                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0178p.06

                         UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                              X
                                         Petitioner-Appellee, -
 SEDLEY ALLEY,
                                                               -
                                                               -
                                                               -
                                                                               No. 04-5596
                v.
                                                               ,
                                                                >
 RICKY BELL, Warden,                                           -
                                       Respondent-Appellant. -
                                                              N

                                              Filed: April 11, 2005*
 Before: BOGGS, Chief Judge; MARTIN, RYAN, BATCHELDER, DAUGHTREY, **MOORE,
         COLE, CLAY, GILMAN, ROGERS, SUTTON, and COOK, Circuit Judges.
                                               _________________
                                                    ORDER
                                               _________________
        On November 2, 2003, the district court issued an order staying Alley’s execution and
holding in abeyance any proceedings on his purported Rule 60(b) motion until this court decided
In Re Abdur’Rahman. This ruling was appealed to our court, and oral argument was held on June
16, 2004. On December 13, 2004, this court issued its opinion in Abdur’Rahman, 392 F.3d 174 (6th
Cir. 2004) (en banc), but the district court was unable to consider Abdur’Rahman’s impact on the
particular circumstances of Alley’s filing because Alley’s case was before this court on appeal.
       On December 14, 2004, this court issued an opinion on that appeal, vacating the stay of
execution and determining that Alley’s filing could not be considered a proper Rule 60(b) motion
under Abdur’Rahman. Alley v. Bell, 392 F.3d 822 (6th Cir. 2004). Alley sought rehearing en banc.
         We now grant rehearing en banc, and remand the case to the district court to determine, in
the first instance, whether Alley’s motion can be considered a proper Rule 60(b) motion under this
court’s opinion in Abdur’Rahman.




        *
         This order was originally issued as an “unpublished order” filed on April 11, 2005. The court has now
designated the order as one recommended for full-text publication.
        **
            Judge Gibbons recused herself from participation in this matter.


                                                           1
No. 04-5596            Alley v. Bell                                                              Page 2


        R. GUY COLE, JR., Circuit Judge, concurring, in which MARTIN, DAUGHTREY,
MOORE, and CLAY, JJ. joined. I concur in the Court’s decision vacating the panel opinion and
remanding this case to the district court, but note that I would find that Alley’s petition is properly
considered a Rule 60(b) motion under this Court’s precedent in In re Abu Ali Abdur’Rahman, 392
F.3d 174 (6th Cir. 2004) (en banc). Of course, to fall within Rule 60(b)’s timing exception, Alley
must allege actual fraud, rather than mere misrepresentation, as one section of Alley’s brief argues.
See Fed. R. Civ. P. 60(b). However, Alley alleges that state attorneys were aware of the existence
of significant exculpatory evidence, and that these attorneys nonetheless filed an affidavit in federal
court stating that they had disclosed all exculpatory evidence, while willfully (or at least recklessly)
concealing the evidence. These allegations are sufficient to allege fraud. See Demjanjuk v.
Petrovsky, 10 F.3d 338, 348, 352-54 (6th Cir. 1993).
        Moreover, Alley’s allegation regarding the affidavit, whether true or not, has nothing to do
with his state court proceedings and, indeed, would not be relevant to a trial-court-related Brady
claim. State attorneys certainly could have willfully or recklessly withheld evidence from the
federal habeas court without having willfully or recklessly done so at Alley’s state trial — in fact
none of the attorneys about whose actions Alley complains appeared for the State at Alley’s trial.
As a result, the resolution of Alley’s Rule 60(b) motion would be irrelevant to the constitutionality
of his state trial, since success on this motion would merely serve to reopen his original habeas
proceeding without determining facts that would require a finding that his state trial was
unconstitutional. Thus, this claim is not effectively a second or successive petition challenging the
validity of his state trial — to the contrary, Alley’s allegations of fraud relate only to the validity of
the federal habeas proceeding. See Abdur’Rahman, 392 F.3d at 181. Accordingly, under our
precedent in Abdur’Rahman, Alley’s motion is properly viewed as a Rule 60(b) motion unaffected
by AEDPA, and the district court has jurisdiction to consider it.
        Perhaps Alley’s allegations of fraud are true, and perhaps they are not — obviously it will
be up to the district court to consider the Rule 60(b) motion and determine if fraud actually occurred.
I thus concur in this Court’s decision to remand this matter to the district court.
                                        ENTERED BY ORDER OF THE COURT


                                              /s/ Leonard Green
                                        __________________________________
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