                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-3050
JOSEPH ARRIETA,
                                             Petitioner-Appellant,
                                 v.

DEIRDRE BATTAGLIA, Warden,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 03 C 8012—Wayne R. Andersen, Judge.
                          ____________
 ARGUED SEPTEMBER 27, 2005—DECIDED AUGUST 24, 2006
                   ____________


  Before FLAUM, Chief Judge, and BAUER and SYKES,
Circuit Judges.
   SYKES, Circuit Judge. Joseph Arrieta is an Illinois
prisoner serving a life sentence for two murders. He sought
federal habeas relief pursuant to 28 U.S.C. § 2254, but the
district court dismissed his petition as untimely— it was
filed almost four years after the expiration of the one-year
statute of limitation contained in 28 U.S.C. § 2244(d)(1)(A).
On appeal, Arrieta argues that the district court was
required under Newell v. Hanks, 283 F.3d 827 (7th Cir.
2002) to treat his habeas petition as an amendment to a
petition he had timely filed but voluntarily dismissed some
three years earlier. We disagree and affirm the judgment of
the district court.
2                                                    No. 04-3050

                        I. Background
  In 1996 Arrieta was convicted of two counts of first-degree
murder in Illinois state court and sentenced to life in
prison.1 His conviction was affirmed on direct appeal, and
the Illinois Supreme Court denied review on June 4, 1997.
On September 18, 1997, Arrieta filed a petition for
postconviction relief in state court. That petition was
dismissed, and the dismissal was affirmed by the Illinois
Court of Appeals on December 18, 1998. Arrieta did not
seek further review in the Illinois Supreme Court. Instead,
on June 23, 1999, he filed a petition for a writ of habeas
corpus in federal district court pursuant to 28 U.S.C.
§ 2254.
  Approximately two weeks before Arrieta filed his fed-
eral habeas petition, the United States Supreme Court
decided O’Sullivan v. Boerckel, 526 U.S. 838 (1999), in
which the Court held that a habeas petitioner must present
his state court petition for postconviction relief to the
highest court of the state in order to satisfy the exhaustion
requirement of 28 U.S.C. § 2254(b)(1). Arrieta became
aware of this recent development in the law and moved the
district court for a stay of his habeas case while he belat-
edly petitioned the Illinois Supreme Court for leave to
appeal the dismissal of his postconviction petition, thereby
curing the procedural default wrought by O’Sullivan. The
stay was granted.
  When the Illinois Supreme Court denied leave to ap-
peal, Arrieta returned to federal court and moved to lift the
stay and amend his habeas petition. Before the district
court could rule on that motion, Arrieta filed another


1
  The facts surrounding Arrieta’s crime and the substantive
issues raised in his direct appeals and state postconviction filings
have not been made part of the record and are not relevant
to resolution of this appeal.
No. 04-3050                                                 3

motion, this time asking the court to dismiss his habeas
action without prejudice. As it turned out, this was a
serious procedural mistake. It was apparently Arrieta’s
intention to return to state court and file a second state
postconviction petition presenting claims that were not
included in either the original habeas petition or his
original petition for postconviction relief. The proper course
would have been either a motion to continue the stay
already in effect or a motion to dismiss with leave to
reinstate. The latter motion has the effect of a stay and does
not act as a final judgment until the time specified by the
court for reinstatement has expired. Balt. & Ohio Terminal
Ry. Co. v. Wis. Cent. Ltd., 154 F.3d 404, 407-08 (7th Cir.
1998). On October 20, 2000, the district court granted the
motion to dismiss without prejudice, just as Arrieta had
requested, pursuant to FED. R. CIV. P. 41(a)(1). There is no
dispute that at this point the statute of limitations under
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) had expired; excluding the time during which
Arrieta’s state postconviction application was pending, the
one-year habeas limitations period expired on December 6,
1999. See 28 U.S.C. § 2244(d)(1)(A) & (d)(2).
  On November 10, 2003—more than three years after
Arrieta’s federal habeas petition was dismissed at his
request and following another round of postconviction
proceedings in state court—Arrieta filed a second federal
habeas petition together with a “Motion to Reinstate
Habeas Corpus Petition.” This new action was not denomi-
nated an amended petition, the old case number was not
used, and Arrieta paid the filing fee again. The district
court dismissed the action as untimely. The court recog-
nized that the only way the one-year time bar would not
be dispositive was if the judgment dismissing the first
habeas petition could be vacated, the case reinstated and
considered stayed, and the second petition construed as
an amended petition rather than an entirely new (and time-
4                                                No. 04-3050

barred) action. Such a procedure was endorsed by this court
in Newell.
  However, the district court concluded that in this case,
unlike in Newell, it was powerless to vacate its prior
dismissal because the time period for seeking such relief
under FED. R. CIV. P. 60(b) had also expired. The applicable
ground for reopening the prior judgment was
mistake—Arrieta had mistakenly moved for dismissal
rather than a stay or dismissal with leave to reinstate—and
Rule 60(b) requires that relief from a judgment on grounds
of mistake be sought within one year after judgment is
entered. Although this court’s opinion in Newell did not
mention Rule 60(b), the district court there had in fact
vacated its dismissal judgment within the rule’s one-year
time limit. In Arrieta’s case, Rule 60(b)’s one-year time limit
had long since expired.


                      II. Discussion
  Arrieta advances three arguments for considering his
second habeas petition timely. First, he contends that
Newell should be read as requiring the district court to
vacate the dismissal of his original habeas petition notwith-
standing the one-year time limit imposed by Rule 60(b)(1).
Second, he argues that the district court erred when it
applied the one-year time limit of Rule 60(b)(1) because the
judgment in the first habeas case should have been vacated
pursuant to Rule 60(b)(6), the “catchall” provision for
reopening a judgment, which contains no fixed time limit on
seeking relief. Finally, Arrieta claims the circumstances
warrant equitable tolling of the one-year limitation period
for filing habeas corpus petitions.
  Arrieta’s first argument is that under Newell, the district
court was required to vacate its dismissal of the original
petition—effectively converting the dismissal into a
stay—and construe the second petition as an amendment to
No. 04-3050                                                        5

the rejuvenated (and timely filed) original petition. This
argument overreads Newell and runs contrary to recent
decisions of the United States Supreme Court.
   Before proceeding, it is important to note that although
Arrieta denominated his motion as one to “reinstate” the
first habeas petition, the district court’s decision is
grounded in Rule 60(b), which governs relief from final
judgments. The court held that regardless of whether a stay
rather than dismissal would have been an appropriate
procedure to follow in the first habeas case, the expiration
of the one-year time limit for relief on grounds of mistake
under Rule 60(b)(1) made reopening that judgment im-
proper. We review a district court’s denial of relief under
Rule 60(b) for abuse of discretion. Brandon v. Chi. Bd. of
Educ., 143 F.3d 293, 295 (7th Cir. 1998).
  Rule 60 of the FED. R. CIV. P. regulates the procedure for
obtaining relief from final judgments. Wesco Prods. Co. v.
Alloy Auto. Co., 880 F.2d 981, 983 (7th Cir. 1989). The rule
is available to habeas petitioners seeking to reopen previ-
ously dismissed petitions brought pursuant to 28 U.S.C.
§ 2254, provided that the ground on which relief is sought
does not attack the substance of a court’s resolution of a
claim on the merits—a concern not raised by this case.
Gonzalez v. Crosby, 125 S. Ct. 2641, 2649 (2005) (“Rule
60(b) has an unquestionably valid role to play in habeas
cases.”).2


2
   Crosby held that while a Rule 60(b) motion may not be used to
circumvent the restrictions and limitations on second or succes-
sive applications for habeas corpus relief, see 28 U.S.C. § 2244(b),
the rule nonetheless remains available to habeas petitioners
seeking to reopen prior dismissals on grounds that do not “present
a revisitation of the merits” of their claims. 125 S. Ct. at 2649. As
stated by the Court: “We hold that a Rule 60(b) motion in a § 2254
case is not to be treated as a successive habeas petition if it does
                                                       (continued...)
6                                                No. 04-3050

  Motions to reopen premised upon mistake, inadvertence,
surprise, or excusable neglect (Rule 60(b)(1)); newly discov-
ered evidence (Rule 60(b)(2)); or fraud (Rule 60(b)(3)) must
be brought “not more than one year after the judgment,
order, or proceeding was entered or taken.” FED. R. CIV. P.
60(b). This time limit is jurisdictional and cannot be
extended. Wesco, 880 F.2d at 985; Brandon, 143 F.3d
at 296. Motions for relief on other grounds specified in
the rule must be made “within a reasonable time.” FED. R.
CIV. P. 60(b).
  If the asserted ground for relief from the prior judgment
does not fall within one of the specific categories enumer-
ated in Rule 60(b)(1)-(5), relief may be available under the
residual provision of the rule, which permits reopening a
judgment for “any other reason justifying relief from the
operation of the judgment.” FED. R. CIV. P. 60(b)(6). A
motion under the “catchall” provision contained in Rule
60(b)(6) also must be made “within a reasonable time.”
Relief under Rule 60(b)(6) requires a showing of “ ‘extraordi-
nary circumstances’ justifying the reopening of a final
judgment” and “[s]uch circumstances will rarely occur
in the habeas context.” Crosby, 125 S. Ct. at 2649.
  Important to this case is the principle that if the asserted
ground for relief falls within one of the enumerated grounds
for relief subject to the one-year time limit of Rule 60(b),
relief under the residual provision of Rule 60(b)(6) is not
available. Wesco, 880 F.3d at 983; Brandon, 143 F.3d at
295. To permit relief under the catchall provision in such
situations would render the one-year time limitation
meaningless. Wesco, 880 F.3d at 983. Accordingly, we have
held that “the first three clauses [of Rule 60(b)] and the
catchall clause are mutually exclusive.” Id.


2
  (...continued)
not assert, or reassert, claims of error in the movant’s state
conviction.” Id. at 2651.
No. 04-3050                                                  7

  The ground for relief here is properly categorized as
“mistake” under Rule 60(b)(1). A litigant who moves to
voluntarily dismiss an action that cannot be refiled due
to the expiration of the statute of limitation has com-
mitted a mistake. Arrieta admits as much in his brief,
stating that he mistakenly moved to dismiss his original
petition on the basis of advice he received from “jailhouse
lawyers.” Further, although he proceeded pro se in the
district court, Arrieta clearly knew the difference between
a stay and a dismissal because he originally sought and
obtained a stay of his first habeas petition while he peti-
tioned the Illinois Supreme Court for review to cure the
O’Sullivan problem. The district court properly concluded
that the one-year time limit applicable to relief under Rule
60(b)(1) foreclosed Arrieta’s request for relief from the
dismissal of his first habeas petition.
  Arrieta’s fallback Rule 60(b) argument is that the judg-
ment should have been reopened pursuant to the catchall
provision of Rule 60(b)(6), which carries no fixed time limit.
The Supreme Court has stated that relief under Rule
60(b)(6) will be “rare” in the habeas context; here, it is
unavailable because the ground for relief is properly
categorized as mistake under Rule 60(b)(1), and “[Rule]
60(b)(1) and [Rule] 60 (b)(6) are mutually exclusive.” Wesco,
880 F.3d at 985 n.5. Accordingly, the district court correctly
concluded that Arrieta’s second habeas petition was
untimely.
   Newell does not require a different result. In Newell, the
petitioner presented the district court with a mixed petition
for habeas relief, one that raised both exhausted and
unexhausted claims. Newell, 283 F.3d at 831. The petitioner
then asked the district court to dismiss without prejudice
because “some of his habeas claims have been exhausted in
the Indiana courts, while other claims are now being
litigated in the Indiana courts . . . .” Id. at 831. The motion
was granted. Ten months later, the petitioner returned to
8                                                No. 04-3050

district court with a motion to “redocket” his prior habeas
petition and amend the prior petition to include references
to the disposition of the previously unexhausted claims. In
response to this motion, the district court vacated the
original judgment of dismissal, ordered the clerk to “reopen
the action on the docket,” and allowed the amended petition
to be docketed with the reopened original petition. Id. at
832. On appeal, the state argued that the district court
abused its discretion in vacating the dismissal of the first
petition. We rejected the argument in the following terms:
    [W]e conclude that the court’s decision was entirely
    proper. When dismissing Newell’s first petition, the
    district court did not have the benefit of our decisions in
    Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000), and
    [Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1999)],
    which suggest that the federal action should have been
    stayed, not dismissed, while the Indiana court ruled on
    Newell’s pending motion. . . . By vacating the dismissal,
    the district court effectively converted it into a stay;
    this could not have been an abuse of discretion because
    we now know that staying the action was the right step
    to take in the first place.
Newell, 283 F.3d at 834.
  Our opinion in Newell did not engage in an analysis under
Rule 60(b) or any other authority pursuant to which the
petitioner had asserted a right to the “redocketing” of his
previously dismissed petition or pursuant to which
the district court vacated the prior judgment. This is
understandable, given that the issue was apparently not
briefed by the parties and was only belatedly inserted
into the case by the state at oral argument. Id. at 834. To
the extent that the relief from judgment granted in Newell
can be read as having been premised on a mistake by
the court rather than the petitioner—that is, that the
district court should have construed the petitioner’s mo-
No. 04-3050                                                 9

tion to dismiss the original mixed petition as a motion to
stay—relief was requested ten months after the dismissal,
within the time limit imposed by Rule 60(b). The one-year
time limit in Rule 60(b) was not at issue in Newell, as it
is here.
  In any event, nothing in Newell can be read as requiring
the district court to reopen a previously dismissed habeas
petition even where the provisions of Rule 60(b) foreclose
vacating the judgment. Newell held that the district
court did not abuse its discretion in reopening the dismissal
judgment ten months after it was entered; it did not hold
that the court was required to reopen the judgment even
where doing so would be contrary to Rule 60(b).
  The Supreme Court has recently held that federal district
courts have the discretion to stay a mixed habeas peti-
tion—one that contains some exhausted claims and some
unexhausted claims—in “limited circumstances” not
inconsistent with the “timeliness concerns reflected in
AEDPA.” Rhines v. Weber, 544 U.S. 269, 277 (2005). The
Court in Rhines held that a “stay and abeyance” of a
mixed habeas petition “is only appropriate when the district
court determines there was good cause for the petitioner’s
failure to exhaust his claims first in state court” and the
unexhausted claims are not “plainly meritless.” Id.; see also
Dolis v. Chambers, No. 05-3781, 2006 WL 2042536, at *3
(7th Cir. July 24, 2006).
  The Court in Rhines observed that “it likely would be an
abuse of discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good cause for
his failure to exhaust, his unexhausted claims are poten-
tially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory litiga-
tion tactics. In such circumstances, the district court should
stay, rather than dismiss, the mixed petition.” Id. We read
this language as directing district courts to grant a habeas
10                                              No. 04-3050

petitioner’s motion to stay a mixed habeas petition when
the foregoing prerequisites are established, not as mandat-
ing that a prior voluntary dismissal be reopened even if the
terms of Rule 60(b) preclude reopening.
  The Supreme Court has also recently held, in Pliler v.
Ford, 542 U.S. 225, 231 (2004), that district courts are
not required to warn pro se habeas petitioners of the
statute-of-limitations consequences of dismissing a mixed
habeas petition. In light of the holdings in Rhines and
Pliler, our decision in Newell cannot be read to require the
reopening of a voluntarily dismissed habeas case where the
one-year time limit of Rule 60(b) has expired.
  Finally, Arrieta argues that his second petition should be
deemed timely pursuant to the doctrine of equitable tolling.
While the one-year habeas statute of limitation may be
subject to equitable tolling, such relief is available only
where the petitioner is unable to file the action within the
statutory period due to extraordinary circumstances outside
his control and through no fault of his own. Gildon v.
Bowen, 384 F.3d 883, 886 (7th Cir. 2004); Williams v. Sims,
390 F.3d 958, 960 (7th Cir. 2004). Mistakes of law
or ignorance of proper legal procedures are not extraordi-
nary circumstances warranting invocation of the doctrine of
equitable tolling. Williams, 390 F.3d at 963. Indeed,
permitting equitable tolling of a statute of limitation for
every procedural or strategic mistake made by a litigant (or
his attorney) would render such statutes of “no value at all
to persons or institutions sued by people who don’t have
good, or perhaps any, lawyers.” Id.; see also Owens v. Boyd,
235 F.3d 356, 359 (7th Cir. 2001). Arrieta’s procedural
mistake in asking for a dismissal of his original petition is
not a ground for equitable tolling. To the extent that
Arrieta is arguing for equitable tolling on the ground that
the district court should have warned him that voluntary
dismissal would eliminate his ability to obtain federal
No. 04-3050                                            11

habeas review altogether, that argument is foreclosed by
Pliler. See Williams, 390 F.3d at 963.
 The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—8-24-06
