                       Revised August 15, 2002

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                             No. 00-11037



JEFFREY HESS,
                                            Petitioner-Appellee,

                                versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                       Respondent-Appellant.


             Appeal from the United States District Court
                  for the Northern District of Texas


                           January 24, 2002

Before POLITZ, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Janie Cockrell, the Director of the Texas Department of

Criminal Justice, Institutional Division, appeals the district

court’s grant of Jeffrey Hess’ petition for a writ of habeas

corpus. The district court had previously dismissed Hess’ petition

as time-barred, but granted relief from that judgment after Hess

filed a motion under Rule 60(b) of the Federal Rules of Civil

Procedure.     We are persuaded that Hess failed to demonstrate the

requisite “extraordinary circumstances” to justify relief under

Rule 60(b)(6), and we must vacate the able district court’s grant

of the writ.
                                          I

      Jeffrey Hess was convicted of aggravated sexual assault of a

child in July 1994, after a guilty plea.            He was sentenced to 15

years in prison.        Hess filed his first petition for postconviction

relief in state court in May 1996.            It was denied as procedurally

barred.      The Texas Court of Criminal Appeals denied Hess’ appeal

without written order.

      Hess then filed a 28 U.S.C. § 2254 petition in district court

on April 24, 1997.        The district court read our decision in United

States v. Flores1 to require that the petition be dismissed as

time-barred.       The district court did not have the benefit of our

later opinion in Flanagan v. Johnson,2 which held that petitions

filed on April 24, 1997 are timely under Flores.3

      In November 1999 (over two years after the dismissal of his

first petition and over one year after this court’s decision in

Flanagan), after a second unsuccessful attempt at relief in state

court, Hess filed a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b)(5), alleging he was entitled to

relief because his first habeas petition had been timely.                  The

district court adopted the recommendations of the magistrate that:



      1
        135 F.3d 1000 (5th Cir. 1998) (holding that prisoners had one year from
the effective date of AEDPA (April 24, 1996) to file their habeas petitions
before they could be considered time-barred by the operation of § 2244(d)(1)).
      2
          154 F.3d 196 (5th Cir. 1998).
      3
          Id. at 202.

                                          2
(1) while relief was unavailable under 60(b)(5), it should be

granted     under    Rule    60(b)(6)       because   Hess     had   shown   the

“extraordinary circumstances” required for such relief and (2) a

writ of habeas corpus be granted on Hess’ ineffective assistance

claim.



                                        II

     Appellant first argues that the district court was without

jurisdiction to entertain Hess’ motion because it was, in fact, a

second or successive habeas petition within the meaning of 28

U.S.C. § 2244.4      We have stated that Rule 60(b) motions seeking to

amend or alter the judgment of a first habeas proceeding “should be

construed as successive habeas petitions.”5                  Here, the parties

dispute whether or not this circuit has completely closed the door

on Rule 60(b) motions in habeas cases—in other words whether all

such Rule 60(b) motions must be construed as successive petitions.6

While nothing on their face suggests that Rule 60(b) motions are to

be seen as anything other than successive petitions, we need not

decide here whether there are no circumstances under which they

     4
        See 28 U.S.C. § 2244(b)(3) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”).
     5
         Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999).
     6
        See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (stating
that “courts may treat motions that federal prisoners purportedly bring under
Rule 60(b), but which essentially seek to set aside their convictions on
constitutional grounds as § 2255 motions.” (emphasis added)).

                                        3
would not be because relief under Rule 60(b) is, in any event,

unavailable to Hess.




                                           III

                                            A

      We review the district court’s grant of relief under Rule

60(b) for abuse of discretion.7

      Appellant argues that the district court abused its discretion

by awarding relief based upon Rule 60(b)(6) when Hess’ motion was

in fact based upon Rule 60(b)(5).8               We stated in Bailey v. Ryan

Stevedoring Co.9 that “the catch-all clause of Rule 60(b)(6) cannot

be invoked when relief is sought under one of the other grounds

enumerated in Rule 60.”10          However, what was meant in Bailey was

that the first five clauses of Rule 60(b) and the sixth are

mutually exclusive, not that simply moving under Rule 60(b)(5)


      7
           In re Grimland, Inc., 243 F.3d 228, 233 (5th Cir. 2001).
      8
        Rule 60(b) provides 6 alternative grounds for relief: “(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 (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from operation of the
judgment.” Fed. R. Civ. P. 60(b). Hess does not quarrel with the district
court’s conclusion that he does not qualify for relief under Rule 60(b)(5).
      9
           894 F.2d 157 (5th Cir. 1990).
      10
           Id. at 160.

                                            4
prevented the award of relief under Rule 60(b)(6) if the court

ruled that relief was unavailable under (b)(5).11 This is confirmed

by Bailey’s citation to Transit Casualty Co. v. Security Trust

Co.,12 where this court stated that “Rule 60(b)(1) and Rule 60(b)(6)

are not pari passu and are mutually exclusive ....                 The reason for

relief set forth in Rule 60(b)(1) cannot be the basis for relief

under Rule 60(b)(6).”13           It is further evidenced by the treatment

of Bailey in the district courts.14

      Thus,      it   was   not    an   abuse    of   discretion    to   construe

petitioner’s Rule 60(b)(5) motion as a Rule 60(b)(6) motion.



                                           B

      Rule 60(b)(6) provides that a court may act to relieve a party

from a final judgment for “any other reason justifying relief from

the operation of the judgment.”15               It is a catch-all provision,

meant to encompass circumstances not covered by Rule 60(b)’s other




      11
        “[R]elief cannot be had under clause (6) if it would have been available
under the earlier clauses.” Wright and Miller, Federal Practice and Procedure,
§ 2264 at 362 (citing other cases).
      12
           441 F.2d 788 (5th Cir. 1971).
      13
           Id. at 792.
      14
         See, e.g., In re Celano, No. CIV-A-99-1061, 2000 WL 193068 at *3 (E.D.
La. Feb. 15, 2000) (construing Rule 60(b)(5) motion as Rule 60(b)(6) motion after
determining, under Bailey, that relief was unavailable under Rule 60(b)(5)).
      15
           Fed. R. Civ. P. 60(b)(6).

                                           5
enumerated provisions.16          Rule 60(b)(6) motions “will be granted

only if extraordinary circumstances are present.”17

     Under our precedents, changes in decisional law, such as our

opinion     in    Flanagan,      do   not       constitute   the     “extraordinary

circumstances” required for granting Rule 60(b)(6) relief.18                     Hess

responds to this with two arguments.                   First he contends that

Flanagan was not a change in decisional law, but a straightforward

application of circuit precedent, and therefore his circumstances

qualify as “extraordinary.”              Second he points to dicta in our

decision     in   Batts     v.   Tow-Motor       Forklift    Co.19   rejecting    the

proposition that “a change in decisional law can never be an

extraordinary circumstance,” in part because                 “[c]ourts may find a

special circumstance warranting relief where a change in the law

affects a petition for habeas corpus, where notions of finality

have no place.”20

     Hess’ first argument runs afoul of the unfortunate (for him)

fact that Rule 60(b)(6) motions are not substitutes for timely

appeals.     “[A] Rule 60(b) appeal may not be used as a substitute

for the ordinary process of appeal ... particularly [] where, as


     16
          Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).
     17
          Id. (quoting Bailey, 894 F.2d at 160).
     18
        Id. at 747-48; Picco v. Global Marine Drilling, 900 F.2d 846, 851 (5th
Cir. 1990); Bailey, 894 F.2d at 160.
     19
          66 F.3d 743 (5th Cir. 1995).
     20
          Id. at 748 n.6.

                                            6
here, a mistake of law is alleged to be the primary ground of the

appeal.”21    Hess has offered no explanation for his failure to

appeal.    Thus, either way Flanagan is characterized—as a change of

decisional     law   or     as   an   application     of     existing    circuit

precedent—Hess must lose, because if Flanagan is a change of

decisional law he has not demonstrated extraordinary circumstances

and if Flanagan is not a change in decisional law he has offered no

excuse for his failure to appeal the initial denial of habeas

relief.

      Hess’   second      argument    also   fails.    The    dicta     in   Batts

suggesting that the rule for changes in decisional law might be

different in the habeas corpus context because finality is not a

concern is now flatly contradicted by, among other things, AEDPA.22

      We therefore conclude that the district court abused its

discretion in granting relief under Rule 60(b)(6) because Hess did

not demonstrate the requisite “extraordinary circumstances.”23



                                        IV



      21
        Matter of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th
Cir. 1984). See also Wright and Miller, Federal Practice and Procedure, § 2264
at 360-61.
      22
         See, e.g., 28 U.S.C. § 2244(b). This subsection is appropriately titled
“Finality of determination.”
      23
        We need not reach the question of whether, since the Rule 60(b) motion
was filed more than one year after Flanagan and more than two after the petition
was first dismissed, it was not within a “reasonable time,” as required by the
rule. Fed. R. Civ. P. 60(b).

                                        7
     Hess also argues that the district court could have granted

relief under the independent action doctrine.                 The independent

action doctrine gets its name from the portion of Rule 60(b) which

states that the rule “does not limit the power of a court to

entertain an independent action to relieve a party from a judgment,

order, or proceeding.”        “This is not an affirmative grant of power

but merely allows continuation of whatever power the court would

have had to entertain an independent action if the rule had not

been adopted.”24          While Hess did not raise this alternative

argument below, we may consider it as long as the adverse party is

not prejudiced.25

     No relief is available under the independent action doctrine.

The elements of an independent action are

     (1) a judgment which ought not, in equity and good
     conscience, to be enforced; (2) a good defense to the
     alleged cause of action on which the judgment is founded;
     (3) fraud, accident, or mistake which prevented the
     defendant in the judgment from obtaining the benefit of
     his defense; (4) the absence of fault or negligence on
     the part of defendant; and (5) the absence of any
     adequate remedy at law.26

Hess cannot satisfy these requirements—especially (3) and (4).

There was no fraud alleged in this case, and this court has only

awarded relief “on the ground of mistake ... where mutual mistake

is shown and where the party seeking relief is without fault or


     24
          Wright and Miller, Federal Practice and Procedure, § 2868 at 396.
     25
          Johnson Waste Materials v. Marshall, 611 F.2d 593, 601 (5th Cir. 1980).
     26
          Bankers Mortg. Co. v. United States, 423 F.2d 73, 79 (5th Cir. 1970).

                                        8
negligence in the premises.”27      Hess was also negligent in failing

to pursue his remedies on direct appeal.




      27
         West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d
702, 706 (5th Cir. 1954).

                                     9
                                V

     For the foregoing reasons, the district court’s grant of the

writ of habeas corpus is VACATED.    Hess’ motions to dismiss his

counsel, appoint substitute counsel, appear pro se, and for an out-

of-time appeal are all DENIED; and Appellant’s motion to supplement

the record is DENIED AS MOOT.




                                10
