Wednesday, December 11, 2002


One of our readers, a federal district court law clerk, provides some practical feedback:

"Rule 60(b) is the most favorite rule of all prisoners. It is their way of repeatedly asking for a motion for reconsideration and repeated bugging the court so they can get some mail in return. We have often treated Rule 60(b)s as successive habeas petitions because the prisoner will say, yeah, well in addition to that stuff that I mentioned in my first habeas petition, I also didn't do it, so I should get out of prison. In the real world, this is adding an additional claim to the habeas petition and should be treated as successive. He could have told us he didn't do it the first time around. Note also that we treat a failure to seek permission to file a successive petition from the circuit as a jurisdictional defect and say we can't do a thing (but we also direct the clerk's office to forward the motion to the circuit court so these prisoners don't get screwed)."

Interesting comments. We certainly share the reader's concern about prisoners and their loophole lawyers trying to game the system with successive mislabeled habeas petitions. But the cert. question was whether the Sixth Circuit erred in holding that every 60(b) motion constitutes a prohibited second petition. And there are examples of 60(b) motions that challenge the integrity, not of the underlying conviction (for which a second habeas petition is the appropriate mechanism), but of the district court judgment rejecting the habeas petition. Take the example of a fraud committed on the district court by the state during the habeas proceeding. In the absence of express statutory language making Rule 60(b) inapplicable to such situations, the rule should apply.


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