should be treated as a successive habeas petition.” This is so even though Bixby’s Rule 60(b) motion does not directly present new arguments or claims in favor of § 2254 relief.

The Supreme Court’s concern about circumventing AEDPA is no less present when a petitioner uses Rule 60(b) as the means for future filings that would circumvent AEDPA than when the motion itself does so. The end result is the same, and impermissible in either case. Gonzalez observed how claims “couched in the language of a true Rule 60(b) motion” nonetheless sought the district court’s permission to consider new arguments or claims in support of federal habeas relief.

The inconsistency with AEDPA is the core problem, and the “couch[ing]” to create distance between the Rule 60(b) motion’s grounds and how it runs afoul of § 2244’s limits is merely an effort to obfuscate that inconsistency. Other circuit courts applying Gonzalez have recognized the same. None of Bixby’s arguments to the contrary are convincing.

The district court correctly recognized that Bixby did not bring a true Rule 60(b) motion and that his motion was properly subjected to AEDPA’s limits on a second or successive habeas petition. Given that Bixby’s motion actually sought permission to raise new and revised claims in a second or successive § 2254 petition, § 2244 and this court’s case law reflect that the district court should have dismissed—not denied—the motion.

Finally the court concludes that it was not necessary for this court to grant a certificate of appealability before deciding Bixby’s appeal.

Vacated and remanded with instructions.

Bixby v. Stirling, Case No. 22-4, Jan. 5, 2024. 4th Cir. (Agee), from DSC at Florence (Hendricks). David Weiss for Appellant. William Joseph Maye for Appellees. VLW 024-2-009. 31 pp.