                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0332p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                  X
                                                   -
 GREGORY THOMPSON,
                                                   -
                           Petitioner-Appellant,
                                                   -
                                                   -
                                                        Nos. 06-5744/5770
           v.
                                                   ,
                                                    >
                                                   -
                         Respondent-Appellee. -
 RICKY BELL, Warden,
                                                   -
                                                  N
                     Appeal from the United States District Court
        for the Eastern District of Tennessee of Chattanooga and Winchester.
              Nos. 04-00177; 98-00006—R. Allan Edgar, District Judge.
                               Argued: October 30, 2008
                        Decided and Filed: September 11, 2009
           Before: SUHRHEINRICH, MOORE and CLAY, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Dana Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Jennifer Lynn Smith, OFFICE
OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: Dana Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Jennifer Lynn Smith, OFFICE
OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
        CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.
SUHRHEINRICH, J. (pp. 27-41), delivered a separate opinion concurring in part and
dissenting in part.
                                  _________________

                                       OPINION
                                  _________________

       CLAY, Circuit Judge. Petitioner Gregory Thompson (“Thompson”) appeals the
district court’s dismissal of his habeas petition brought pursuant to 28 U.S.C. § 2254, in
which he seeks relief from execution because of his alleged incompetency. Separately,


                                            1
Nos. 06-5744/5770          Thompson v. Bell                                           Page 2


Thompson appeals the district court’s denial of his motion pursuant to Federal Rule of Civil
Procedure 60(b), in which he moves to re-open his original habeas petition challenging his
conviction and sentence. For the reasons that follow, we AFFIRM in part and REVERSE
in part, and REMAND to the district court for further proceedings.

                                    BACKGROUND

        In 1985, a Coffee County Circuit Court jury in Tennessee found Thompson guilty
of the first-degree murder of Brenda Lane, and following the sentencing phase of the trial,
sentenced Thompson to death. See State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). The
Tennessee courts affirmed Thompson’s conviction on direct and collateral review. In 1998,
Thompson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the
district court denied the petition on February 17, 2000. On January 9, 2003, this Court
affirmed the district court’s dismissal of Thompson’s petition. Thompson v. Bell, 315 F.3d
566, 571 (6th Cir. 2003). On December 1, 2003, the United States Supreme Court denied
Thompson’s certiorari petition, and on January 20, 2004, denied his petition for rehearing.
Bell v. Thompson, 545 U.S. 794, 800 (2005).

I.      Thompson’s Incompetency Petition

        On January 21, 2004, the day after the Supreme Court denied Thompson’s petition
for a rehearing, Tennessee’s attorney general filed a motion with the Tennessee Supreme
Court to set a date for Thompson’s execution. On February 2, 2004, Thompson filed a
response opposing the state’s motion and a petition providing notice of his incompetency to
be executed. On February 25, 2004, the Tennessee Supreme Court set an execution date of
August 19, 2004, but remanded the issue of Thompson’s competency to the trial court.

        Under Tennessee law, set forth in Van Tran v. State, 6 S.W.3d 257, 266 (Tenn.
1999), a prisoner is not competent for execution if he “lacks the mental capacity to
understand the fact of the impending execution and the reason for it.” Under this standard,
a prisoner seeking to be found incompetent for execution in Tennessee has the initial
evidentiary burden to make a “threshold showing” that his present incompetency is
genuinely at issue in order to warrant an evidentiary hearing. Id. at 268-69. In his petition
to the trial court, Thompson requested an evidentiary hearing to determine his competency,
Nos. 06-5744/5770           Thompson v. Bell                                             Page 3


and submitted with his motion his prison medical records, along with the reports of three
mental health experts–John S. Rabun (“Dr. Rabun”), George W. Woods, Jr. (“Dr. Woods”),
and Dr. Faye E. Sultan (“Dr. Sultan”)–who had recently examined him.

        The medical records submitted to the trial court show that Thompson has engaged
in self-destructive acts from the time his incarceration began, including swallowing poison,
cutting his wrist and arms, and burning his hand and face. Prison doctors began prescribing
medication, including Lithium, to control Thompson’s “mood swings” as early as 1988.
(Joint Appendix (“J.A.”) at 314.) A medical report from 1988 indicated that Thompson
heard “voices” and believed he had gotten a “snake bite” on his finger and chest. (J.A. at
316.)   In 1989, prison doctors diagnosed Thompson on two different occasions as
“schizophrenic, paranoid type” and as having “bipolar affective disorder.” (J.A. at 317,
324.) Thompson was given prescriptions for Klonopin and Trilafon when he refused to take
his Lithium prescription. The psychiatrist who diagnosed him at that time reported that
Thompson had been “displaying active evidence of psychosis and mania with marked
grandiosity and delusional thought content.” (J.A. at 324.) Thompson was continually
diagnosed as bipolar or schizophrenic throughout his incarceration. In 1995, a prison doctor
deemed Thompson a “mental health emergency” because his mental illness was causing “an
immediate threat of serious physical harm to the inmate/patient or to others as a result of
[his] violent behavior[.]” (J.A. at 343.) The doctor’s report noted that “voluntary . . .
medication” had been “ineffective[.]” (Id.) According to a physician who evaluated
Thompson in 2001, Thompson had been “violent at times” and had “assaulted staff in the
recent past which appears to be related to his mental illness.” (J.A. at 405.)

        Dr. Rabun, a forensic psychiatrist in the pretrial evaluation unit of the St. Louis
Psychiatric Rehabilitation Center in Missouri, interviewed Thompson for two and one-half
hours on March 17, 2003 and for another two hours on January 19, 2004. Dr. Rabun also
read Thompson’s medical records and court files, and the reports of other mental health
experts who had evaluated him since his incarceration began. Thompson told Dr. Rabun that
he has heard voices intermittently since at least the time of his conviction, and that the voices
become less acute when he takes antipsychotic medication. Thompson also shared a number
of delusions with Dr. Rabun, including that he has written “most of the songs you hear on
the radio;” that he has millions of dollars, gold bars and “a Grammy award” buried near a
Nos. 06-5744/5770          Thompson v. Bell                                            Page 4


church in Thomaston, Georgia; and that the United States Navy owes him back pay dating
back to 1979. (J.A. at 441.)

        Thompson told Dr. Rabun that he “killed Brenda Lane,” that he had been convicted
of first-degree murder, and that he had been sentenced to “death” in connection with the
killing. (J.A. at 442, 447.) Thompson also informed Dr. Rabun that because he was “a
lieutenant in the Navy” and therefore had a right to be tried by a jury of “professionals,” his
conviction should be overturned; only the “Secretary of the Navy” could decide to execute
him. (J.A. at 442, 448.) Thompson said that “once everyone sees I am a lieutenant, the
Secretary of the Navy will take control, and the case will be thrown out.” (J.A. at 442.)
Thompson elaborated that when his buried fortune and Grammy award are discovered, he
will be deemed “rehabilitated.” (Id.) Thompson told Dr. Rabun that he preferred execution
by electrocution, because “I am used to being shocked, every time I touch my TV, I get
shocked, or when I went to a chiropractor in 1982, he twisted my neck, and it felt like a
shock.” (J.A. at 448.)

        Dr. Rabun diagnosed Thompson as schizophrenic, hallucinatory and delusional.
Having reviewed Thompson’s medical records, Dr. Rabun stated that Thompson likely had
been suffering from a psychotic illness for more than ten years, and that his illness was
particularly severe when he did not take antipsychotic medications. Dr. Rabun ruled out “a
physical or neurological disorder” as the cause of Thompson’s condition, and rejected the
possibility that Thompson had been “malingering.” (J.A. at 446.) Dr. Rabun concluded that
in his opinion, Thompson “lacks the mental capacity to understand the fact of the impending
execution and the reason for it.” (J.A. at 449.)

        Dr. Woods, a psychiatrist, examined Thompson on February 17, 2004 for
approximately three hours, and also reviewed Thompson’s medical records, court file and
transcripts from his legal proceedings. Dr. Woods reported that “Thompson believes that
he can not die, and there will be a two-year period in which he will stay alive, even if he
were executed.” (J.A. at 463.) Dr. Woods stated that Thompson “denied . . . that
electrocution would, in fact, eliminate his life.” (Id.) In addition to sharing with Dr. Woods
the same delusions reported by Dr. Rabun, Thompson also told Dr. Woods that “after death
. . . he was going to be in Hawaii.” (Id.) Dr. Woods diagnosed Thompson as a
Nos. 06-5744/5770          Thompson v. Bell                                            Page 5


schizophrenic “suffer[ing] from a severe mental illness with psychotic features.” (Id.) Dr.
Woods noted that Thompson suffers from extreme delusions and hallucinations, even while
compliant with his prescribed medication regimen. Like Dr. Rabun, Dr. Woods concluded
that Thompson is not competent to be executed.

        Dr. Sultan, a clinical psychologist and forensic consultant, submitted a letter dated
February 27, 2004, in which she stated that she had conducted eleven clinical interviews of
Thompson since 1998, with her most recent interview on January 28, 2004. Dr. Sultan stated
her belief that Thompson has been schizophrenic “at least since early adulthood,” and
reported that Thompson “has experienced the delusions, hallucinations, disorganized
thinking, and disorganized speech and behavior that are all characteristic of his particular
psychiatric illness.” (J.A. at 485.) Dr. Sultan stated that she had observed Thompson off his
medication, and concluded that “[i]n a non-medicated state, Mr. Thompson is floridly
psychotic.” (J.A. at 486.) Without medication, she stated, Thompson is “unaware of his
surroundings,” “largely incomprehensible,” and “completely unaware about the reason for
his incarceration, the sentence he had received, or the fact of impending execution.” (Id.)
Even with medication, Thompson “continues to exhibit the major symptoms of
Schizophrenia,” “has no real sense of his actual legal situation” and “lacks the understanding
that the State of Tennessee could legally execute him.” (J.A. at 486-87.) Dr. Sultan cited
the same delusions that the other medical experts noted, including Thompson’s claims of
buried fortune in Georgia, his military rank and his pending re-trial by a “professional” jury.
(Id.) Sultan concluded that Thompson “currently lacks the capacity to understand the fact
of his scheduled execution or the reason for it.” (J.A. at 487.)

        In addition to his medical records and the reports and affidavits from the three
experts, Thompson also presented the trial court with evidence that in 2001 the state had
petitioned a Tennessee court for the appointment of a conservator to make decisions on
Thompson’s behalf regarding his mental health and medical treatment. The conservatorship
petition cited Thompson’s “long history of [b]ipolar [d]isorder and psychic symptoms,” as
well as Thompson’s failure to comply with his medication prescriptions. (J.A. at 414.) In
October 2003, a state court terminated the conservatorship after finding that Thompson was
voluntarily taking his medication.
Nos. 06-5744/5770           Thompson v. Bell                                           Page 6


          On March 8, 2004, the trial court denied Thompson’s incompetency petition without
holding an evidentiary hearing, finding that Thompson had not made the requisite threshold
showing of incompetency to warrant such a hearing. The trial court found that “all three of
the expert reports . . . demonstrate clearly that Thompson is presently aware that he is under
a death sentence for the murder of Brenda Lane under the ‘cognitive’ standard established
by the Supreme Court.” (J.A. at 561.)

          The Tennessee Supreme Court affirmed the trial court on May 12, 2004. The court
found that although the expert reports indicated that Thompson is currently suffering from
“schizophrenia, chronic undifferentiated type, the reports do not present facts indicating that
Thompson is unaware of his impending execution and the reason for it.” Thompson v. State,
134 S.W.3d 168, 179 (Tenn. 2004). The court dismissed Thompson’s documented history
of mental illness as “stale” and “not relevant to the issue of present competency.” Id. at 178.
The court cited Thompson’s ability to recount certain details of his crime, and his statements
showing that he knows about his death sentence for the murder, as evidence that he is aware
of his execution and the reason for it. Id. at 180-81. The court also cited Thompson’s
assertion to Dr. Woods that he will live for two years after his “execution,” and his statement
to Dr. Sultan that it is impossible for him to be executed, as further evidence that Thompson
understands that an execution is going to take place. Id. at 182. The court acknowledged
Thompson’s delusions, but stated that “[t]his Court previously rejected a prisoner’s reliance
on such delusional or unorthodox beliefs as irrelevant to the question of competency for
execution.” Id. at 180.

          On June 14, 2004, Thompson filed a federal habeas petition challenging the state
court’s competency ruling, and on June 21, 2004, the district court stayed Thompson’s
execution pending the outcome of the habeas petition. However, Thompson’s habeas
proceeding concerning his incompetency was stayed when, on June 23, 2004, this Court
amended and reversed its January 9, 2003 ruling affirming the denial of Thompson’s original
habeas petition. The state appealed this Court’s amended decision, and on June 27, 2005,
the Supreme Court held that this Court had abused its discretion by withholding the mandate
of its original judgment for more than five months after the Supreme Court denied rehearing
on Thompson’s petition for writ of certiorari. Bell v. Thompson, 545 U.S. 794, 813-14
(2005).
Nos. 06-5744/5770           Thompson v. Bell                                             Page 7


        Following the Supreme Court’s denial of rehearing on August 22, 2005, the district
court resumed Thompson’s habeas petition based upon incompetency, which, by that time,
had been stayed for more than one year. Thompson argued that because so much time had
passed, he should have the opportunity to update the state courts on his present condition.
On September 16, 2005, the district court lifted the stay of execution so Tennessee could set
a date for Thompson’s execution and Thompson could re-petition the Tennessee Supreme
Court. The Tennessee Supreme Court set an execution date of February 7, 2006, and on
September 23, 2005, Thompson submitted to that court a petition, authorized under the
procedure set forth in Van Tran, 6 S.W.3d at 272, showing that a substantial change in his
condition had occurred since the court’s previous ruling (Thompson’s “substantial change
petition”).

        Thompson argued in his substantial change petition that since he filed his first
incompetency petition, Thompson’s delusions had expanded, and his medications no longer
worked. Thompson included with his petition two affidavits from Dr. Sultan based on her
evaluations of Thompson on July 28, 2005 and November 7, 2005. In the first evaluation,
Dr. Sultan found that Thompson’s “psychological condition had deteriorated” and that it
included “a new set of irrational beliefs.” (J.A. at 1249.) Dr. Sultan reported that Thompson
believed his execution and involvement in Brenda Lane’s murder were all “predestined,” and
that all of the events of his life were written on a note that is “buried at the church” and will
prevent him from being executed when it is discovered. (Id.) Dr. Sultan concluded that
Thompson “can speak about the subject of death on a purely theoretical level but cannot
rationally talk about his own death.” (Id.) Dr. Sultan’s second evaluation confirmed that
Thompson was continuing to deteriorate. Thompson’s substantial change petition also
included a new claim that if Thompson is rendered competent for execution only because of
the medication he takes involuntarily, then the execution is barred by the Eighth
Amendment. On December 13, 2005, the Tennessee Supreme Court denied Thompson’s
petition, finding that no substantial change had occurred. The court did not address
Thompson’s additional Eighth Amendment claim.

        Thompson then resumed his habeas petition based upon incompetency in the district
court. On March 17, 2006, Thompson amended the petition to add the Eighth Amendment
claim that he had just presented to the Tennessee Supreme Court with his substantial change
Nos. 06-5744/5770          Thompson v. Bell                                            Page 8


petition. On May 4, 2006, the district court dismissed Thompson’s petition, finding that the
state courts’ decisions on Thompson’s present competency for execution were neither
contrary to nor an unreasonable application of clearly established federal law, nor an
unreasonable determination of the facts before them. With respect to Thompson’s claim that
it is unconstitutional to execute a prisoner rendered competent through medication, the
district court determined that the claim was both in procedural default and time-barred, and
that Thompson had failed to state a claim in any event. The district court issued a certificate
of appealability with respect to Thompson’s original claim of incompetency. Thompson
timely appealed. On June 20, 2007, this Court expanded the certificate of appealability to
include Thompson’s second incompetency claim as well.

II.     Thompson’s Rule 60(b) Motion

        In his original § 2254 petition brought in 2000 to challenge his conviction and death
sentence, Thompson raised twenty-two ineffective assistance of counsel claims. Four of
those claims were that his trial counsel (1) did not confront and cross-examine a psychiatric
expert testifying for the government, (2) did not object to the prosecutor’s improper
references to Thompson’s failure to testify or present a defense, (3) did not inform the court
about the prosecutor’s racist remark in the presence of the jury, and (4) failed to present
mitigating evidence during the sentencing phase to show he would not be disruptive in
prison. On collateral review, Thompson had appealed these four claims to Tennessee’s court
of criminal appeals, but had not sought discretionary review of these claims with the
Tennessee Supreme Court.

        When the district court dismissed Thompson’s first habeas petition on February 17,
2000, it dismissed these four ineffective assistance claims for procedural default because of
Thompson’s failure to seek discretionary review of the claims. The district court therefore
did not reach the merits of these claims. When Thompson appealed the district court’s
dismissal of his petition, he did not specifically challenge the district court’s procedural
default ruling with respect to these four ineffective assistance claims. On June 28, 2001,
while Thompson’s appeal of the dismissal of his other claims was pending before this Court,
the Tennessee Supreme Court promulgated Tennessee Supreme Court Rule 39 (“TSCR 39”),
which clarified that litigants need not appeal criminal convictions or post-conviction relief
Nos. 06-5744/5770           Thompson v. Bell                                            Page 9


actions to the Tennessee Supreme Court to exhaust their appeals. Thompson did not seek
an expansion of this Court’s certificate of appealability after TSCR 39 was issued. As
already noted, this Court initially affirmed the district court’s dismissal of Thompson’s
original habeas petition in January 2003. Thompson, 315 F.3d at 571. Following this
Court’s attempt to amend its ruling and the Supreme Court’s subsequent reversal, this Court
issued its mandate to the district court to dismiss the petition on December 1, 2005.

         On January 20, 2006, Thompson filed a motion pursuant to Fed. R. Civ. P. 60(b)(6)
in the district court, alleging that the promulgation of TSCR 39 was an extraordinary
circumstance warranting the re-opening of his original habeas petition. On March 27, 2006,
the district court denied the motion, and denied a certificate of appealability. Thompson
timely appealed, and this Court granted a certificate of appealability on June 19, 2007.

         Thompson’s appeals of the district court’s dismissal of his petition based upon his
incompetency and its denial of his Rule 60(b) motion have been consolidated before this
Court.

                                       DISCUSSION

I.       Thompson’s Incompetency for Execution

         A.      Standard of Review

         This Court reviews a district court’s dismissal of a petition brought pursuant to 28
U.S.C. § 2254 de novo, but reviews the district court’s factual findings for clear error. White
v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005).

         Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (1996) (“AEDPA”), a federal court may not grant a writ of habeas
corpus to a state prisoner with respect to any claim adjudicated on the merits unless (1) the
state court’s decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or
(2) the state court’s decision “was based on an unreasonable application of the facts in light
of the evidence presented in the State court proceedings.” § 2254(d)(2). A state court’s
decision is “contrary to” clearly established federal law under § 2254(d)(1) “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law
Nos. 06-5744/5770          Thompson v. Bell                                           Page 10


or if the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An
“unreasonable application” occurs when “the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. A federal habeas court may not find a state court
decision unreasonable “simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously or
incorrectly.”   Id. at 411.   Rather, the state court decision must be an “objectively
unreasonable” application of federal law to be reversed. Id. at 409. A habeas court must
presume the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1).

        B.      Analysis

        “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death
upon a prisoner who is insane.” Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). The
Supreme Court derived this principle from reasons found in the “common law” that presently
“have no less logical, moral, and practical force than they did when first voiced.” Id. at 409.
In Ford, Justice Powell stated in a concurrence to the four-justice plurality opinion that
prisoners are insane for the purposes of execution if they are “unaware of the punishment
they are about to suffer and why they are to suffer it.” Id. at 422. Powell also opined that
a state may, consistent with due process, presume a prisoner who was competent to stand
trial is sane at the time of execution, and “may require a substantial threshold showing of
insanity merely to trigger the hearing process.” Id. at 426. Powell’s concurrence, needed
to create a majority, became the controlling opinion in Ford and “constitutes ‘clearly
established’ law for purposes of § 2554.” Panetti v. Quarterman, 551 U.S. 930, 949 (2007).



        The Panetti Court clarified Ford’s competency-for-execution and “substantial
threshold showing” standards. 551 U.S. at 948-62. In Panetti, the state court had denied the
petitioner an evidentiary hearing despite his incompetency petition including “a letter and
a declaration from . . . a psychologist and a law professor[] who had interviewed petitioner
while on death row,” id. at 938, as well as “references to the extensive evidence of mental
dysfunction considered in earlier legal proceedings,” id. at 950. On habeas review, the
Nos. 06-5744/5770            Thompson v. Bell                                              Page 11


district court found that the petitioner’s motion had been sufficient to meet the “substantial
threshold showing” requirement, and the court therefore held an evidentiary hearing. At the
hearing, four experts testified that the petitioner had a “schizo-affective disorder . . . resulting
in a genuine delusion . . . [that] recast petitioner’s execution as part of spiritual warfare . .
. between the demons and the forces of the darkness and God and the angels and the forces
of light.” Id. at 954 (quotations omitted). According to the petitioner’s experts, the
petitioner understood that the state wanted to execute him for the murders he committed, but
“believe[d] in earnest that the stated reason is a ‘sham’ and the State in truth want[ed] to
execute him ‘to stop him from preaching.’” Id. at 955. The district court denied the
petitioner’s incompetency claim because “the Fifth Circuit test for competency to be
executed requires the petitioner know no more than the fact of his impending execution and
the factual predicate for the execution.” Id. at 941-42. The Court of Appeals affirmed.

        The Supreme Court in Panetti first confirmed that the petitioner had made the
substantial threshold showing when he filed his motion with the state court, and under Ford
was therefore constitutionally entitled to an evidentiary hearing. Id. at 950. The Court cited
both the expert reports and the petitioner’s documented history of mental illness in reaching
this conclusion. Id. However, with respect to the competency standard applied by the lower
courts, the Supreme Court stated that “the Court of Appeals’ standard is too restrictive to
afford a prisoner the protections granted by the Eighth Amendment.” Id. at 956-57. The
Court elaborated:

                The Court of Appeals’ standard treats a prisoner’s delusional belief
        system as irrelevant if the prisoner knows that the State has identified his
        crimes as the reason for his execution. Yet the Ford opinions nowhere
        indicate that delusions are irrelevant to “comprehen[sion]” or “aware[ness]”
        if they so impair the prisoner’s concept of reality that he cannot reach a
        rational understanding of the reason for the execution. If anything, the Ford
        majority suggests the opposite. . . .
                          ....
                . . . The principles set forth in Ford are put at risk by a rule that
        deems delusions relevant only with respect to the State’s announced reason
        for a punishment or the fact of an imminent execution, as opposed to the real
        interests the State seeks to vindicate. We likewise find no support elsewhere
        in Ford, including in its discussions of the common law and the state
        standards, for the proposition that a prisoner is automatically foreclosed
        from demonstrating incompetency once a court has found he can identify the
Nos. 06-5744/5770             Thompson v. Bell                                                 Page 12


          stated reason for his execution. A prisoner’s awareness of the State’s
          rationale for an execution is not the same as a rational understanding of it.
          Ford does not foreclose inquiry into the latter.
                           ....
                  . . . It is therefore error to derive from Ford, and the substantive
          standard for incompetency its opinions broadly identify, a strict test for
          competency that treats delusional beliefs as irrelevant once the prisoner is
          aware the State has identified the link between his crime and the punishment
          to be inflicted.
Id. at 958, 959, 960 (internal citations omitted).

          In Thompson’s case, the Tennessee Supreme Court properly identified the standard
by which to determine competency when it stated Ford’s rule that a prisoner must be able
                                                                      1
to understand the impending execution and the reason for it. Thompson, 134 S.W.3d at
176. Accordingly, Thompson’s petition may only be granted if the state courts
unreasonably applied that standard to the facts of Thompson’s case. See Williams, 529
U.S. at 411. As Panetti makes clear, the state courts’ dismissal of Thompson’s petition
without conducting an evidentiary hearing was an unreasonable application of Ford’s
tenets.

          First, the Tennessee Supreme Court unreasonably applied Ford when it
determined that Thompson’s “severe delusions” are “irrelevant” to a Ford competency
analysis. See Panetti, 551 U.S. at 960 (“It is therefore error to derive from Ford . . . a
strict test for competency that treats delusional beliefs as irrelevant once the prisoner is
aware the State has identified the link between his crime and the punishment to be
inflicted.”). Thompson’s delusions relate to precisely the two concepts that Justice
Powell required a prisoner to understand to be competent: his impending execution and
the reason for it. See Ford, 477 U.S. at 422. With respect to Thompson’s understanding
of his execution, he believes that only the Secretary of the Navy can execute him; that
electrocution will not “eliminate his life,” but that he will live for at least two more years
after being electrocuted; and that he will be re-tried for the crime once a “professional”


          1
          In Coe v. Bell, 209 F.3d 815, 824-26 (6th Cir. 2000), this Court held that Tennessee’s standard
and procedures for determining incompetency for execution follow the dictates of Powell’s concurrence
and are therefore constitutional.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 13


jury is constituted. With respect to Thompson’s understanding of the reason for his
execution, although he seems to know on some level that it is for “kill[ing] Brenda
Lane,” his understanding of the connection between his act of murder and the execution
appears to be cursory at best, since he seems to believe that when his buried riches are
discovered, he will be exonerated.

       Second, the Tennessee Supreme Court’s determination that Thompson’s
documented history of mental illness is equally “irrelevant” to the question of his present
incompetency was also unreasonable. See Panetti, 551 U.S. at 950 (citing petitioner’s
“extensive evidence of mental dysfunction considered in earlier legal proceedings” as
part of the basis for his threshold showing). Although the court was correct that only
Thompson’s present competency was at issue, his medical records are relevant to that
question, particularly to the extent that they demonstrate a chronic mental condition, or
a condition that has only worsened over time. Thompson’s medical history demonstrates
his “long history of bipolar disorder and psychic symptoms,” and that he has been
psychotic and delusional since at least 1989. While this history is not definitive proof
of Thompson’s current incompetency for execution, it is at least probative of the
seriousness of his illness and whether it is chronic.

       Regardless of whether Thompson’s incompetency petition should be granted, his
evidence has at least created a genuine issue about his competency, and therefore
warrants an evidentiary hearing.       Thompson included extensive evidence of his
incompetency in his petition, including (1) the reports of three medical experts, two of
whom had recently examined Thompson on multiple occasions; (2) a long documented
history of delusions and psychosis; and (3) the state’s previous effort to appoint a
conservator to make medical decisions on his behalf–essentially an acknowledgment by
the state that Thompson was mentally ill. The conservatorship was terminated less than
five months prior to Thompson’s competency petition filing, and only because a court
found Thompson had become voluntarily compliant with his drug program. The
evidence Thompson submitted was undoubtedly a “substantial threshold showing,” and
therefore an evidentiary hearing should have been held.
Nos. 06-5744/5770         Thompson v. Bell                                       Page 14


       Because the Tennessee courts unreasonably applied federal law clearly
established by Ford, this Court does not afford AEDPA deference to their dismissal of
Thompson’s petition. “When a state court’s adjudication of a claim is dependent on an
antecedent unreasonable application of federal law, the requirement set forth in
§ 2254(d)(1) is satisfied. A federal court must then resolve the claim without the
deference AEDPA otherwise requires.” Panetti, 551 U.S. at 953. Accordingly, this
Court will remand the action to the district court to conduct Thompson’s incompetency
hearing and decide the merits of his incompetency claim de novo.

II.    Competency Through Involuntary Medication

       Thompson alleges that he is “involuntarily” taking antipsychotic medication, and
that it is unconstitutional to execute him if he is rendered competent through the forced
administration of medication (Thompson’s “chemical competency claim”). Thompson
alleges that, having been forced to take medication in the past through the
conservatorship proceedings, he could be required to take the medication again if he ever
stopped voluntarily taking it. Thompson also contends that he has been subjected to
physical abuse by prison guards when he has refused medication in the past. Finally,
Thompson states that he is currently addicted to the medication, and is now physically
incapable of living without medication. The district court dismissed this claim as
procedurally defaulted, and found that even if it were not procedurally barred, it would
be untimely, and that in any event, Thompson failed to state a claim.

       A.      Procedural Default

       The district court dismissed Thompson’s chemical competency claim for
procedural default because Thompson “fail[ed] to fairly present his claim to the state
courts before offering it as a federal constitutional violation in a habeas proceeding.”
Thompson v. Bell, No. 04-CV-177, 2006 WL 1195892, at *30 (E.D.Tenn. May 4, 2006).
The district court acknowledged that Thompson raised his chemical competency claim
with his substantial change petition, but found that the incompetency-for-execution
procedures set forth in Van Tran prohibited Thompson from raising any other claims
Nos. 06-5744/5770          Thompson v. Bell                                         Page 15


along with his claim that his condition had substantially changed. Id. (citing Van Tran,
6 S.W.3d at 272).

        “In determining whether a procedural default has occurred and, if so, what effect
the default will have on federal review of a state conviction, the district court must
consider whether (1) a state procedural rule exists that applies to the petitioner’s claim,
(2) the petitioner failed to comply with the rule, (3) the state court actually applied the
state rule in rejecting the petitioner’s claim, and (4) the state procedural rule is an
adequate and independent ground upon which the state can rely to deny relief.” Frazier
v. Huffman, 343 F.3d 780, 790 (6th Cir. 2003). “[A] procedural default does not bar
consideration of a federal claim on habeas corpus review unless the last state court
rendering a reasoned opinion in the case ‘clearly and expressly states that its judgment
rests on a state procedural bar.’” Id. at 791 (quoting Harris v. Reed, 489 U.S. 255, 263
(1989)). However, even if the state court failed to reject a claim on a procedural ground,
the petitioner is also in procedural default “by failing to raise a claim in state court, and
pursue that claim through the state’s ‘ordinary appellate review procedures.’” Williams
v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (quoting O’Sullivan v. Boerckel, 526
U.S. 838, 846-7 (1999)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004) (“A
federal court is also barred from hearing issues that could have been raised in the state
courts, but were not[.]”). The corollary to this rule is that where a petitioner raised a
claim in the state court but in violation of a state’s procedural rule, a state court must
expressly reject the claim on that procedural ground for a federal court to deem the claim
defaulted. See Williams, 460 F.3d at 806 (noting that a state court’s expressed rejection
of a petitioner’s claim on procedural basis and petitioner’s complete failure to raise a
claim in state court are the two ways a claim can be in procedural default).

        Thompson formally raised his chemical competency claim in his substantial
change petition to the Tennessee Supreme Court in September 2005; he included the
chemical competency claim with that petition. The Tennessee Supreme Court did not
address the claim in its December 13, 2005 order denying that a substantial change had
occurred.
Nos. 06-5744/5770         Thompson v. Bell                                         Page 16


        According to the district court, Thompson violated a state procedural rule,
purportedly set forth in Van Tran, that a petitioner filing a substantial change petition
may not raise any claims for the first time with his substantial change petition. Yet the
only statement in Van Tran regarding a petitioner’s motion for a finding of substantial
change is as follows:

        If a prisoner is found to be competent, subsequent Ford claims will be
        disallowed unless the prisoner, by way of a motion for stay, provides this
        Court with an affidavit from a mental health professional showing that
        there has been a substantial change in the prisoner’s mental health since
        the previous determination of competency was made and the showing is
        sufficient to raise a substantial question about the prisoner’s competency
        to be executed.
Van Tran, 6 S.W.3d at 272. Although the district court concluded from this statement
that Tennessee forbids a petitioner from bringing any new claims related to his
incompetency for execution along with his substantial change petition, nothing in Van
Tran explicitly states such a rule; in fact, the reference in Van Tran to “subsequent Ford
claims,” in the plural, indicates that Van Tran anticipated that other incompetency claims
would be brought in addition to a claim of substantial change. Regardless, even if such
a limitation existed, the Tennessee Supreme Court, in denying Thompson’s petition for
a finding of substantial change, did not refer to it. The court rejected Thompson’s
argument that substantial change in his mental condition had occurred, and did not
address or even mention Thompson’s chemical competency argument.

        The district court, in finding procedural default, cited Castille v. Peoples, 489
U.S. 346, 351 (1989), for the proposition that a claim is not fairly presented to a state
court where the claim is presented “in a procedurally inappropriate manner which
renders consideration on its merits unlikely.” Thompson v. Bell, No. 04-CV-177, 2006
WL 1195892, at *30 (E.D. Tenn. May 4, 2006).                However, the district court
misinterpreted Castille, which held only that, where a habeas petitioner had the
opportunity to raise a claim in the state courts on direct appeal but only raised it for the
first time on discretionary review, such a claim is not fairly presented. 489 U.S. at 351;
see also Clinkscale v. Carter, 375 F.3d 430, 440 (6th Cir. 2004) (finding that Castille’s
Nos. 06-5744/5770         Thompson v. Bell                                         Page 17


holding did not require a finding of procedural default because, “[u]nlike the petitioner
in Castille, Clinkscale raised his [constitutional] claim on direct appeal, in which there
were no special limitations on the ability of the [state court] to reach the merits of that
claim”) (emphasis added). Certainly, every time a claim is presented to a state court in
violation of its own procedural rule, it is “unlikely” that the state court would consider
its merits, but we nevertheless require a state court to expressly deny such a claim based
on the procedural rule in order for the claim to be in procedural default. See Caldwell
v. Mississippi, 472 U.S. 320, 327 (1985) (“The mere existence of a basis for a state
procedural bar does not deprive [federal courts] of jurisdiction; the state court must
actually have relied on the procedural bar as an independent basis for its disposition of
the case.”). In Thompson’s case–where it is unclear that there even was a state rule that
barred him from raising his chemical competency claim–an express statement from the
state court is even more necessary.

        Because Thompson indisputably presented his chemical competency petition to
the Tennessee Supreme Court in his substantial change petition, this is not a case where
we can find procedural default in spite of that court’s failure to reject the claim on a
procedural ground. See Williams, 460 F.3d at 806. Because the state court did not
“clearly and expressly state[] that its judgment rests on a state procedural bar,” the rules
of procedural default did not bar the district court from considering the claim. See
Frazier, 343 F.3d at 790. Thus, Thompson’s chemical competency claim is not
procedurally barred.

        B.      Statute of Limitations

        Respondent argues, and the district court found, that even if Thompson did not
procedurally default on his chemical competency claim, his claim is still time-barred.
With exceptions not relevant here, federal habeas petitioners in custody pursuant to a
judgment in a state court must file their petitions within one year of the date judgment
becomes final on direct review or the time to seek such review expires. 28 U.S.C.
§ 2244(d)(1)(A). Because Thompson presented his chemical competency claim to the
Tennessee Supreme Court on September 23, 2005, in his substantial change petition, the
Nos. 06-5744/5770         Thompson v. Bell                                       Page 18


state courts’ judgment with respect to the chemical competency claim first became final
on December 13, 2005, when the Tennessee Supreme Court denied Thompson’s
substantial change petition without addressing his chemical competency claim.
Thompson amended his federal habeas petition to include his chemical competency
claim on March 17, 2006, well before the one-year limitations period expired.
Accordingly, Thompson’s chemical competency claim is not barred by the statute of
limitations.

       C.      Failure to State a Claim

               1.      Standard of Review

       “If deference to the state court is inapplicable or inappropriate, we ‘exercise our
independent judgment’ and review the claim de novo.” McKenzie v. Smith, 326 F.3d
721, 727 (6th Cir. 2003). “Where the state court has not addressed or resolved claims
based on federal law, most courts, including this one, have held that the decision is not
an ‘adjudication on the merits.’ Thus, a federal habeas court reviews such unaddressed
claims de novo.” Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005). Because the
Tennessee state courts did not adjudicate Thompson’s chemical competency claim on
the merits, there is no state court decision to which this Court can defer pursuant to 18
U.S.C. § 2254(d). Accordingly, this Court reviews the district court’s adjudication of
Thompson’s chemical competency claim de novo. In reviewing the district court’s
determination that Thompson failed to state a claim, this Court accepts Thompson’s
factual allegations supporting the claim as true. See Lewis v. ACB Bus. Servs., Inc., 135
F.3d 389, 405 (6th Cir. 1998).

               2.      Analysis

       Neither the Supreme Court nor the Sixth Circuit has squarely addressed whether
the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits
rendering a prisoner competent for execution through involuntary medication. However,
in addressing previous Due Process claims, the Supreme Court has recognized that
mentally ill state prisoners have a “significant liberty interest” in avoiding unwanted
Nos. 06-5744/5770         Thompson v. Bell                                       Page 19


antipsychotic drugs. Washington v. Harper, 494 U.S. 210, 221-22 (1990); Riggins v.
Nevada, 504 U.S. 127, 134-35 (1992). Considering whether a state may forcibly
medicate a defendant to render him competent to stand trial, the Supreme Court has held
that a state may do so only if the treatment is (1) “medically appropriate, i.e., in the
patient’s best medical interest in light of his condition;” (2) “substantially unlikely to
have side effects that may undermine the fairness of the trial;” and (3) “necessary
significantly to further important governmental trial-related interests,” given less
intrusive alternatives. Sell v. United States, 539 U.S. 166, 179-81 (2003) (emphasis in
original). Although the Court in Sell found forcible medication permissible in that case
because “important governmental interests are at stake” when the state tries to bring a
defendant to trial, the Court added: “Special circumstances may lessen the importance
of that interest. The defendant’s failure to take drugs voluntarily, for example, may
mean lengthy confinement in an institution for the mentally ill–and that would diminish
the risks that ordinarily attach to freeing without punishment one who has committed a
serious crime.” Id. at 180. Thus, the Sell Court reiterated the importance of a prisoner’s
interest in avoiding forcible medication, and signaled that it may be unconstitutional to
medicate a prisoner already destined for a lengthy confinement just to render the
prisoner competent for legal proceedings.

       Although the Supreme Court in Harper, Riggins and Sell addressed due process
challenges and not Eighth Amendment claims, the logical inference from these holdings
is that subjecting a prisoner to involuntary medication when it is not absolutely
necessary or medically appropriate is contrary to the “evolving standards of decency”
that underpin the Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 100-01 (1958)
(“[T]he words of the [Eighth] Amendment are not precise, and . . . their scope is not
static. The Amendment must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society.”). Moreover, the main reason why Justice
Powell viewed the execution of insane prisoners as “cruel”–that their inability to
understand the reason for their punishment robs them of “the opportunity to prepare,
mentally and spiritually, for their death,” Ford, 477 U.S. at 421–applies with equal force
to those who have been rendered chemically competent involuntarily. If forced
Nos. 06-5744/5770              Thompson v. Bell                                                  Page 20


medication reduces a prisoner’s delusions and controls his outward behavior, but does
not improve his understanding of his impending death or his ability to prepare for it, it
is quite possible that the prisoner cannot be executed under the principles of Ford.

         The concurring opinion, certain that prior Supreme Court precedent has already
precluded such a claim, impermissibly ties loose strands of prior precedents together to
reach its conclusion. Essentially, our concurring colleague surmises that because the
Supreme Court has held that forced medication is not inherently unconstitutional, and
that executions are not inherently unconstitutional, the execution of a prisoner rendered
competent through medically appropriate forced medication must be constitutional. This
leap of logic ignores the Supreme Court’s repeated recent willingness to deem
unconstitutional the execution of prisoners who the state previously had a legitimate
right to execute–including those with mental or developmental deficiencies. See, e.g.,
Atkins v. Virginia, 536 U.S. 304 (2002) (prohibiting the execution of mentally retarded
defendants); Roper v. Simmons, 543 U.S. 551, 563 (2005) (applying Atkins to prohibit
execution of prisoners who were under eighteen years of age at the time of their capital
crimes). We simply do not share the concurring opinion’s certainty that, given the
Eighth Amendment’s “evolving standards of decency,” Trop, 356 U.S. at 100-01
(emphasis added), a state’s right to execute a prisoner constitutionally hinges on
administering pharmaceuticals that give an otherwise incompetent prisoner the
appearance of competence.2

         Regardless, in this case, it is not necessary to resolve these difficult questions,
because regardless of whether the Eighth Amendment prohibits the execution of a
prisoner rendered competent through the forced administration of medication, the district
court did not err in holding that Thompson failed to state a claim. Even accepting all of
Thompson’s allegations as true, he is not being forcibly medicated right now. Although
he may be right that the state would forcibly medicate him if he stopped taking his


         2
           The concurring opinion mischaracterizes our view as stating that the execution of those rendered
chemically competent “likely” violates the Eighth Amendment. Concurring Op. at 28. We do not go so
far. Rather, we note only that it is possible, under some circumstances, that such an act would amount to
a constitutional violation for the reasons discussed.
Nos. 06-5744/5770              Thompson v. Bell                                                   Page 21


medication voluntarily, those are not the facts he presents to us. Thompson’s argument
that his medication is involuntary because he is addicted to the drugs may be accurate
from a physiological perspective, but does not amount to an allegation that the state is
ordering him to take medication. Because this appeal does not present the case of a
prisoner who may only be competent by way of forced medication, this Court will leave
the question of whether executing the “chemically competent” constitutes cruel and
unusual punishment for another day. The district court’s dismissal of Thompson’s
chemical competency claim is affirmed, without prejudice to Thompson raising a
chemical competency claim in the future should he be forcibly medicated.3

III.     Thompson’s Rule 60(b)(6) Motion

         In the appeal of his other claims, Thompson argues that the Tennessee Supreme
Court’s promulgation of TSCR 39, which clarified that criminal defendants do not need
to appeal their post-collateral relief actions to the Tennessee Supreme Court to exhaust
their claims, demonstrates that the district court erred when it dismissed four of his
ineffective assistance claims as procedurally defaulted. Thompson argues that because
the district court erred, it abused its discretion in denying his subsequent motion pursuant




         3
           The concurring opinion also argues that Thompson’s chemical competency claim is actually an
attack on his original conviction and sentence, and therefore should have been barred as a second or
successive petition prior to our reaching the merits. As should be obvious, because the state was not
forcibly medicating Thompson or even considering doing so at the time of his conviction and sentence,
a claim challenging his competence through forced medication would not have been ripe. See Warshak
v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (claim unripe for judicial review unless “it arises in a
concrete factual context and concerns a dispute that is likely to come to pass”). Remarkably, although our
concurring colleague agrees with us that even now, Thompson has failed to state a claim because he is not
being forcibly medicated, he nevertheless believes that Thompson would somehow have been able to state
a claim at his original sentencing, despite not being forcibly medicated at that time. How the concurring
opinion can in one breath agree that the necessary factual predicate to Thompson’s claim has not occurred,
and in another breath argue that Thompson never needed any such factual circumstances to occur because
his claim is a purely “legal” one, is beyond comprehension.
          As the concurrence at least recognizes, the only appellate court to have addressed a chemical
competency claim voted 10-1 that a chemical competency claim arises only when the defendant is subject
to a forced medication order and execution is imminent. See Singleton v. Norris, 319 F.3d 1018, 1027 (8th
Cir. 2003) (Loken, J., concurring in the judgment but dissenting on that ground). This Court agrees with
that holding, and for this reason, the concurring opinion’s statement that “Thompson was under a sentence
of death and claims to have been involuntarily medicated back in 1995,” Concurring Op. at 35, n.4, is
irrelevant, since Thompson’s execution was not imminent at that time. Moreover, even if Thompson has
asserted that he was forcibly medicated in 1995, he does not make such an assertion before this Court on
appeal.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 22


to Fed. R. Civ. P. 60(b)(6) to re-open his original habeas petition with respect to those
claims. We agree.

       A.      Standard of Review

       This Court reviews the district court’s denial of a motion pursuant to Rule
60(b)(6) for abuse of discretion. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir.
2006). “Abuse of discretion is defined as a definite and firm conviction that the trial
court committed a clear error of judgment.” Burrell v. Henderson, 434 F.3d 826, 831
(6th Cir. 2006) (quotation marks and citation omitted). “Rule 60(b) proceedings are
subject to only limited and deferential appellate review.” Gonzalez v. Crosby, 545 U.S.
524, 535 (2005).

       B.      Analysis

       “On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding for the following
reasons: . . . (6) any other reason justifying relief from the operation of the judgment.”
Fed R. Civ. P. 60(b)(6). “[R]elief under Rule 60(b)(6) . . . requires a showing of
‘extraordinary circumstances,’” Gonzalez, 545 U.S. at 536, and must “be made within
a reasonable time,” Fed. R. Civ. P. 60(c)(1). “[T]he decision to grant Rule 60(b)(6)
relief is a case-by-case inquiry that requires the trial court to intensively balance
numerous factors, including the competing policies of the finality of judgments and the
incessant command of the court’s conscience that justice be done in light of all the
facts.” Blue Diamond Coal Co. v. Trustees of UMWA Combined Benefits Fund, 249
F.3d 519, 529 (6th Cir. 2001) (quotation marks and citation omitted).

       We recently found in In re Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004) (en
banc) (“Abdur’Rahman I”) that the promulgation of TSCR 39 was an extraordinary
circumstance. Although the Supreme Court subsequently vacated that opinion in Bell
v. Abdur’Rahman, 545 U.S. 1151 (2005) (Abdur’Rahman II), the rationale behind our
finding in Abdur’Rahman I remains valid. In Abdur’Rahman I, the district court,
similarly to the district court in this case, had dismissed the petitioner’s habeas claims
Nos. 06-5744/5770         Thompson v. Bell                                        Page 23


as procedurally defaulted for failure to seek discretionary review in the Tennessee
Supreme Court. Abdur’Rahman I, 392 F.3d at 177. In Abdur’Rahman I, this Court
reversed the district court and held that the promulgation of TSCR 39 was an
extraordinary circumstance warranting relief under Rule 60(b)(6), because the new rule
indicated that the district court had failed to recognize a state’s own procedural
rule–thereby undermining the principle of comity on which AEDPA is based. Id. at 186.
In Gonzalez v. Crosby, 545 U.S. 524, 533 (2005), the Supreme Court addressed another
habeas petitioner’s Rule 60(b)(6) motion, finding in that case that the petitioner was not
entitled to relief. The Court found that a recent Supreme Court decision, which changed
the federal courts’ interpretation of the statute of limitations in 28 U.S.C. § 2244(d)(2)
so as to render timely the petitioner’s previously time-barred claims, was not an
extraordinary circumstance warranting relief pursuant to Rule 60(b)(6). Id. at 536-37.
The Gonzalez Court noted that “not every interpretation of the federal statutes setting
forth the requirements for habeas provides cause for reopening cases long since final.”
Id. at 536. The Supreme Court then vacated this Court’s holding in Abdur’Rahman I so
this Court could reconsider the case in light of Gonzalez. Abdur’Rahman II, 545 U.S.
1151 (2005). This Court remanded the case to the district court, which found that the
promulgation of TSCR 39 was still an extraordinary circumstance after Gonzalez.
Abdur-Rahman v. Bell, No. 3:96-0380, 2008 WL 2002572, at *4 (M.D. Tenn. May 7,
2008).

         We agree that the enactment of TSCR 39 is an extraordinary circumstance, and
that nothing in the Supreme Court’s opinion in Gonzalez undermined this Court’s
reasoning in Abdur’Rahman I. Unlike the Supreme Court in Gonzalez, which found that
a change in federal decisional law by itself was not an extraordinary circumstance, this
Court in Abdur’Rahman I found the enactment of TSCR 39 to be an extraordinary
circumstance because refusing to recognize it “would disserve the comity interests
enshrined in AEDPA by ignoring the state court’s view of its own law.” 392 F.3d at
187. A federal court’s respect for another state’s law was not at issue in Gonzalez, in
which the Rule 60(b) motion was based solely on a change in federal decisional law
interpreting a federal statute. See also Blue Diamond, 249 F.3d at 524 (“[A] change in
Nos. 06-5744/5770            Thompson v. Bell                                               Page 24


decisional law is usually not, by itself, an ‘extraordinary circumstance’ meriting Rule
60(b)(6) relief.”) (emphasis supplied). Because this Court’s reasoning in Abdur’Rahman
I is still valid after Gonzalez, today we reaffirm our previous holding that a motion based
upon the promulgation of TSCR 39 is an extraordinary circumstance warranting relief
under Rule 60(b)(6).

        However, a movant must also file a Rule 60(b)(6) motion “within a reasonable
time.” Fed. R. Civ. P. 60(c)(1). Although the Federal Rules do not mandate the specific
time by which the motion must be filed, a movant’s lack of diligence can detract from
the extraordinariness of the circumstance. Gonzalez, 545 U.S. at 537-38. Whether the
timing of the motion is reasonable “ordinarily depends on the facts of a given case
including the length and circumstances of the delay, the prejudice to the opposing party
by reason of the delay, and the circumstances compelling equitable relief.” Olle v.
Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990).

        In this case, although Thompson did not bring his Rule 60(b) motion until
January 20, 2006–more than four years after the promulgation of TSCR 39–the reasons
for Thompson’s delay are understandable. First, when the Tennessee Supreme Court
enacted TSCR 39 in June 2001, it would have been pointless for Thompson to file a Rule
60(b) motion because at that time, Rule 60(b) motions were deemed equivalent to
successive habeas petitions.4 See, e.g., McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th
Cir. 1996). In Abdur’Rahman I, this Court held for the first time that a Rule 60(b)
motion which seeks to reopen a final judgment for reasons other than the merits of the
petitioner’s substantive claim is not the equivalent of a successive habeas petition. 392
F.3d at 182.

        Although Thompson theoretically could have filed his Rule 60(b) motion
immediately after Abdur’Rahman I was published, the appeal of his habeas petition was
still pending on that date. This Court did not issue its mandate to the district court to


        4
           We note that Thompson did inform this Court about the enactment of TSCR 39 by filing a
citation of supplemental authority pursuant to Fed. R. App. P. 28(j) on August 1, 2001, prior to oral
argument on his appeal of his habeas petition.
Nos. 06-5744/5770          Thompson v. Bell                                         Page 25


dismiss Thompson’s habeas petition until December 1, 2005; prior to that date, the
district court would not have had jurisdiction to hear his Rule 60(b) motion. See Pittock
v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993) (Generally, “a district court no
longer has jurisdiction over an action as soon as a party files a notice of appeal[.]”).
Because Thompson filed his Rule 60(b) motion less than two months after we issued the
mandate in his case, which he had been actively appealing until that time, we cannot find
a lack of diligence that would detract from the extraordinary circumstance reflected in
the promulgation of TSCR 39.

        We recognize that where the judgment the movant seeks to reopen has already
become final, courts are often reluctant to find an abuse of discretion in a district court’s
denial of the Rule 60(b) motion. See, e.g., Stokes v. Williams, 475 F.3d 732, 736-37 (6th
Cir. 2007). However, we must also heed the Supreme Court’s admonition that
“[c]onventional notions of finality of litigation have no place where life or liberty is at
stake and infringement of constitutional rights is alleged.” Sanders v. United States, 373
U.S. 1, 8 (1963). Courts addressing Rule 60(b) motions must consider the equities, and
“the incessant command of the court’s conscience that justice be done in light of all the
facts.” Blue Diamond, 249 F.3d at 529; see also Matarese v. Lefevre, 801 F.2d 98, 106
(2d Cir. 1986) (Rule 60(b) “confers broad discretion on the trial court to grant relief
when appropriate to accomplish justice; it constitutes a grand reservoir of equitable
power to do justice in a particular case. . . . and should be liberally construed when
substantial justice will thus be served.”) (internal citations and quotations omitted). In
this case, the finality of the judgment against Thompson must be balanced against the
more irreversible finality of his execution, as well as the serious concerns about
ineffective assistance that caused this Court so much angst upon its prior consideration
of Thompson’s petition. Because Thompson should be heard on the merits of his four
remaining ineffective assistance claims, we reverse the district court’s denial of
Thompson’s Rule 60(b) motion.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 26


                                    CONCLUSION

       For the reasons set forth above, we REVERSE the district court’s denial of
Thompson’s Rule 60(b) motion and his habeas petition based upon incompetency, and
we REMAND for further proceedings. On remand, the district court shall first rule on
the merits of Thompson’s remaining ineffective assistance claims, and shall only address
the incompetency question if it rejects the ineffective assistance claims on their merits.
If the court rejects the ineffective assistance claims, it must then conduct an evidentiary
hearing to determine Thompson’s competency for execution. The district court’s
dismissal of Thompson’s chemical competency claim is AFFIRMED.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 27


                ______________________________________________

                 CONCURRING IN PART, DISSENTING IN PART
                ______________________________________________

       SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part. The
Tennessee Supreme Court erred in affirming the Tennessee trial court’s decision to reject
Thompson’s claim that he is incompetent to be executed without holding an evidentiary
hearing on his sanity.      Thompson’s well-documented history of delusions and
psychosis–evidenced by, inter alia, three medical experts’ opinions, prison records
spanning almost two decades, and conservatorship proceedings–is relevant in
determining whether Thompson is presently aware of his impending execution and the
reason for it. See Ford v. Wainwright, 477 U.S. 399, 422 (1986). Accordingly, I concur
with the majority’s conclusion in Section I of the Discussion, supra, that Thompson has
made a “substantial threshold showing” of insanity sufficient to warrant an evidentiary
hearing on Thompson’s present competency to be executed. See Panetti v. Quarterman,
127 S. Ct. 2842, 2862 (2007); Ford, 477 U.S. at 426. A remand to the district court for
an evidentiary hearing on Thompson’s present competency is required.

       I also agree with the majority’s conclusion in Section II, supra, that Thompson
has failed to state a claim that he is presently being involuntarily medicated in violation
of the Eighth Amendment (Thompson’s “chemical competency claim”). Because the
issue of chemical competency is admittedly not properly before us, the majority’s
discussion on the issue is improper and dicta.     However, as the majority has openly
done so, I feel compelled to at least briefly explain why, in Section I infra, the view
taken by the majority is inconsistent with Supreme Court precedent.          Also, I write
separately to express, in Section II infra, that Thompson’s decision to raise his “chemical
competency claim” in his substantial change petition to the Tennessee Supreme Court
was procedurally inappropriate. I also contend that Thompson’s chemical competency
claim is actually a collateral attack on his sentence and may not be raised in a second or
successive habeas petition.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 28


       Finally, as demonstrated in Section III infra, the majority clearly erred in holding
that Thompson’s Rule 60(b) motion fails because he has not brought his motion within
a “reasonable time” as required under FED. R. CIV. P. 60(c)(1).

                                             I.

       As the majority explains, Thompson formally raised his chemical competency
claim for the first time in his substantial change petition to the Tennessee Supreme Court
in September 2005. The district court found the claim procedurally defaulted because
adding the claim in the substantial change petition was “procedurally inappropriate.”
Thompson v. Bell, No. 04-CV-177, 2006 WL 1195892, at *30 (E.D. Tenn. May 4, 2006).
The majority explains that because the Tennessee Supreme Court did not expressly reject
the claim based upon a state procedural violation, the claim is not procedurally
defaulted. Even if the majority is right, it does not matter because, as the majority
expressly holds, Thompson has failed to state a claim that the state is involuntarily
medicating him.

       Thus, even though the claim is not properly before us, the majority nonetheless
proceeds to express its view on the legal issue of whether a state can execute a prisoner
rendered competent through involuntary medication. Given the importance of this
question, I feel it necessary to point out why the majority’s view of this issue–that it is
likely “cruel” to execute those who have been rendered chemically competent
involuntarily–is inconsistent with Supreme Court precedent.

       As the majority correctly notes, there is no Supreme Court decision directly
addressing whether the Eighth Amendment forbids a state from involuntarily medicating
an insane prisoner to restore his competency for execution.           However, Ford v.
Wainwright and several Supreme Court cases addressing Fourteenth Amendment
challenges to involuntary medication make clear that involuntary medication is not
inherently unconstitutional and is actually compelled in certain circumstances.

       First and foremost, the Supreme Court has deemed the death penalty
constitutional. Gregg v. Georgia, 428 U.S. 153, 177 (1976); Furman v. Georgia, 408
Nos. 06-5744/5770              Thompson v. Bell                                                 Page 29


U.S. 238, 241 (1972).1 In Ford v. Wainwright, the Supreme Court addressed the Eighth
Amendment’s limitation on a state’s power to execute the insane. The Court found the
proscription on executing the insane carried over from England and took hold in our
common law at the time the Bill of Rights was adopted. Ford, 477 U.S. at 405, 407-09.
The Court recognized many divergent theories for barring the execution of the insane,
including moral, theological, and ethical arguments, but the Court held one thing for
certain: “The Eighth Amendment prohibits the State from inflicting the penalty of death
upon a prisoner who is insane.” Ford, 477 U.S. at 410. In his concurrence, Justice
Powell offered a narrower opinion: “I would hold that the Eighth Amendment forbids
the execution only of those who are unaware of the punishment they are about to suffer
and why they are to suffer it.” Id. at 422 (Powell, J., concurring). Without a majority
opinion, Justice Powell’s opinion controlled and set the standard for determining
competency for execution. Panetti, 127 S. Ct. at 2856. While Ford limits a state’s right
to executing the insane, it is an affirmation that the death penalty itself is constitutional.

         In Washington v. Harper, the Court considered the question of what limit the Due
Process Clause places on a state’s power to administer antipsychotic drugs to a mentally
ill prisoner against his will.           Harper was a state prisoner who suffered from
schizophrenia.       Harper, 494 U.S. at 214.             When he stopped voluntarily taking
antipsychotic medications, the state began medicating him against his will under a state
law authorizing involuntary medication “to inmates who are . . . gravely disabled or
represent a significant danger to themselves or others.” Id. at 226. In resolving Harper’s
due process challenge to the forced medication, the Court explained that a prison inmate
possesses a significant liberty interest in avoiding the unwanted administration of
antipsychotic drugs. Id. at 222. At the same time, the Court cautioned that the outer


         1
           Indeed, the Supreme Court has recognized that the government has an essential interest in
carrying out a lawfully imposed sentence. See Moran v. Burbine, 475 U.S. 412, 426 (1986) (recognizing
“society’s compelling interest in finding, convicting, and punishing those who violate the law”). Further,
“‘a State retains a significant interest in meting out a sentence of death in a timely fashion.’” Cooey v.
Strickland, 479 F.3d 412, 419 (6th Cir. 2007) (quoting Nelson v. Campbell, 541 U.S. 637, 644 (2004)).
That interest “is at its greatest in the narrow class of capital murder cases in which aggravating factors
justify imposition of the death penalty,” Singleton v. Norris, 319 F.3d 1018, 1025 (8th Cir. 2003) (en
banc), and accordingly must also be keenly weighed against an inmate’s interest in avoiding involuntary
medication.
Nos. 06-5744/5770            Thompson v. Bell                                               Page 30


limits of that liberty interest must be determined within the context of the prisoner’s
confinement because the state has a counterbalancing interest “in providing appropriate
medical treatment to reduce the danger that an inmate suffering from a serious mental
disorder represents to himself or others.” Id. at 236. Thus, the Court held that, in a
prison setting, “the Due Process Clause permits the State to treat a prison inmate who
has a serious mental illness with antipsychotic drugs against his will, if the inmate is
dangerous to himself or others and the treatment is in the inmate’s medical interest.” Id.
at 227. Harper thereby affirmed a state’s right to impose involuntary medication under
certain conditions.

        Applying Harper in the pretrial context, the Court in Riggins v. Nevada
considered the state’s authority to involuntarily medicate a prisoner to render him
competent to stand trial on serious criminal charges. Riggins v. Nevada, 504 U.S. 127
(1992). The Riggins Court reiterated that an individual has a liberty “interest in avoiding
the involuntary administration of antipsychotic drugs,” id. at 134, and explained that
only a state’s “essential” or “overriding” interest could overcome it, id. at 134, 135. The
Court explained that rendering an accused competent to stand trial for murder would be
one such interest, and held that involuntary medication would not violate due process if
the state demonstrated that “treatment with antipsychotic medication was medically
appropriate and, considering less intrusive alternatives, essential for the sake of
Riggins’[s] own safety or the safety of others.” Id. at 135.2

        The Supreme Court subsequently applied the framework erected by Harper and
Riggins in Sell v. United States, 539 U.S. 166 (2003), where the Court articulated a four-
part analysis courts must use in determining whether involuntary medication may be
used to render a defendant competent to stand trial. The government must establish, by
clear and convincing evidence: (1) the existence of an “important” governmental
interest; (2) that involuntary medication “will significantly further” that important
interest; (3) that involuntary medication is “necessary” to furthering the important

        2
           However, because Riggins was involuntarily medicated without “any determination of the need
for [antipsychotic medication] or any findings about reasonable alternatives,” the Court found a due
process violation in that case. Riggins, 504 U.S. at 135, 136.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 31


interest; and (4) that the administration of the drugs is “medically appropriate, i.e., in
the patient’s best medical interest in light of his medical condition.” Id. at 180-81.

       The Sell Court emphasized that the four-part analysis applies when a court “is
seeking to determine whether involuntary administration of drugs is necessary
significantly to further a particular governmental interest, namely, the interest in
rendering the defendant competent to stand trial.” Id. at 181. However, the Sell Court
also explained that a court need not conduct the four-part analysis “if forced
administration is warranted for a different purpose, such as the purposes set out in
Harper related to the individual’s dangerousness, or purposes related to the individual’s
own interests where refusal to take drugs puts his health gravely at risk.” Id. (citing
Harper, 494 U.S. at 225-26). Guided by Sell, this Court now applies the four-part Sell
standard when the involuntary medication is requested to restore competency to a
pretrial detainee and the pretrial detainee is not a danger to himself or others, but this
Court applies the Harper standard if he does pose a danger to himself or others. See,
e.g., United States v. Green, 532 F.3d 538, 545 & n.5 (6th Cir. 2008).

       Additionally, states are constitutionally required to provide medical care to
inmates.   Estelle v. Gamble, 429 U.S. 97, 103 (1976) (holding that the Eighth
Amendment’s prohibition against cruel and unusual punishment, made applicable to the
states through the Fourteenth Amendment’s Due Process Clause, requires the state to
provide adequate medical care to prison inmates). That duty exists as long as the
prisoner is confined and is not extinguished or diminished because the inmate may be
under sentence of death. See, e.g., Singleton, 319 F.3d at 1026 (reasoning that “the best
medical interests of the prisoner must be determined without regard to whether there is
a pending date of execution”). Indeed, in this Circuit, we hold the state accountable for
“deliberate indifference”–a violation of the Eighth Amendment–if the state culpably fails
to treat an inmate’s serious medical need. See, e.g., Harrison v. Ash, 539 F.3d 510, 518
(6th Cir. 2008); see also Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir.
2004) (defining a serious medical need as “one that has been diagnosed by a physician
Nos. 06-5744/5770              Thompson v. Bell                                                 Page 32


as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention”).

         In short, as outlined above, the state has the following rights and obligations vis-
a-vis prisoners: The state is obligated under the Eighth Amendment and the Due Process
Clause to attend to a prisoner’s serious medical needs. Estelle, 429 U.S. at 103. The
state is also not restricted by the Due Process Clause from involuntarily medicating a
prisoner if he is a danger to himself or others. Harper, 494 U.S. at 223. The state is
further permitted under the Constitution to medicate a defendant to render him
competent to stand trial. Sell, 539 U.S. at 180-81. And the state may carry out the death
penalty, Baze v. Rees, 128 S. Ct. 1520, 1529 (2008), so long as the prisoner is competent
on the eve of his execution, Ford, 477 U.S. at 422.

         It follows, then, that if all of the predicate acts of carrying out a valid death
sentence on a mentally ill inmate are either constitutionally required or permitted, and
the death penalty itself is constitutional, the state’s imposition of the death penalty to an
inmate rendered competent via involuntary medication must also be constitutional. In
other words, it is illogical to conclude that while the state has a duty to provide an inmate
with medical care and can also render the prisoner competent to stand trial and possibly
receive the death penalty, the state is barred from carrying out the death penalty if that
medical care successfully reduces the symptoms of a mental illness and, as a result, the
inmate regains his competency.

         The en banc Eight Circuit is of a similar view. In Singleton v. Norris, the en banc
court considered analogous issues to those raised by Thompson, namely “the interrelated
issues of whether the State may forcibly administer antipsychotic medication to a
prisoner whose date of execution has been set and whether the State may execute a
prisoner who has been involuntarily medicated under a Harper procedure.”3 Singleton,
319 F.3d at 1023. Singleton was under a Harper order of involuntary medication, which
he argued was initially valid while his execution was stayed but which subsequently

         3
          Of course, as correctly noted by the majority, Thompson has not presented facts that he is being
involuntarily medicated by the state.
Nos. 06-5744/5770         Thompson v. Bell                                         Page 33


became unconstitutional once his execution date was set. Id. at 1023. The en banc court
disagreed, reasoning that the decision to medicate under Harper is made based upon the
best medical interests of the prisoner, and “must be determined without regard to
whether there is a pending date of execution.” Id. at 1026. Thus, according to the court,
“the mandatory medication regime, valid under a pendency of a stay of execution, does
not become unconstitutional under Harper when an execution date is set.” Id.

        Singleton also claimed that the Eighth Amendment barred his execution because
the state was rendering him “artificially competent” especially so that he could be
executed. Id. The Eighth Circuit rejected that argument too, explaining that “the state
was under an obligation to administer antipsychotic medication” and, therefore, any
investigation into whether the state had other motives was “unnecessary” and
“irrelevant.” Id. at 1027. The court held, then, that “[a] State does not violate the Eighth
Amendment as interpreted by Ford when it executes a prisoner who became incompetent
during his long stay on death row but who subsequently regained competency through
appropriate medical care.” Id.

        Accordingly, based upon the Supreme Court precedent cited above, holding that
an involuntarily chemically competent prisoner may not be executed would be
problematic because it would tie the hands of state officials who may be involuntarily
medicating inmates to satisfy their obligation to provide appropriate medical care and
ensure the safety of prison employees and inmates. Those officials would be faced with
the Hobson’s choice between administering medically appropriate treatments to the
mentally ill inmate population under Harper and risking the possibility that lawfully
imposed sentences may not be carried out. In that instance, it will likely be the inmates
in need of medical treatment that suffer.

        As the Singleton court held, “Ford prohibits only the execution of a prisoner who
is unaware of the punishment he is about to receive and why he is to receive it.” 319
F.3d at 1027. And medications may reduce the symptoms of psychosis enough that a
prisoner may be found Ford-competent. Medications may further quell the symptoms
enough that a prisoner regains “the opportunity to prepare, mentally and spiritually,” for
Nos. 06-5744/5770          Thompson v. Bell                                      Page 34


his death. Ford, 477 U.S. at 421. Accordingly, a state–which is adhering to either the
Harper standard in involuntarily medicating a dangerous individual, or simply acting on
its responsibility to address the medical needs of its inmates–does not violate the Eighth
Amendment by executing a mentally ill inmate who is receiving antipsychotic
medications so long as the prisoner meets the Ford standard for competency.

                                           II.

       For completeness, I would like to note that it was procedurally inappropriate for
Thompson to raise his chemical competency claim in his petition to the Tennessee
Supreme Court alleging a substantial change in his mental condition. Ford claims are
designed to determine whether a prisoner is competent to be executed at the time the
execution is imminent. See, e.g., Coe v. Bell, 209 F.3d 815, 823 (6th Cir. 2000) (“Coe’s
Ford competency claim was not ripe until his execution was imminent . . . .”). As such,
Ford claims are distinct from the merits. See Martinez-Villareal v. Stewart, 118 F.3d
628, 631 (9th Cir. 1997) (explaining that “competency to be executed is not an issue of
guilt or innocence” subject to AEDPA’s restrictions on second or successive habeas
petitions), aff’d, 523 U.S. 637 (1998). That is, Ford claims do not affect the underlying
validity of the conviction and sentence, but only determine the prisoner’s present
competency to be executed. That is all that Ford claims decide.

       In Tennessee, if a prisoner challenges the state’s right to execute him on the
grounds that he fails to meet the Ford standard for competency, the trial court will make
a competency determination, which is automatically reviewed by the Tennessee Supreme
Court. See Van Tran v. State, 6 S.W.3d 257, 271-72 (Tenn. 2004). If, on automatic
review, the Tennessee Supreme Court finds the prisoner competent, then the Van Tran
court explains that “subsequent Ford claims will be disallowed” except in one narrow
situation: the prisoner,

       by way of a motion for stay, provides this Court with an affidavit from
       a mental health professional showing that there has been a substantial
       change in the prisoner’s mental health since the previous determination
       of competency was made and the showing is sufficient to raise a
       substantial question about the prisoner’s competency to be executed.
Nos. 06-5744/5770              Thompson v. Bell                                                    Page 35


Van Tran, 6 S.W.3d at 272.

         In other words, the Van Tran court unequivocally states that the sole function of
a substantial change petition is to raise a question about the prisoner’s present
competency for execution after a court has previously found him competent, thereby
allowing a prisoner to raise another Ford claim. Id. It does not authorize a prisoner to
bring any other type of claim. Accordingly, it is procedurally inappropriate to add new
claims attacking the underlying conviction and sentence, and any new claims would not
be “fairly presented” in such a petition. See, e.g., Castille v. Peoples, 489 U.S. 346, 351
(1989) (holding that a habeas petitioner’s raising of a claim for the first time in two
motions for allocutor to the Pennsylvania Supreme Court was not “fair presentation” of
the claim because the procedural context in which it was raised rendered consideration
on its merits unlikely).

         To the extent Thompson argues that Tennessee may not execute him if he is
involuntarily medicated, he is attacking the merits of his conviction and sentence, a legal
argument.4 As such, Thompson’s chemical competency claim is analytically distinct
from Thompson’s Ford claim, which only alleges that he is presently incompetent to be
executed, a fact-based argument. See Ford, 477 U.S. at 422; Martinez-Villareal, 118
F.3d at 631; see also Martinez-Villareal, 523 U.S. at 643-45& n.* (1998) (considering
“abuse of the writ” cases in deciding whether a habeas petitioner’s Ford claim is second
or successive; however, leaving unresolved whether a “Ford claim [raised] for the first

         4
           Contrary to the majority’s characterization in footnote 3 supra, I do not contend that the factual
predicate necessary to ripen Thompson’s claim has not yet occurred. Nor do I suggest that Thompson’s
claim would have been ripe “at the time of his conviction and sentence” in 1985. Quite to the contrary,
the facts necessary to ripen Thompson’s chemical competency claim arose in 1995, the year Thompson
claims that the state involuntarily medicated him.
         The fact that Thompson failed to state a claim that he is presently being involuntarily medicated
does nothing to change the fact that Thompson was under a sentence of death and claims to have been
involuntarily medicated back in 1995.
           I also do not suggest that because Thompson’s chemical competency claim presents a question
of law, it was ripe even before the state ever medicated him. To be clear, I agree with the dissenting view
in Singleton, 319 F.3d at 1028, that ripening a chemical competency claim requires only that a death-row
prisoner is, or is likely to be, under an order of involuntary medication. Unlike a Ford claim, the chemical
competency claim does not require that an execution date be “imminent.” Therefore, the necessary factual
predicate had already occurred at the time Thompson presented his initial petition for habeas relief. As
such, even though Thompson fails to state a claim that he is presently being involuntarily medicated, the
chemical competency claim was nonetheless ripe in 1995.
Nos. 06-5744/5770              Thompson v. Bell                                                  Page 36


time in a petition filed after the federal courts have already rejected the prisoner’s initial
habeas application . . . would be a ‘second or successive habeas corpus application’
within the meaning of AEDPA”). Therefore, Thompson at a minimum should have
brought the claim in his initial habeas petition attacking the merits of his conviction and
sentence, but he failed to raise the claim in his 1998 habeas petition, which was
dismissed on the merits in 2000. See Thompson v. Bell, 315 F.3d 566, 584 (6th Cir.
2003).5

          Because it was not raised in his initial petition, the claim could only be brought
by way of a second or successive petition pursuant to 28 U.S.C. § 2244. However,
Thompson also failed to seek the permission of this Court before raising the claim to the
district court, so it is not reviewable here.6 See 28 U.S.C. §§ 2244(b)(2), (3).

          I realize that the Eighth Circuit, in Singleton v. Norris, 319 F.3d 1018, 1023 (8th
Cir. 2003) (en banc), held that 28 U.S.C. § 2244(b)’s restrictions on “second or
successive” petitions did not apply to a habeas petitioner’s Ford claim and “Ford-
derived” Eighth Amendment challenge to involuntary medication. In Singleton, the
petitioner raised a Ford-competency claim in his initial and second habeas petitions.
Singleton, 319 F.3d at 1021-22. Both times, the courts did not reach the Ford claim
because the petitions were decided on other grounds. Id. Finally, in his third habeas
petition, the en banc court had to decide whether the petitioner’s Ford claim–and his
Ford-derived chemical competency claim–were barred as second or successive habeas
petitions. The court, relying in part upon In re Cain, 137 F.3d 234 (5th Cir. 1998), a
Fifth Circuit case considering an inmate’s challenge to loss of good-time credits, held
that a claim that “had not arisen” at the time of a previous habeas petition was not


          5
           Our discussion here of AEDPA’s limitation on second or successive habeas petitions is distinct
from the lead opinion’s discussion of the applicability of AEDPA’s one-year statute of limitations on
federal habeas petitions. See Section II, B supra. The lead opinion’s analysis is confined to consideration
of whether Thompson’s chemical competency claim, as found in his March 17, 2006 amended habeas
petition, was raised within one year of the state court’s final judgment.
          6
          On June 20, 2007, this Court expanded Thompson’s Certificate of Appealability (“COA”) to
address“whether the district court properly dismissed his claim that it is unconstitutional to execute an
individual who is rendered competent through forced medication.” Our decision to expand Thompson’s
COA does not waive AEDPA’s gatekeeping provisions under 28 U.S.C. § 2244.
Nos. 06-5744/5770         Thompson v. Bell                                        Page 37


second or successive. According to the en banc majority, the petitioner’s chemical
competency claim did not arise until he was subject to a Harper order of involuntary
medication and the execution date was set. 319 F.3d at 1023. Because the petitioner
was not under a Harper order until after his initial petitions were adjudicated, the claims
“had not arisen” at the time of the prior petitions and were, thus, not “second or
successive.” Id.

       One judge dissented. Judge Loken would have concluded that Singleton’s claim
was ripe by the time Singleton had filed his first federal habeas petition: “Whereas a
Ford competency claim is fact-intensive, whether it is constitutional to execute an
inmate who is competent only by reason of medical treatment–whether voluntarily or
involuntarily administered–is an issue of law that was apparent to Singleton’s attorneys
no later than the May 1995 competency hearing.” Id. at 1028 (Loken, J., dissenting in
part). In my view, Judge Loken correctly characterizes the chemical competency claim
as a question of law distinct from a fact-driven Ford claim. And while certain facts are
necessary to ripen the claim–namely that the prisoner is, or likely to be, under an order
of involuntary medication–the chemical competency claim is not tied to the same facts
relevant to a Ford petition–namely the imminency of an actual execution date. Cf.
Cooey v. Strickland, 479 F.3d 412, 418-19 (6th Cir. 2007) (holding that the statute of
limitations in a § 1983 challenge to a state’s lethal-injection protocol began to run upon
conclusion of direct review of death sentence and not when execution date was
imminent).

       Thus, were the issue properly before us, the proper answer would be that
Thompson’s chemical competency claim presents a question of law, distinct from his
fact-intensive Ford claim, and should have been raised in his initial habeas petition in
1998 attacking the merits of his state conviction and sentence. Indeed, Thompson claims
that the state forcibly medicated him as early as 1995. See Thompson, 2006 WL
1195892, at *32 n.17. Therefore, the factual basis for this claim undeniably existed
when he first petitioned the district court for habeas relief in 1998. And it was most
certainly available in 2004 when he filed his Ford petition. Because the claim was ripe
Nos. 06-5744/5770           Thompson v. Bell                                             Page 38


in 1998, it could and should have been raised in Thompson’s initial petition or via a
separate 28 U.S.C. § 2244 petition. Since it was not, the claim should be dismissed
pursuant to § 2244(b)(2).

                                              III.

        I agree that the promulgation of Tennessee Supreme Court Rule 39 (“Rule 39”)
is an “extraordinary circumstance” under this Court’s reasoning in In re Abdur’Rahman,
392 F.3d 174 (6th Cir. 2004) (en banc) (“Abdur’Rahman I”), vacated, 545 U.S. 1151
(2005). However, this Court should not have considered Thompson’s Rule 60(b)(6)
motion seeking relief from the district court’s judgment based upon Rule 39 because he
has failed to raise this motion within a reasonable time. See FED. R. CIV. P. 60(c)(1).
The limits of reasonable time “ordinarily depend[] on the facts of a given case including
the length and circumstances of the delay, the prejudice to the opposing party by reason
of the delay, and the circumstances compelling equitable relief.” Olle v. Henry & Wright
Corp., 910 F.2d 357, 365 (6th Cir. 1990); see also Lester v. Zurn Indus., Inc., No. 93-
3464, 33 F.3d 54, 1994 WL 421750, *1 (6th Cir. Aug. 11, 1994) (“What constitutes
‘reasonable time’ depends upon the facts of each case, taking into consideration the
interest in finality, the reason for delay, the practical ability of the litigant to learn earlier
of the grounds relied upon, and [the consideration of] prejudice [if any] to other
parties.”).

        Thompson had many reasonable opportunities and sufficient notice to bring his
Rule 60(b)(6) motion well before his eventual January 20, 2006 filing. Rule 39 was
promulgated on June 28, 2001, which provided notice to Thompson of the district court’s
error respecting exhaustion law in Tennessee. At that time, Thompson was actively
pursuing an appeal in this Court of the dismissal of his initial § 2254 habeas petition.
Indeed, Thompson even felt compelled to file a notice of supplemental authority
referencing Rule 39 to this Court on August 1, 2001. Thus, Thompson was aware of
Rule 39 and its potential effect on his interests at least as early as August 1, 2001. For
this claim to be timely, Thompson should have been diligently pursuing his 60(b) motion
in 2001, just as the petitioner in the Abdur’Rahman line of cases did.                        See
Nos. 06-5744/5770         Thompson v. Bell                                       Page 39


Abdur’Rahman I, 392 F.3d at 178 (noting that Abdur’Rahman filed a Rule 60(b) motion
relying upon Rule 39 on November 1, 2001, challenging the district court’s refusal to
consider his prosecutorial misconduct claims as procedurally defaulted).

       To be sure, in 2001, Thompson’s Rule 60(b) motion would have been treated as
a second or successive habeas petition based upon Circuit precedent in McQueen v.
Scroggy, 99 F.3d 1302, 1305 (6th Cir. 1996), overruled by Abdur’Rahman I, 392 F.3d
174, which held that Rule 60(b) motions were the “practical equivalent” of successive
habeas corpus petitions. However, it must be remembered that the diligence of
Thompson’s contemporary, Abdur’Rahman (who was also sentenced to death in
Tennessee), who filed a Rule 60(b) motion in 2001 despite McQueen, was what led to
the overturning of McQueen and cleared the path for habeas petitioners to file Rule 60(b)
motions in this context without threat of defaulting. In fact, we rejected a similar
argument in Cooey v. Strickland, 479 F.3d at 422. In Cooey, we considered a plaintiff’s
argument that the statute of limitations on a § 1983 claim did not begin to run until a
Supreme Court decision, Nelson v. Campbell, 541 U.S. 637 (2004), made a § 1983 action
a possible remedy, where circuit precedent explicitly precluded a death-row inmate from
challenging his method of execution via § 1983. Cooey, 479 F.3d at 422. We rejected
the argument, stating that “[s]o long as there remains the possibility of en banc
reconsideration and Supreme Court review, circuit law does not completely foreclose all
avenues of relief.’” Cooey, 479 F.3d at 422.

       After Abdur’Rahman’s successful Rule 60(b) challenge, this en banc Court, on
December 13, 2004, overturned McQueen. See Abdur’Rahman I, 392 F.3d at 182. At
that time, the threat of Thompson’s 60(b) motion being treated as a second or successive
habeas petition vanished, and he should have–at the latest–filed his motion within a
“reasonable” time thereafter. Instead, Thompson waited another 13 months, and the
record and briefs provide no explanation for his delay.

       The majority opinion acknowledges that Thompson could have filed his Rule
60(b) motion immediately after Abdur’Rahman I was published, but dismisses it as
“theoretical” because Thompson’s appeal was still pending and the district court would
Nos. 06-5744/5770         Thompson v. Bell                                        Page 40


not have had jurisidiction. This is no excuse. While it is true that the district court
would not have had jurisdiction to hear Thompson’s Rule 60(b) motion while
Thompson’s habeas petition was before this Court, Pittock v. Otis Elevator Co., 8 F.3d
325, 327 (6th Cir. 1993) (noting that a district court did not have jurisdiction to rule on
a 60(b) motion once the plaintiffs filed a notice of appeal), this Court has held that the
proper procedure for seeking relief from a judgment under Rule 60(b) is to file that Rule
60(b) motion in district court even if an appeal is pending. See Morse v. McWhorter,
290 F.3d 795, 799 (6th Cir. 2002). The district court would then indicate whether it
would grant the motion, thus allowing the party to move this Court for a remand of the
case. Id. Therefore, contrary to the Court’s reasoning, there was no jurisdictional hurdle
for Thompson to overcome before filing his Rule 60(b) motion.

       Finally, we must remember that this Court reviews the denial of a Rule 60(b)
motion only for abuse of discretion and affirms the district court’s ruling “unless this
court is left with a ‘definite and firm conviction that the trial court committed a clear
error of judgment.’” Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578-79 (6th Cir. 1998)
(quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)). In other
words, “Under the abuse of discretion standard, an appellate court may overturn a lower
court’s ruling only if it finds that the ruling was arbitrary, unjustifiable, or clearly
unreasonable.” Plain Dealer Pub. Co. v. City of Lakewood, 794 F.2d 1139, 1148 (6th
Cir. 1986). The district court applied the appropriate law and conducted a thorough
analysis of the record. Though the district court ultimately held that Rule 39 was not an
“extraordinary circumstance” entitling Thompson to Rule 60(b)(6) relief, the district
court held that denial was also appropriate because Thompson failed to raise his 60(b)
motion within a reasonable time as required under Rule 60(b):

       Rule 39 was enacted on June 28, 2001, and the Sixth Circuit initially
       issued its opinion on or about January 13, 2003, and certiorari was denied
       on or about December 1, 2003. However, on or about June 28, 2004, the
       Court of Appeals for the Sixth Circuit vacated its judgment and
       remanded the case to this Court. The United States Supreme Court
       reversed the Sixth Circuit’s decision on August 29, 2005, and denied
       Thompson’s petition for rehearing on September 19, 2005. Nevertheless,
       Thompson waited more than four and a half years after the enactment of
Nos. 06-5744/5770         Thompson v. Bell                                        Page 41


       Rule 39 and four months from the denial of certiorari before filing his
       Rule 60(b)(6) motion on January 20, 2006. Thompson has not provided
       any explanation for the delay. Thompson’s filing of his motion more
       than one year after the enactment of Rule 39 demonstrates a lack of due
       diligence. Such a delay, without excuse, will ordinarily result in the
       denial of a Rule 60(b) motion.
Thompson v. Bell, No. 4:98-CV-00006, at 8 (E.D. Tenn. Mar. 27, 2006).

       In reaching its ruling, the district court properly cataloged the procedural posture
of the case and implied relevant points where Thompson could have raised the motion.
Accordingly, I believe there is no way that an appellate court can fairly deem the district
court’s ruling as “arbitrary, unjustifiable, or clearly unreasonable.” Plain Dealer, 794
F.2d at 1148.

       In sum, the instrument for attacking the district court’s judgment was available
as early as June 28, 2001, when Rule 39 was promulgated. Thompson’s filing of a
“notice” before this Court in August 2001 demonstrates that he knew about this avenue
of attacking the judgment. Finding no compelling justification to excuse Thompson’s
failure to raise his motion within a reasonable time, I would hold that even though the
promulgation of Rule 39 is an “extraordinary circumstance,” Thompson’s delay in filing
his Rule 60(b) motion until 2006 is not reasonable, and the district court properly denied
relief on Thompson’s motion.

                                           IV.

       For the foregoing reasons, I concur in the majority’s decision to remand the issue
of Thompson’s present competency to be executed to the district court for an evidentiary
hearing. If the state courts find Thompson meets the Ford standard for competency,
then the state should be allowed to proceed forthwith with Thompson’s execution.
Further, Thompson’s underlying state court judgment and conviction should not be
revisited under the guise of a very untimely Rule 60(b) motion.
