ABDUR'RAHMAN UPDATE

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.

UNRINGING THE BELL

An interesting development yesterday was the Court's DIG of Abdur'Rahman v. Bell, No. 01-9094, and Justice Stevens's dissent therefrom. The case would have resolved whether a Rule 60(b) motion (to overturn a final judgment) in the context of a federal habeas proceeding must as a matter of law be treated as a "second or successive" habeas petition. The question is an interesting one, on which Justice Stevens seems correct on the merits.

The jurisdictional concerns that motivated the DIG were given short shrift by Justice Stevens and are rather convoluted. The district court treated the petitioner's Rule 60(b) motion as a second habeas petition -- this was the basis for the merits question -- and concluded that it lacked jurisdiction on the ground that the federal habeas statute, as recently amended, requires an applicant to first obtain leave from the court of appeals to file a second or successive petition. See 28 U.S.C. sec. 2244(b)(3)(A). (Query whether a habeas petitioner's failure to follow section 2244(b)(3)(A) really creates a jurisdictional defect.) The district court could have dismissed the case, but instead invoked the federal transfer statute, 28 U.S.C. sec. 1631 (allowing, in the interests of justice, for transfer to another court to cure a want of jurisdiction), and transferred the case to the Sixth Circuit.

The petitioner sought review of the district court's transfer order in court of appeals. The Sixth Circuit dismissed the appeal for want of jurisdiction on the grounds that the district court's order was not an appealable order. The Sixth Circuit also addressed the transferred motion (which it treated as a request for an application to file a second habeas petition) and denied it on the merits. From these rulings, the petitioner filed his cert. petition.

The Supreme Court's DIG followed an order of supplemental briefing on the following two questions: "Did the Sixth Circuit have jurisdiction to review the District Court's order . . . transferring petitioner's Rule 60(b) motion to the Sixth Circuit pursuant to 28 U.S.C. [sec.] 1631?" and "Does th[e Supreme] Court have jurisdiction to review the Sixth Circuit's order . . . denying leave to file a second habeas corpus petition?" Presumably the Court thought that the answer to both questions is "no" (or, at least, that the questions are difficult enough to warrant a DIG). This strikes us as correct. With respect to the former question, because transfer orders are interlocutory in nature, they generally are not appealable. And as for the latter, pursuant 28 U.S.C. sec. 2244(b)(3)(E), a circuit court's denial of an application to file a second habeas petition is not reviewable by the Supreme Court (or any other court). Unfortunately for the petitioner, these two rules, in conjunction with the district court's decision to transfer the petitioner's motion, rather than dismiss it, effectively immunized the case from review.

BAKED BEAN

The highlight of the day yesterday was Justice Thomas's opinion for the Court in United States v. Bean, No. 01-704. Bean properly holds that an agency's non-action on a relief application does not constitute a merits "'denial" for purposes of a statutory judicial review provision. It certainly would have been understandable for Justice Thomas to have strained to find jurisdiction in order to hold that the underlying federal statute prohibiting firearms possession by persons convicted of felonies (including, as in Bean, felonies committed in a foreign jurisdiction) exceeds the Congress's lawmaking power under the Commerce Clause and violates the Second Amendment. But the Fourteenth Circuit applauds Justice Thomas's typically restrained and honest jurisprudence.