                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0026n.06
                             Filed: January 9, 2008

                                            No. 06-5693

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JOE CLARK MITCHELL,                               )
                                                  )
        Petitioner-Appellee,                      )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
JOHN REES,                                        )    MIDDLE DISTRICT OF TENNESSEE
                                                  )
        Respondent-Appellant,                     )
                                                  )

Before: BOGGS, Chief Judge, and BATCHELDER and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Respondent-appellant John Rees, warden of

the Corrections Corporation of America, South Central Correctional Facility, appeals the district

court’s grant of a writ of habeas corpus to petitioner-appellee Joe Clark Mitchell. Respondent argues

that the district court erred by granting Mitchell’s Rule 60(b) motion for relief from judgment

because the district court relied on this court’s prior decision, Mitchell v. Rees (“Mitchell I”), 114

F.3d 571 (6th Cir. 1997), which was erroneously decided. For the following reasons, we reverse the

decision of the district court.

                                                  I.

        Mitchell was convicted in Tennessee state court in 1986. Mitchell I, 114 F.3d at 572-73. In

April 1993, Mitchell filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254



                                                 -1-
(1994).1 Id. at 575. The district court dismissed all of Mitchell’s claims, except for a claim under


       1
           At the time Mitchell filed his petition, 28 U.S.C. § 2254(d) (1994) provided:

       In any proceeding instituted in a Federal court by an application for a writ of habeas
       corpus by a person in custody pursuant to the judgment of a State court, a
       determination after a hearing on the merits of a factual issue, made by a State court
       of competent jurisdiction in a proceeding to which the applicant for the writ and the
       State or an officer or agent thereof were parties, evidenced by a written finding,
       written opinion, or other reliable and adequate written indicia, shall be presumed to
       be correct, unless the applicant shall establish or it shall otherwise appear, or the
       respondent shall admit--

                 (1) that the merits of the factual dispute were not resolved in the State court
                 hearing;
                 (2) that the factfinding procedure employed by the State court was not
                 adequate to afford a full and fair hearing;
                 (3) that the material facts were not adequately developed at the State court
                 hearing;
                 (4) that the State court lacked jurisdiction of the subject matter or over the
                 person of the applicant in the State court proceeding;
                 (5) that the applicant was an indigent and the State court, in deprivation of his
                 constitutional right, failed to appoint counsel to represent him in the State
                 court proceeding;
                 (6) that the applicant did not receive a full, fair, and adequate hearing in the
                 State court proceeding; or
                 (7) that the applicant was otherwise denied due process of law in the State
                 court proceeding;
                 (8) or unless that part of the record of the State court proceeding in which the
                 determination of such factual issue was made, pertinent to a determination of
                 the sufficiency of the evidence to support such factual determination, is
                 produced as provided for hereinafter, and the Federal court on a consideration
                 of such part of the record as a whole concludes that such factual
                 determination is not fairly supported by the record:

       And in an evidentiary hearing in the proceeding in the Federal court, when due proof
       of such factual determination has been made, unless the existence of one or more of
       the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive,
       is shown by the applicant, otherwise appears, or is admitted by the respondent, or
       unless the court concludes pursuant to the provisions of paragraph numbered (8) that
       the record in the State court proceeding, considered as a whole, does not fairly
       support such factual determination, the burden shall rest upon the applicant to
       establish by convincing evidence that the factual determination by the State court was

                                                   -2-
Batson v. Kentucky, 476 U.S. 79 (1986), that African Americans had been excluded

unconstitutionally from the state court jury. Mitchell I, 114 F.3d at 575. After a magistrate judge

conducted an evidentiary hearing on the issue, the district court concluded that a Batson violation

had occurred and conditionally granted Mitchell’s petition. Id. On appeal, this court reversed,

concluding that the district court lacked jurisdiction to conduct an evidentiary hearing because it had

not identified a factor in 28 U.S.C. § 2254(d) (1994) that allowed it to dispense with the presumption

of correctness for the factual findings of the state courts. Id. at 577-78. Excluding the facts adduced

at the evidentiary hearing, and presuming the correctness of the state courts’ factual findings, the

court determined that Mitchell failed to establish a Batson violation. Id. at 578-79. This court found

no error in the dismissal of Mitchell’s other claims but remanded the case to the district court for it

to determine whether Mitchell could establish ineffective assistance of counsel for failure to raise

the Batson claim at trial or on direct appeal. Id. at 579 & n.13.

       On remand, the district court held that the state court record demonstrated that at Mitchell’s

trial, his counsel had failed to make a Batson challenge and, as a result, the prosecutor had failed to

state on the record any reason for his striking the African American. Mitchell v. Rees (“Mitchell II”),

36 F. App’x 752, 753 (6th Cir. 2002). Therefore, the district court held that “the state court record

demonstrated ineffective assistance of counsel, and that ineffective assistance was cause for the

failure to develop the state court record.” Id. The district court then concluded that the evidence

developed in the earlier federal court evidentiary hearing sufficed to prove the Batson claim, which



       erroneous.

28 U.S.C.A. § 2254(d) (1994).


                                                 -3-
in turn sufficed to demonstrate prejudice from trial counsel’s ineffective assistance. Id. This court

reversed, holding that the district court’s conclusion was directly contrary to Mitchell I, and holding

further that there was no basis in law for the district court’s ‘perfectly circular conclusion’ that

Mitchell’s failure to develop the record in the state post-conviction proceedings was caused by his

trial counsel’s ineffective assistance. In Mitchell I, this court found that the state court’s conclusion

that a Batson violation was not established in the state court record was fairly supported by that

record. Id. at 753-54. This court remanded the “matter with instructions to the district court to enter

judgment denying the petition for a writ of habeas corpus.” Id. at 754. The district court entered

judgment in accordance with the mandate on March 14, 2002.

        On September 13, 2000, this court issued its opinion in Abdur’Rahman v. Bell, 226 F.3d 696

(6th Cir. 2000), in which it held that the district court has the inherent authority to conduct an

evidentiary hearing. Id. at 705. In doing so, the court noted that “Mitchell[] . . . is overbroad in that

it fails to recognize the inherent authority that a district court always has in habeas cases to order

evidentiary hearings . . . .” Id. at 706. On July 28, 2005, this court issued its opinion in Harries v.

Bell, 417 F.3d 631 (6th Cir. 2005), in which it confirmed that “Mitchell conflicts with Sixth Circuit

and Supreme Court precedent.” Id. at 635. Furthermore, on June 23, 2005, the Supreme Court

issued its opinion in Gonzalez v. Crosby, 545 U.S. 524 (2005), in which the Supreme Court held that

a motion for relief from judgment under Federal Rule of Civil Procedure 60(b) by a habeas petitioner

is not automatically treated as a successive habeas petition under 28 U.S.C. § 2244(b). Id. at 538.

        In response to these cases, on December 9, 2005, Mitchell filed a motion for relief from

judgment pursuant to Rule 60(b)(6), arguing that Mitchell I erroneously denied him an evidentiary

hearing and requesting that the district court reopen the case and grant the hearing. The district court


                                                  -4-
concluded that Mitchell’s motion was not a successive habeas petition and that the decision in

Mitchell I was in error. It also concluded that the facts of the case constituted an “extraordinary

circumstance” and satisfied the requirements of Rule 60(b)(6). Therefore, it granted an evidentiary

hearing, adopted the factual findings of the earlier federal court evidentiary hearing, and granted

Mitchell’s petition because of the Batson violation.



                                                 II.

       As a threshold matter, respondent argues that the district court does not have the power to

reconsider its judgment under Rule 60(b) because Mitchell is challenging a judgment of this court

not the district court. “Under the doctrine of law of the case, findings made at one point in the

litigation become the law of the case for subsequent stages of that same litigation.” United States

v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). “A complementary theory, the mandate rule,

requires lower courts to adhere to the commands of a superior court.” Id.; see also United States v.

Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (explaining that “the mandate rule is a specific

application of the law-of-the-case doctrine”). However, these rules are not without exception.

Moored, 38 F.3d at 1421. The Supreme Court has rejected the proposition “that an appellate court’s

mandate bars the trial court from later disturbing the judgment entered in accordance with the

mandate.” Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976); see also Ritter v.

Smith, 811 F.2d 1398, 1401-04 (11th Cir. 1987) (cited favorably by Gonzalez, 545 U.S. at 534)

(affirming the district court’s Rule 60(b) reconsideration in a habeas case of judgment made pursuant

to appellate court’s mandate in light of subsequent change in controlling law). An issue already

decided may be reopened in limited circumstances, such as where there is “substantially different


                                                -5-
evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling

authority; or a clearly erroneous decision which would work a manifest injustice.” Moored, 38 F.3d

at 1421 (internal quotation marks omitted). Here, the subsequent rulings by this court in Harries and

Abdur’Rahman explicitly adopted a contrary view of the district court’s authority to grant an

evidentiary hearing from that advanced in Mitchell I and confirm that Mitchell I was erroneous when

decided. See Harries, 417 F.3d at 635; Abdur’Rahman, 226 F.3d at 705-06. Relying upon the

evidence adduced from the evidentiary hearing, the district court concluded that Mitchell

demonstrated a Batson violation, a conclusion which this court has never rejected. Given these facts,

the district court was not bound by Mitchell I.

       Still, before Mitchell’s motion can be considered on its merits, Mitchell must overcome two

procedural hurdles: (1) his Rule 60(b) motion must not be a second or successive habeas petition

prohibited by AEDPA and (2) he must satisfy the requirements of Rule 60(b).2

       A motion under Rule 60(b) may be treated as a second or successive habeas petition if

necessary to enforce the requirements of 28 U.S.C. § 2244(b). See Gonzalez, 545 U.S. at 529, 531-

32. If, under this standard, a 60(b) motion were found to be a successive habeas petition, such a

finding would require application of 28 U.S.C. § 2244(b), which would serve as a jurisdictional bar

to the 60(b) motion. See, e.g., Post v. Bradshaw, 422 F.3d 419, 421 (6th Cir. 2005) (holding that the

petitioner’s 60(b) was barred by § 2244(b) because the motion was in fact a successive habeas

petition). In order for § 2244(b) to be implicated, a Rule 60(b) motion must constitute a “habeas

corpus application” by containing a “claim.” Gonzalez, 545 U.S. at 530. A Rule 60(b) motion


       2
        Before the district court, Mitchell argued that the district court’s equitable powers over its
own judgment derived from Article III of the Constitution and 28 U.S.C. § 2243 provided bases
separate from Rule 60(b) for providing relief. Mitchell does not raise these arguments on appeal.

                                                  -6-
contains a claim if it asserts a federal basis for relief from a state court’s judgment of conviction, id.,

by “seek[ing] to add a new ground for relief,” or “attack[ing] the federal court’s previous resolution

of a claim on the merits,” id. at 532. However, no claim is presented if a Rule 60(b) motion attacks

“some defect in the integrity of the federal habeas proceedings,” id., such as “assert[ing] that a

previous ruling which precluded a merits determination was in error—for example, a denial for such

reasons as failure to exhaust, procedural default, or statute-of-limitations bar,” id. at 532 n.4. In

short, a Rule 60(b) motion is not a successive habeas petition “if it does not assert, or reassert, claims

of error in the movant’s state conviction.” Id. at 538.

        Here, Mitchell’s Rule 60(b) motion argues that Mitchell I erroneously denied him an

evidentiary hearing and requests that the district court reopen the case and grant the hearing. This

is not a “claim” because it does not assert an error in the state conviction and would not constitute

a federal basis for relief. Respondent argues that this case is distinguishable from cases in which a

limitations bar applies because here the court actually decided Mitchell’s original claim on the

merits. While this may be true, the focus of the inquiry is not on whether the court reached the

merits of the original petition but on whether the Rule 60(b) motion contains a claim. If it does not

contain a claim, it is not a habeas petition, successive or otherwise. See Gonzalez, 545 U.S. at 530.

Because Mitchell’s Rule 60(b) motion challenges only the judgment on the evidentiary hearing, it

does not make a claim but rather asserts an error in the federal habeas proceeding. Therefore,

Mitchell’s Rule 60(b) motion is not subject to the provisions of 28 U.S.C. § 2244(b).

        Although Mitchell’s Rule 60(b) motion does not constitute a second or successive habeas

petition, in order to prevail, he still must satisfy the requirements and limitations of Rule 60(b) to

prevail. See id. at 534-35. Rule 60(b), in relevant part, allows a party to seek relief from a final


                                                   -7-
judgment for: “(1) mistake, inadvertance, surprise, or excusable neglect . . . ; or (6) any other reason

justifying relief from the operation of judgment.” Fed. R. Civ. P. 60(b). A district court’s decision

to grant relief pursuant to Rule 60(b) is reviewed for an abuse of discretion. Blue Diamond Coal Co.

v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). “A district court

abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” Schenck v. City of Hudson, 114 F.3d

590, 593 (6th Cir. 1997).

       It was an abuse of discretion to grant relief under Rule 60(b)(6) because Mitchell’s motion

should have been brought under Rule 60(b)(1). Rule 60(b)(6) is interpreted narrowly, permitting

relief only in “extraordinary circumstances.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.

847, 863-64 (1988); Abdur’Rahman v. Bell, 493 F.3d 738, 741 (6th Cir. 2007). Specifically, a

motion may not be brought under Rule 60(b)(6) if it is premised on one of the grounds for relief

enumerated in clauses (b)(1) through (b)(5). Liljeberg, 486 U.S at 863 & n.11. Here, Mitchell seeks

relief because Mitchell I was “totally wrong” and the court made a “patent error in denying an

evidentiary hearing.” The cases upon which he relies for this proposition confirm that the Mitchell

I decision was an error when decided and not a correct decision abrogated by a subsequent change

in the law. See Harries, 417 F.3d at 635; Abdur’Rahman, 226 F.3d at 705-06. In fact, Mitchell I

must be considered an error because the later panels of this court lacked the power to overrule the

decision of the prior panel. Compare Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689

(6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel.”) with Habich

v. City of Dearborn, 331 F.3d 524, 530 n.2 (6th Cir. 2003) (“When an opinion of this court conflicts

with an earlier precedent, we are bound by the earliest case.”). As it is clear that Mitchell’s Rule


                                                  -8-
60(b) motion alleges a mistake made by this court in Mitchell I, rather than a change in the law, his

motion is properly made pursuant to Rule 60(b)(1). Abdur’Rahman, 491 F.3d at 741; Pierce v.

United Mine Workers of Am. Welfare & Ret. Fund for 1950 & 1974, 770 F.2d 449, 451 (6th Cir.

1985) (“This Court has recognized a claim of legal error as subsumed in the category of mistake

under Rule 60(b)(1).”). Therefore, the district court abused its discretion by granting relief under

Rule 60(b)(6). See McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 595-

96 (6th Cir. 2002).

        Construing Mitchell’s motion pursuant to Rule 60(b)(1), it must be denied as untimely filed.

A motion made pursuant to Rule 60(b)(1) must be made “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,

Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir. 2006), and the district court does not have the

discretion to extend the period of limitation, Smith v. Sec’y of Health & Human Servs., 776 F.2d

1330, 1332-33 (6th Cir. 1985); see also Fed. R. Civ. P. 6(b).3 Mitchell argues, and the district court

determined, that his motion was timely filed because, prior to the June 2005 Supreme Court decision

in Gonzalez, relief from judgment under Rule 60(b) was treated as a successive habeas petition under

McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996). While enforcement of the time limit may seem

unfair, “[t]he general purpose of Rule 60(b) is to strike a proper balance between the conflicting

principles that litigation must be brought to an end and that justice must be done.” Charter Twp. of

Muskegon v. City of Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (internal quotation marks and

alteration omitted). Such balancing necessarily creates situations in which an alleged injustice can


        3
          Federal Rule of Civil Procedure 6(b) states in relevant part “[a court] may not extend the
time for taking any action under Rule[] . . . 60(b), except to the extent and under the conditions stated
in [it].”

                                                  -9-
no longer be remedied. The one-year deadline for seeking certain grounds of relief also “limit[s] the

friction between Rule 60(b) and the successive-petition prohibitions of AEDPA.” Gonzalez, 545

U.S. at 534-35. There is no question that Mitchell’s Rule 60(b) motion was filed more than a year

after the district court’s judgment. Therefore, having found the motion to have been untimely filed,

we reverse the decision of the district court.




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