                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                           File Name: 04a0428p.06

                        UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                            X
                                                  Movant. -
 In re ABU-ALI ABDUR’RAHMAN,
                                                             -
                                                             -
 ________________________
                                                             -
                                                                    Nos. 02-6547/6548

                                                             ,
 ABU-ALI ABDUR’RAHMAN,                                        >
                                      Petitioner-Appellant, -
                                                             -
                                                             -
                                                             -
            v.

                                                             -
                                      Respondent-Appellee. -
 RICKY BELL, Warden,
                                                            N

                              Appeal from the United States District Court
                            for the Middle District of Tennessee at Nashville.
                            No. 96-00380—Todd J. Campbell, District Judge.
                                       Argued: December 3, 2003
                                Decided and Filed: December 13, 2004
 Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE,
          CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.
                                           _________________
                                               COUNSEL
ARGUED: Bradley A. MacLean, STITES & HARBISON, Nashville, Tennessee, for Petitioner. Joseph
F. Whalen III, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Respondent.
ON BRIEF: Bradley A. MacLean, STITES & HARBISON, Nashville, Tennessee, William P. Redick, Jr.,
Whites Creek, Tennessee, for Petitioner. Joseph F. Whalen III, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Respondent.
                                           _________________
                                               OPINION
                                           _________________
      COLE, J., delivered the opinion of the court, in which MARTIN, DAUGHTREY, MOORE, CLAY,
GILMAN, and GIBBONS, JJ., joined. SILER, J. (pp. 11-16), delivered a separate dissenting opinion, in
which BOGGS, C. J., BATCHELDER, ROGERS, SUTTON, and COOK, JJ., joined.
        R. GUY COLE, JR., Circuit Judge. Petitioner Abu-Ali Abdur’Rahman appeals the district court’s
denial of his motion for relief from that court’s earlier judgment denying his petition for a writ of habeas


                                                     1
Nos. 02-6547/6548       In re Abdur’Rahman                                                                Page 2


corpus. Abdur’Rahman v. Bell, 999 F. Supp. 1073 (M.D. Tenn. 1998). The district court held that
petitioner’s motion for relief from judgment, which he filed pursuant to Rule 60(b), amounted to an
impermissible second or successive habeas petition as defined by 28 U.S.C. § 2244(b)(1).
        This case requires us to determine whether and under what circumstances a prisoner may use Rule
60(b) of the Federal Rules of Civil Procedure to seek relief from a judgment dismissing a habeas petition.
At issue, in particular, is whether and to what extent the availability of Rule 60(b) is restricted by the limits
imposed on the filing of second or successive habeas petitions by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) of 1996, Pub.L. No. 104-132 §§ 101-107, 110 Stat. 1214, 1217-26 (codified as
amended in 28 U.S.C. §§ 2244, 2253-2255, 2261-2266 (2000)). Some courts have held that any motion
labeled as one pursuant to Rule 60(b) remains fully viable in the habeas context and unaffected by the
strictures of AEDPA. Others – including the dissent in this case – would treat any motion based on one or
more of the grounds enumerated in Rule 60(b) as a second or successive habeas petition, even if the motion
contained no constitutional claim at all.
         Today, we eschew both of those extremes and align ourselves with those courts that use a functional
approach to determine when a district court may entertain a Rule 60(b) motion filed by a prisoner who seeks
to vacate a district court’s judgment denying him habeas relief. Although a petitioner should not be
permitted to use Rule 60(b) to avoid AEDPA’s limitations on second or successive habeas petitions, the
solution to that problem is not to bar Rule 60(b) motions in the habeas context altogether. Instead, we hold
that a Rule 60(b) motion should be treated as a second or successive habeas petition only if the factual
predicate in support of the motion constitutes a direct challenge to the constitutionality of the underlying
conviction. In cases which the factual predicate in support of the motion attacks the manner in which the
earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b),
the motion should be adjudicated pursuant to Rule 60(b). See Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir.
2003).
       Because Abdur’Rahman’s motion does not constitute a direct challenge to the constitutionality of
his conviction, the motion is not the functional equivalent of a second or successive habeas petition. Rather,
Abdur’Rahman’s motion challenges the procedural basis on which the district court’s judgment denying
his habeas petition rested and, therefore, should be adjudicated pursuant to Rule 60(b). For that reason, we
REVERSE the district court’s order of dismissal and REMAND petitioner’s motion to the district court
for consideration as a motion brought pursuant to Rule 60(b).
                                                       I.
       The history of this case is long and circuitous. See Abdur’Rahman v. Bell, 537 U.S. 88 (2002)
(Stevens, J., dissenting from the dismissal of certiorari as improvidently granted); Abdur’Rahman v. Bell,
No. 3:96-0380 (M.D. Tenn., Dec. 17, 2002). Therefore, we set forth only the procedural background
relevant to resolving the issues before us.
         In 1988, on direct appeal, the Tennessee Supreme Court affirmed Abdur’Rahman’s conviction and
death sentence for first-degree murder. His attempts to obtain post-conviction relief in the state court system
were similarly unsuccessful. In 1996, he filed an application for a writ of habeas corpus in the federal
district court and advanced several constitutional claims, two of which raised troubling questions. The first
claim challenged the competency of petitioner’s trial counsel; the second contained serious allegations of
prosecutorial misconduct.
       After hearing evidence on both claims, on April 8, 1998, the district court entered an order
addressing each claim. First, the district court granted relief as to the ineffective assistance of counsel claim.
Having found trial counsel ineffective, the district court granted habeas relief as to petitioner’s sentence and
vacated the death sentence, although the court denied relief as to petitioner’s murder conviction. On appeal,
however, a divided panel of this Court reinstated the death sentence, finding that although Abdur’Rahman’s
Nos. 02-6547/6548       In re Abdur’Rahman                                                                 Page 3


counsel’s performance was deficient, Abdur’Rahman had not been prejudiced. Abdur’Rahman v. Bell, 226
F.3d 696 (6th Cir. 2000), cert. denied, 534 U.S. 970 (2001).
        Second, the district court held that the prosecutorial misconduct claims were procedurally barred
because Abdur’Rahman failed to seek discretionary review of those claims in the Tennessee Supreme Court
and the time for doing so had expired. Abdur’Rahman, 999 F. Supp. at 1080-83. However, on June 28,
2001, while the appeal from the district court’s denial of Abdur’Rahman’s habeas petition was pending –
and in response to the United States Supreme Court’s decision in O’Sullivan v. Boerckel, 526 U.S. 838
(1999) – the Tennessee Supreme Court promulgated a rule clarifying that criminal defendants were not
required to appeal to the Tennessee Supreme Court in order to be deemed to have exhausted all available
state remedies concerning claims of error for federal habeas corpus purposes. See Tennessee Supreme Court
Rule 39 (“TSCR 39"). TSCR 39 states in relevant part:
               In all appeals from criminal convictions or post-conviction relief matters from and
       after July 1, 1967, a litigant shall not be required to ... file an application for permission to
       appeal to the Supreme Court of Tennessee following an adverse decision of the Court of
       Criminal Appeals in order to be deemed to have exhausted all available state remedies
       respecting a claim of error. Rather, when the claim has been presented to the Court of
       Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be
       deemed to have exhausted all available state remedies available for that claim.
       As the Tennessee Supreme Court stated, TSCR 39 was designed to “clarify that denial of relief by
the [Tennessee] Court of Criminal Appeals shall constitute exhaustion of state remedies for federal habeas
corpus purposes.” See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee:
Exhaustion of Remedies.
        TSCR 39 made it clear that the district court’s refusal to consider Abdur’Rahman’s prosecutorial
misconduct claims on the merits rested on faulty ground because Abdur’Rahman was never required to seek
discretionary review of his prosecutorial misconduct claims in the Tennessee Supreme Court, as the district
court believed he was. Petitioner alerted the district court to this error on November 2, 2001, when he filed
a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from the district
court’s judgment of April 8, 1998, which dismissed his prosecutorial misconduct claims as procedurally
barred. Petitioner’s motion did not assert any new constitutional claims and did not rely on any newly
discovered evidence. It merely asked the district court to vacate its order on the ground that its procedural
bar ruling was based on the erroneous assumption that Abdur’Rahman was required to appeal his
prosecutorial misconduct claims to the Tennessee Supreme Court.
        Relying on McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996), which declared that “[w]e
agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive
habeas corpus petition,” the district court characterized petitioner’s motion as a second or successive habeas
corpus application, governed by 28 U.S.C. § 2244. On that basis, the district court denied the motion,
dismissed it for lack of jurisdiction, and transferred the case to the Court of Appeals pursuant to 28 U.S.C.
§ 1631. A divided panel of this Court denied petitioner relief, stating that “the district court properly found
that a Rule 60(b) motion is the equivalent of a second or successive habeas corpus petition,” and then held
that Abdur’Rahman’s petition did not satisfy the gateway criteria set forth in 28 U.S.C. § 2244(b)(2) for the
filing of such a petition. Abdur’Rahman v. Bell, Nos. 98-6568/6569, 01-6504 (6th Cir., Jan. 18, 2002). This
Court subsequently granted petitioner’s request for rehearing en banc.
                                                      II.
       We turn to the question before us: Is a motion for relief pursuant to Rule 60(b) equivalent to a
second or successive habeas petition pursuant to AEDPA? After addressing that question we will apply the
answer to Abdur’Rahman’s case.
Nos. 02-6547/6548       In re Abdur’Rahman                                                             Page 4


       The courts of appeals that have heretofore grappled with this question have provided divergent
answers. The Second Circuit seems to be the only court of appeals to have ruled categorically that a motion
pursuant to Rule 60(b), brought after a district court’s ruling on an initial habeas petition, is not a second
or successive habeas petition, and that such motions should always be treated as any other motion pursuant
to Rule 60(b). Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001).
         At the other end of the spectrum, several courts of appeals, as well as the dissent in our case, have
concluded that a Rule 60(b) motion in a habeas case must always – or almost always – be treated as a second
or successive habeas petition pursuant to AEDPA. See, e.g., Gonzalez v. Sec’y for Dep’t of Corrs., 366 F.3d
1253 (11th Cir. 2004) (en banc) (holding that Rule 60(b) motions must always be treated as second or
successive habeas petitions except where the final judgment is recalled or reopened to correct clerical errors
in the judgment itself or where there was fraud upon the federal court which led to the denial of the habeas
petition); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (holding that the successive petition
restrictions contained in 28 U.S.C. § 2244(b) apply to Rule 60(b) motions). A panel of this Circuit has
trumpeted that view as well. McQueen, 99 F.3d at 1335 (“We agree with those circuits that have held that
a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition ....”). According to
the Eleventh Circuit, which is the leading proponent of this view, permitting Rule 60(b) to operate as it
customarily does would allow prisoners to circumvent AEDPA’s restrictions on second and successive
habeas petitions in federal courts. Gonzalez, 366 F.3d at 1256 (“One of the most popular vehicles used in
the attempted end-runs [around AEDPA] is a Fed. R. Civ. P. 60(b) motion requesting that the prior judgment
denying relief be set aside.”).
        But neither of the categorical approaches just described is satisfactory. The wholly unrestricted
approach taken by the Rodriguez court fails to appreciate the potential for some Rule 60(b) motions to
subvert AEDPA’s objectives. But the rigid approach, adopted by the Eleventh Circuit and the dissent here,
prohibits too much. It fails to appreciate both the significant functional differences between Rule 60(b)
motions and habeas petitions and that those differences mean that many Rule 60(b) motions will not run
afoul of AEDPA.
        Rule 60(b) motions and habeas petitions serve different purposes. Contrary to the dissent’s
assertion, Rule 60(b) does not permit parties to relitigate the merits of claims, or to raise new claims that
could have been raised during the litigation of the case or in the initial habeas petition. Rather, the purpose
of a Rule 60(b) motion is to allow a district court to reconsider its judgment when that judgment rests on
a defective foundation. The “factual predicate [of a Rule 60(b) motion] deals with some irregularity or
procedural defect in the procurement of the judgment denying habeas relief.” Rodwell, 324 F.3d at 70.
        A second or successive habeas petition “is a different species.” Gonzalez, 366 F.3d at 1292 (Tjoflat,
J., concurring in part and dissenting in part). Like an initial habeas petition, a second or successive habeas
petition seeks to invalidate the state court’s judgment of conviction based on a constitutional error. Pursuant
to AEDPA, a “second or successive” habeas petition is meant to address two specific types of constitutional
claims by prisoners: (1) claims based on “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court” and that was “previously unavailable;” and (2) claims that rely on
a rule of constitutional law and that are based on evidence that “could not have been discovered previously
through the exercise of due diligence” and that would establish the petitioner’s factual innocence. 28 U.S.C.
§ 2244(b)(2). In this way, second or successive habeas petitions are based entirely on “the alleged
violations of federal rights” that occur during the criminal trial. Rodriguez, 252 F.3d at 199; see also
Abdur’Rahman, 537 U.S. at 95-96 (“[L]ike all habeas corpus petitions, [a second or successive habeas
petition] is meant to remedy constitutional violations ... while a Rule 60(b) motion is designed to cure
procedural violations in an earlier proceeding – here, a habeas corpus proceeding – that raise questions
about the proceeding’s integrity.”) (Stevens, J., dissenting from the dismissal of certiorari as improvidently
granted).
Nos. 02-6547/6548       In re Abdur’Rahman                                                             Page 5


        The dissent would hold that, with the exception of the ground of fraud provided in Rule 60(b)(3),
AEDPA precludes the district courts of this Circuit from entertaining Rule 60(b) motions filed by prisoners
seeking to vacate a district court’s judgment denying them habeas corpus relief. To obtain relief on any of
the remaining grounds – Rule 60(b)(1), (2), (4), (5), or (6) – the petitioner would have to fashion his claim
as a second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2), and must apply to this Court
pursuant to 28 U.S.C. § 2244(b)(3) for leave to file it. In other words, the dissent would treat any motion
based on one or more of the grounds enumerated in Rule 60(b) as a habeas petition, even if the motion
contained no constitutional claim at all. But that approach plainly ignores the significant functional
difference between Rule 60(b) motions and habeas petitions, discussed above.
         Moreover, the dissent offers no reason for permitting Rule 60(b)(3) motions based on fraud while
prohibiting motions brought pursuant to the other provisions enumerated in Rule 60(b). This is puzzling,
because fraud is not the only reason to doubt the integrity of a habeas judgment. Rule 60(b)(1), for instance,
states that a federal judgment may be reconsidered and vacated if it was based on “mistake, inadvertence,
surprise, or excusable neglect.” As the Second Circuit noted, the integrity of a habeas judgment might be
called into doubt pursuant to Rule 60(b)(1) where the respondent engaged in unfair surprise by failing to
notify the petitioner of the witnesses it planned to call in the habeas hearing. Rodriguez, 252 F.3d at 199.
The dissent in our case offers no reason why fraud on the court would be a valid basis for a Rule 60(b)(3)
motion, while such a claim of unfair surprise, filed as a Rule 60(b)(1) motion, would have to be
characterized as a second or successive habeas petition. “In each situation, the motion challenges only the
etiology of the habeas judgment itself,” not the constitutionality of the underlying conviction. Rodwell, 324
F.3d at 70. Accordingly, it makes sense to treat both motions pursuant to Rule 60(b).
        There is another crucial distinction between Rule 60(b) motions and habeas petitions. Granting a
second or successive habeas petition invalidates a prisoner’s conviction and/or sentence. Granting a Rule
60(b) motion has no such effect. It merely reinstates the previously-dismissed habeas petition, opening the
way for further proceedings. Abdur’Rahman, 537 U.S. at 94 (“[T]he difference [between a second or
successive habeas petition and a Rule 60(b) motion] is defined by the relief that the applicant seeks.”)
(Stevens, J., dissenting from the dismissal of certiorari as improvidently granted). Although a Rule 60(b)
motion is “undoubtedly a step on the road to the ultimate objective of invalidating the judgment of
conviction,” the motion itself does not seek that relief. Rodriguez, 252 F.3d at 198. As the Second Circuit
logically pointed out, “[t]he fact that the Rule 60(b) motion contemplates ultimately the vacating of the
conviction is shared with every motion the petitioner might make in the course of pursuing his habeas –
motions to compel disclosure or quash the respondent’s discovery demands, motions for extension of time
to answer the adversary’s motion, motions to be provided with legal assistance, motions for summary
rejection of respondent’s contentions,” and even motions for relief from judgment grounded in fraud, which
the dissent here would recognize. Id. at 198-99. But this fact does nothing to convert the motion into a
second or successive habeas petition.
        Having distinguished between motions pursuant to Rule 60(b) and second or successive habeas
petitions, we are mindful that prisoners might attempt to subvert AEDPA by dressing second or successive
habeas petitions in Rule 60(b) garb. The solution to this problem, however, is to adopt a conceptual
framework that curtails the potential for abuse while permitting Rule 60(b) motions in appropriate
circumstances. To that end, we adopt the First Circuit’s approach to this issue:
       The inquiry must proceed case by case. The [district] court must examine the factual
       predicate set forth in support of a particular motion. When the motion’s factual predicate
       deals primarily with the constitutionality of the underlying state [or federal] conviction or
       sentence, then the motion should be treated as a second or successive habeas petition. This
       situation should be distinguished from one in which the motion’s factual predicate deals
       primarily with some irregularity or procedural defect in the procurement of the judgment
       denying habeas relief. That is the classic function of a Rule 60(b) motion, and such a motion
       should be treated within the usual confines of Rule 60(b).
Nos. 02-6547/6548       In re Abdur’Rahman                                                                Page 6


Rodwell, 324 F.3d at 70 (internal citation omitted).
         This approach is functional in nature. Whether a motion will be treated as one pursuant to Rule
60(b) or as a second or successive habeas petition will depend not on the label affixed to the motion, but
on its substance. Id. at 71. It is only when a petitioner presents a direct challenge to the constitutionality
of the underlying conviction that the petition should be treated as a second or successive habeas petition.
But if there is no such direct challenge and the petitioner instead challenges the integrity of the district court
opinion for one of the reasons provided in Rule 60(b), then the district court must treat the motion as one
pursuant to Rule 60(b). Compare Hamilton v. Newland, 374 F.3d 822, 824 (9th Cir. 2004) (holding that
habeas petitioner’s motion for reconsideration of denial of habeas relief must be treated as motion pursuant
to Rule 60(b) where petitioner sought to have district court reconsider its prior ruling that his habeas claims
were barred by the one-year limitations period under AEDPA), with Rodwell, 324 F.3d at 71-72 (holding
that petitioner’s motion for relief from judgment denying federal habeas relief, brought pursuant to Rule
60(b), was a second or successive habeas petition, and thus was required to be dismissed, because it asked
the district court for an opportunity to offer facts – namely, that one of the key witnesses against petitioner
was an undercover government agent – that would prove that his state-court conviction for murder was
constitutionally infirm), and Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc) (treating
a Rule 60(b) motion that raised a new claim that the state failed to disclose exculpatory evidence as a
successive habeas petition). This ruling applies with equal force to motions brought in the 28 U.S.C. § 2255
context since AEDPA incorporates by reference in § 2255 the same “second or successive” rules imparted
in § 2254.
         Although, as the First Circuit noted, “this test [would not] operate with mathematical precision,” it
would preserve the independent goals of both Rule 60(b) and AEDPA, and we should be “confident that
... the district [court would] be able to sift wheat from chaff without undue difficulty.” Rodwell, 324 F.3d
at 71.
      The holding in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996), that endorsed the rigid approach
we have just rejected is hereby overruled.
                                                       III.
        We now consider Abdur’Rahman’s motion, which asks the district court to vacate its judgment
denying his habeas petition on the ground that he was never required to raise his prosecutorial misconduct
claims before the Tennessee Supreme Court for exhaustion purposes. That motion does not present a direct
challenge to the constitutionality of his state court conviction. Instead, it relates to the integrity of the
federal habeas judgment – and specifically, the basis for the district judge’s procedural default ruling. If
Abdur’Rahman’s motion were granted, it would simply result in the reopening of the federal habeas
proceeding, not the vacation of the state criminal judgment. Accordingly, the motion should be treated as
one pursuant to Rule 60(b), not as a second or successive habeas petition.
         The dissent erroneously argues that Abdur’Rahman’s motion is a second or successive habeas
petition because his prosecutorial misconduct claims – by virtue of being deemed procedurally defaulted
– were adjudicated “on the merits. ” But that argument privileges the form of the judicial disposition over
the substance of the motion, and once again ignores the key functional differences between Rule 60(b)
motions and second or successive habeas petitions. That procedural default rulings are typically considered
rulings “on the merits” does not change the fact that Abdur’Rahman’s motion does not directly seek
relitigation of claims already adjudicated. Rather, Abdur’Rahman challenges the procedural basis on which
the district court’s judgment concerning his prosecutorial misconduct claim rested. See Hamilton, 374 F.3d
at 824 (holding that habeas petitioner’s motion for reconsideration of denial of habeas relief must be treated
as motion pursuant to Rule 60(b) where petitioner sought to have district court reconsider its prior ruling
that his habeas claims were barred by the one-year limitations period under AEDPA).
Nos. 02-6547/6548           In re Abdur’Rahman                                                                             Page 7


      Rule 60(b) authorizes the district courts to relieve a party to a civil action from the force of a final
judgment on the following grounds:
         (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence
         which by due diligence [the party] could not have ... discovered in time to move for a new
         trial under Rule 59(b); (3) fraud ... misrepresentation, or other misconduct of an adverse
         party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged,
         or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is
         no longer equitable that the judgment should have prospective application; or (6) any other
         reason justifying relief from the operation of judgment.
         Abdur’Rahman has characterized his motion as one pursuant to Rule 60(b)(6), which permits relief
from judgment for “any other reason justifying relief from the operation of judgment.” This provision has
been called a “reservoir of equitable power” to do justice in a particular case. Compton v. Alton S.S. Co.,
Inc., 608 F.2d 96, 106 (4th Cir. 1979). For that reason, there is concern for abuse of a Rule 60(b)(6) motion
in habeas proceedings – perhaps more concern than there is with other Rule 60(b) motions whose nature
is more easily ascertained. But Rule 60(b)(6) has been narrowly interpreted and courts have stressed that
such motions should only be raised in exceptional or “extraordinary circumstances.” Liljeberg v. Health
Svcs. Acquisition Corp., 486 U.S. 847, 863-64 (1988); Pierce v. United Mine Workers, 770 F.2d 449, 451
(6th Cir. 1985). Furthermore, this provision and other provisions of Rule 60(b) are mutually exclusive –
that is, if the reason offered for relief from judgment could be considered under one of the more specific
clauses of Rule 60(b)(1) -(5), then relief cannot be granted under Rule 60(b)(6). Liljeberg, 486 U.S. at 863
& n.11.
         Here, the only other provision pursuant to which Abdur’Rahman’s motion might conceivably be
brought is Rule 60(b)(1)’s provision for relief from judgment when there has been a “mistake.” But in this
case, it simply stretches logic to say that the district court made a “mistake” when it held Abdur’Rahman’s
prosecutorial misconduct claim unexhausted based on his failure to appeal it to the Tennessee Supreme
Court. Although TSCR 39 – which states that defendants do not have to appeal to the Tennessee Supreme
Court in order for their claims to be considered exhausted for habeas purposes – is a clarification of pre-
existing law, review by a state supreme court was, before TSCR 39’s promulgation, an available state
remedy that defendants traditionally pursued because all available state remedies had to be exhausted prior
to the claims being eligible for habeas review. See Adams v. Holland, 330 F.3d 398, 405 (6th Cir. 2003)
(holding that a discretionary1 appeal to the Tennessee Supreme Court is not required for federal exhaustion
purposes under TSCR 39) .


    1
       In O’Sullivan, the Supreme Court held that absent an express pronouncement by the State, a federal court must require a
habeas petitioner to exhaust all state remedies, including discretionary review before the state supreme court, in order to satisfy
federal habeas exhaustion requirements. See O’Sullivan, 526 U.S. at 847-48. Therefore O’Sullivan explicitly noted that a State
could require something less than discretionary review before the highest state court for the purposes of federal exhaustion.
     Contrary to the dissent’s assertions, Adams v. Holland did not “effectively overrule[] O’Sullivan v. Boerckel, 526 U.S. 838
(1999).” In O’Sullivan, the Supreme Court noted under 28 U.S.C. § 2254(c), a habeas petitioner must give state courts a “fair
opportunity to act on their claims .... Comity thus dictates that when a prisoner alleges that his continued confinement for a state
court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any
necessary relief.” O’Sullivan, 526 U.S. at 844 (emphasis in original, interior citations removed). This was required even in
Illinois, which has discretionary state supreme court review, and where Illinois Supreme Court Rule 315(a) arguably discouraged
the filing of “petitions raising routine allegations of error.” Id. at 846.
    However, the Supreme Court noted that such a ruling may, in fact, result in a greater burden on the state supreme courts.
    We acknowledge that the rule we announce today – requiring state prisoners to file petitions for discretionary review
    when that review is part of the ordinary appellate review procedure in the State – has the potential to increase the number
    of filings in state supreme courts. We also recognize that this increased burden may be unwelcome in some state courts
    because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented
    to a federal habeas court. See, e.g., In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases,
Nos. 02-6547/6548            In re Abdur’Rahman                                                                                Page 8


         Indeed, prior to TSCR 39’s promulgation, federal courts interpreting Tennessee law required appeal
to the Tennessee Supreme Court as part of the habeas exhaustion requirement. See, e.g., Jones v. Jones, 76
F. Supp. 2d 850, 856-57 (E.D. Tenn. 1999); Cole v. Campbell, 703 F. Supp. 657, 659 (M.D. Tenn. 1988);
Layman v. Russell, 300 F. Supp. 430, 431 (E.D. Tenn. 1969). These district courts – and the district court
in this case – did not make a “mistake” in requiring defendants to appeal to the Tennessee Supreme Court,
because they simply had no reason – based on United States Supreme Court law, state law, and federal court
precedents – to know otherwise. Indeed, this 2presumption was later ratified by the Supreme Court in
O’Sullivan. See O’Sullivan, 526 U.S. at 847-48. But TSCR 39 eventually clarified that such an appeal was
not, in fact, required. As such, Abdur’Rahman’s motion is properly characterized as a Rule 60(b)(6) motion.
It does not relitigate the merits of his prosecutorial misconduct claim, but rather asks the district court to
reconsider its judgment, which was based on a defective foundation: namely, an unclear state of the law,
which was later clarified. This analysis does not chart new legal territory, as the dissent suggests. Federal
courts have applied Rule 60(b)(6), as opposed to a Rule 60(b)(1) “legal mistake,” where a state supreme
court clarifies existing state law. See, e.g., Heirs-At-Law & Beneficiaries of Gilbert v. Dresser Indus., Inc.,
158 F.R.D. 89, 92 (N.D. Miss. 1993).
       Rule 60(b)(6) has no specific time limitation within which it must be filed, save that it be brought
within a “reasonable time.” Fed. R. Civ. P. 60(b)(6). The reasonable time standard has been interpreted
to depend on the factual circumstances of each case. Smith v. Sec’y of Health and Human Svcs., 776 F.2d
1330, 1333 (6th Cir. 1985). Here, Abdur’Rahman has satisfied the reasonable time requirement. TSCR 39



    321 S.C. 563, 471 S.E.2d 454 (1990); see also State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989). Under these
    circumstances, Boerckel may be correct that the increased unwelcome burden on state supreme courts disserves the
    comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires
    the exhaustion of any specific state remedy when a State has provided that the remedy is unavailable.
Id. at 847 (emphasis in original).
     As noted in the above quotation, the O’Sullivan majority cited approvingly to South Carolina’s statement regarding habeas
exhaustion, In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). See
O’Sullivan, 526 U.S. at 847. Justice Souter, writing separately, quoted the South Carolina rule:
    [I]n all appeals from the criminal convictions or post-conviction relief matters, a litigant shall not be required to petition
    for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have
    exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court
    of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available
    state remedies.
Id. at 849 (citing In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990)).
Justice Souter further noted “[The majority’s citation of the South Carolina rule] should not be read to suggest something more:
that however plainly a State court may speak, its highest court must be subjected to constant applications for a form of
discretionary review that the State wishes to reserve for truly extraordinary cases, or else be forced to eliminate that kind of
discretionary review.” Id. at 849-50.
     In response to O’Sullivan, the Tennessee Supreme Court promulgated TSCR 39, modeled after the South Carolina Rule, to
clarify that a request for discretionary review was in fact, not required for the purposes of exhaustion. This is the essential holding
of Adams, 330 F.3d at 403-04.
     Given the Tennessee Supreme Court’s adoption of a rule specifically endorsed by the majority opinion in O’Sullivan for a
purpose specifically advocated by a concurring justice, it is surprising that the dissent believes Adams somehow overrules
Supreme Court precedent.
    2
       For this reason, the dissent in not persuasive in stating that the district court made a “legal mistake” in ruling the petitioner
failed to exhaust. Like the Supreme Court in O’Sullivan, the district court merely applied a presumption that a state supreme court
wishes to be the first court to review a habeas petitioner’s claims. See O’Sullivan, 526 U.S. at 847-48. Such a presumption, like
all presumptions, does not necessarily determine whether the state court actually wishes to be the first court to review these claims.
Accordingly, the district court cannot be viewed as making a “legal mistake” by correctly applying presumptions later endorsed
by the Supreme Court – presumptions which may or may not accurately reflect the actual wishes of the state supreme court. Nor
can the state supreme court be said to change its own law where it merely corrects a presumption of a federal court regarding state
court procedures applicable to state court review.
Nos. 02-6547/6548       In re Abdur’Rahman                                                               Page 9


became effective on June 28, 2001 and Abdur’Rahman filed his Rule 60(b) motion approximately four
months later, on November 2, 2001.
        As noted above, Rule 60(b)(6) should be used only in “extraordinary circumstances.” Liljeberg, 486
U.S. at 863-64. Although TSCR 39 is not accurately characterized as a change in law, but rather a
clarification of the law, the “extraordinary circumstances” analysis here is most analogous to that which
would be used if we were confronting a change in law, and so we apply that analysis here. A change in
decisional law is usually not, by itself, an extraordinary circumstance. Agostini v. Felton, 521 U.S. 203, 239
(1997); Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.
2001). There must be a change in decisional law “coupled with some other special circumstance” to grant
relief under Rule 60(b)(6). Id. at 524.
        In this case, relief pursuant to Rule 60(b)(6) is permissible for two reasons. First, TSCR 39 does not
constitute a clarification in decisional law such that Agostini even applies or such that an “extraordinary
circumstance” is even required. The decisional law in this case is comprised of the precedent governing
claims of prosecutorial misconduct. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963). If the district court
had reached the merits of Abdur’Rahman’s claims and determined that no prosecutorial misconduct took
place, but then the Supreme Court altered Brady such that the district court’s holding was wrong, there
would be no grounds for relief pursuant to Rule 60(b)(6). But TSCR 39 does not similarly alter decisional
law; it clarified the law underlying the district court’s decision not even to reach the merits of
Abdur’Rahman’s constitutional claim. Cf. In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir.
1989) (granting relief pursuant to Rule 60(b)(6) when Congress passed a statute, which capped referee fees
in bankruptcy proceedings, shortly after the parties reached a settlement to pay fees that were four times the
cap; court rejected the argument that unexpected changes in statutory law are similar to situations in which
a party decides not to appeal but then gets a “second bite at the apple” by free-riding off of a change in
decisional law resulting from an unrelated party’s successful appeal, which then alters the case law).
        Second, even if TSCR 39 were considered a clarification of decisional law, there is an “extraordinary
circumstance” here, stemming from the nature of Abdur’Rahman’s “default.” As is well-established
(although sometimes muddled by courts), two types of procedural barriers might preclude federal review
of claims in a habeas petition. The first type, procedural default, is a judicially created rule, grounded in
fealty to comity values and requiring federal courts to respect state court judgments that are based on an
“independent and adequate” state procedural ground. Coleman v. Thompson, 501 U.S. 722, 732 (1991);
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (establishing a four-part test for determining whether
a procedural rule is an independent and adequate state ground). In procedural default cases, the state court
or courts reject a direct or post-conviction appeal because the defendant failed to comply with some state
law or rule concerning timeliness, pleading requirements, sufficient evidence, or the like.
         The second type of bar, exhaustion, is similarly grounded in respect for state court procedures, but
it is federally mandated by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), (c), and requires petitioners to give state
courts a “fair opportunity” to assess petitioners’ claims. O’Sullivan, 526 U.S. at 844. Often, federal courts
will rule that a petitioner’s claim is “defaulted” because the petitioner failed to exhaust his remedies and the
time for refiling an appeal in the state court has passed. The unexhausted claim is then classified as
“procedurally defaulted” and deemed forfeited absent a showing of cause and prejudice. See In re Cook,
215 F.3d 606, 607-08 (6th Cir. 2000).
        This second type of procedural barrier, forfeiture by failure to exhaust, is what the district court
relied upon in dismissing Abdur’Rahman’s prosecutorial misconduct claim. But exhaustion and procedural
default are distinguishable in an important sense. A defendant could fail to exhaust a claim without
procedurally defaulting if he could return to the state courts to exhaust. Alternatively, as in this case, the
defendant could fail to exhaust without defaulting if a clarification in procedural law indicates that he has
already taken the necessary action to exhaust. That is, forfeiture by failure to exhaust entails a legal fiction,
of sorts. The state court has not rejected an appeal based on a state rule violation; there is no declaration
Nos. 02-6547/6548       In re Abdur’Rahman                                                              Page 10


by the state court of an independent and adequate state ground to which the federal court must defer.
Instead, the federal court makes a presumption that the state court would reject the appeal on independent
and adequate state grounds if the petitioner tried to file it. But, by declaring the claim forfeited, the federal
court saves the petitioner and the state court from respectively preparing and rejecting a futile filing. The
federal court then views the claim through the lens of procedural default to determine whether there is cause
and prejudice to excuse the default. In short, the crux of forfeiture by failure to exhaust is that the federal
court’s default decision rests upon a presumption about what the state court would do, rather than respect
for what a state court actually did. Accordingly, here, the district court’s presumption about Tennessee’s
procedural rules is the factor that renders the promulgation of TSCR 39 an “extraordinary circumstance,”
permitting possible relief pursuant to Rule 60(b)(6). The district court held that Abdur’Rahman’s
prosecutorial misconduct claims were forfeited by failure to exhaust because, it (1) presumed that he had
to raise his prosecutorial misconduct claims before the Tennessee Supreme Court and (2) found that he
failed to do so and that the statute of limitations for returning to state court to exhaust the claims had
expired. The district court then analyzed his claim pursuant to the principles of procedural default.
        But, pursuant to TSCR 39, Abdur’Rahman was never required to raise his claims before the
Tennessee Supreme Court for exhaustion purposes. Accordingly, the speculation supporting the district
court’s default finding crumbles. It then becomes impossible to see how the State of Tennessee, the federal
court, or the dissent here has any interest in upholding the district court’s ruling in this case, which
contravenes the State of Tennessee’s express policy concerning the exhaustion of state remedies. Indeed,
enforcing the district court’s judgment in this case would disserve the comity interests enshrined in AEDPA
by ignoring the state court’s view of its own law. See Stringer v. Black, 503 U.S. 222, 235 (1992) (“It would
be a strange rule of federalism that ignores the view of the highest court of a State as to the meaning of its
own law.”).
                                                     IV.
       We hold that the district court erroneously treated petitioner’s motion as a second or successive
habeas petition. Because Abdur’Rahman’s motion is properly characterized as a motion pursuant to Rule
60(b)(6), we REVERSE and REMAND the case to the district court to consider whether the motion should
be granted, based on the potential merit of Abdur’Rahman’s prosecutorial misconduct claims previously
found to have been procedurally defaulted.
Nos. 02-6547/6548       In re Abdur’Rahman                                                              Page 11


                                               ______________
                                                  DISSENT
                                               ______________
        SILER, Circuit Judge, dissenting. In analyzing the issue presented by this appeal, an important issue
of federal law post-ADEPA, as to which the circuits are currently split, I begin from the dual propositions
that (1) because Abdur’Rahman in his Rule 60(b) motion does not advance any new claims (and merely
seeks reconsideration of the court’s earlier procedural default ruling as to the bulk of his prosecutorial
misconduct claims), 28 U.S.C. § 2244(b)(1) is the controlling subsection; and (2) the scope of this
subsection is less expansive than the text suggests. We know this latter proposition to be true because,
though a literal reading of the statute would hold that any petition filed after a first would be “second or
successive,” the Supreme Court has rejected such a view. See Slack v. McDaniel, 529 U.S. 473 (2000)
(holding that § 2244(b) did not apply to petitioner’s second habeas petition because his first had been
dismissed as unripe); Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (holding that § 2244(b) did not
apply to petitioner’s second habeas petition because his first had been dismissed for want of exhaustion).
But see Stewart v. Martinez-Villareal, 523 U.S. 637, 646-48 (1998) (Scalia, J., dissenting); id. at 648-52
(Thomas, J., dissenting).
        On the other side of the coin, however, it is clear that in considering whether a second petition is
“second or successive” for purposes of § 2244(b)(1), substance and not form is determinative. A subsequent
filing can be considered a “second or successive habeas corpus application” even if not expressly labeled
as such. “In a § 2254 case, a prisoner’s motion . . . [respecting] the basis of the merits of the underlying
decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise,
petitioners could evade the bar against relitigation of claims presented in a prior application . . . .” Calderon
v. Thompson, 523 U.S. 538, 553 (1998).
         The ultimate issue, of course, is just when is a numerically second petition or filing indeed “second
or successive” for purposes of § 2244(b)(1). Beyond the faint contours set up by Slack and Martinez-
Villareal, the boundaries of the statute are admittedly indefinite. But despite the uncertainty on the fringes,
I find this much to be clear: a Rule 60(b) motion that seeks to relitigate a procedural default ruling already
once adjudicated in a first habeas petition is “second or successive” under § 2244(b). To hold otherwise
would be effectively to eviscerate AEDPA.
       In arguing against the applicability of § 2244(b)(1), Abdur’Rahman places heavy reliance on Slack
and Martinez-Villareal, as well as a third case in which the Supreme Court found § 2244(b) inapplicable,
Calderon, 523 U.S. at 538. It is true that such cases can be read to support the proposition that, at least in
some cases, the statute does not mean what it says. The problem, however, is that Slack, Martinez-Villareal,
and Calderon are all easily distinguished and in fact help Abdur’Rahman’s cause little, if at all.
        Calderon arguably is not even a “successive” petition case. There, in the course of holding that the
court of appeals had abused its discretion in recalling its mandate, the Court found § 2244(b)(1) inapplicable
because in recalling the mandate the court of appeals had expressly stated that it had acted on the basis of
petitioner’s first habeas petition. Calderon, 523 U.S. at 554. The court of appeals had not “consider[ed]
matters presented in [the] later filing.” Id. In basing his Rule 60(b) motion on the Tennessee Supreme
Court’s newly-promulgated Rule 39, Abdur’Rahman, however, asked the district court below to consider
matters going beyond those included in his initial petition.
        Slack and Martinez-Villareal are of only slightly greater relevance. In both of these cases, the
dismissal of the petitioner’s first habeas petition was not “on the merits.” Slack, 529 U.S. at 489 (first
habeas petition dismissed as unripe); Martinez-Villareal, 523 U.S. at 645-46 (first habeas petition dismissed
for failure to exhaust). Despite Abdur’Rahman’s efforts to characterize the dismissal of his petition for
procedural default as a purely procedural dismissal that failed to reach the merits of his claim, we have
Nos. 02-6547/6548            In re Abdur’Rahman                                                                             Page 12


consistently held that procedural default determinations are “on the merits.” See In re Cook, 215 F.3d 606,
608 (6th Cir. 2000); see also Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998); Bates v.
Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994). As we noted in Cook, lack of ripeness and failure to exhaust
are defects which may ultimately be cured, at such time allowing the petitioner to bring his claim before a
federal court. Cook, 215 F.3d at 608. Procedural default, on the other hand, is an incurable defect, absent
a showing of cause and prejudice. Id. Where a district court has found procedural default and a lack of
cause and prejudice, that finding fully disposes of the petitioner’s claims.
        In the final analysis, it is this fact - that Adbur’Rahman’s prosecutorial misconduct claims were
adjudicated “on the merits”- that makes this case different. The question may fairly be asked: if a Rule
60(b) motion that seeks to relitigate a claim already adjudicated “on the merits” in a first habeas petition
is not “second or successive,” what is? Abdur’Rahman was entitled to an adjudication; he got it. It is not
the province 1of this court to sit in judgment of Congress’s prohibition against rehashing claims - only to
recognize it. The fact of a “subsequent legal development” does not change this. AEDPA cannot be
whimsically cast aside. We cannot rewrite the language of the statute to provide for a second merits
adjudication when the statute clearly says otherwise. If the statute is to mean anything, it must mean that
when a petitioner has had certain claims in a first habeas petition adjudicated “on the merits,” a subsequent
filing seeking reconsideration of that adjudication is “second or successive.”
        While my view rests primarily on the recognition that Abdur’Rahman’s claims have already been
once adjudicated, I note that it is supported by other considerations. For one, AEDPA’s structure and
history support my conclusion.2 In AEDPA, Congress dramatically altered the habeas corpus statute
governing successive petitions. Most significant was the removal of any reference to “adjudication” on
the “merits.” This textual change suggests that Congress intended to relax the standard for what is
considered a “petition,” and consequently - by inference - what is considered a “successive” petition.
         A vital tenet is that AEDPA’s limitations on habeas relief trump Federal Rule of Civil Procedure
60(b). See, e.g., Pitchess v. Davis, 421 U.S. 482, 489 (1975) (“Since the exhaustion requirement is
statutorily codified, even if Rule 60(b) could be read to apply to this situation it could not alter the statutory
command.”); Dunlap v. Litscher, 301 F.3d 873, 875 (7th Cir. 2002) (Posner, J.) (“Th[e] provisions [of
AEDPA] are clear and bar a district court from using Rule 60(b) to give a prisoner broader relief from a
judgment rendered by the court in a prisoner’s federal habeas corpus . . . proceeding. Otherwise AEDPA’s
limitations on collateral attack would be set at naught.”); Fed. R. Civ. P. 81(a)(2) (“These rules are
applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not
set forth in statutes of the United States . . . .”). Also, even if Rule 60(b) could be said to apply, the language
of the Rule does not support Abdur’Rahman’s position. He made his motion under Rule 60(b)(6), but this
subsection does not include mistakes of law. Mistake of law is included in Rule 60(b)(1), but motions made
under that subsection must be made “not more than one year after the judgment, order, or proceeding was
entered or taken.” Fed. R. Civ. P. 60(b). Thus, the time for making such a motion has long since passed,
and it assuredly is not the case that AEDPA expanded the reach of Rule 60(b) in general or Rule 60(b)(6)

    1
      The majority asks “how the state of Tennessee, the federal courts, or the dissent here has any interest in upholding the district
court’s ruling in this case.” But I submit that this is the wrong question. This court is not called upon to weigh the various
“interests” involved here - only to enforce the plain language of AEDPA.
    2
        The predecessor version of § 2244(b) read:
    When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue
    of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States . . .
    release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ
    of habeas corpus on behalf of such a person need not be entertained . . . unless the application alleges and is predicated
    on a factual or other ground not adjudicated on the hearing of the earlier application for the writ . . . .
28 U.S.C. § 2244(b) (1994) (emphasis added).
Nos. 02-6547/6548       In re Abdur’Rahman                                                            Page 13


in particular. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 (1988) (“Rule 60(b)(6)
. . . grants federal courts broad authority to relieve a party from a final judgment ‘upon such terms as are
just,’ provided that the motion is made within a reasonable time and is not premised on one of the grounds
for relief enumerated in clauses (b)(1) through (b)(5).”); Klapprott v. United States, 335 U.S. 601, 613
(1949) (holding that a party may “not avail himself of the broad ‘any other reason’ clause of 60(b)” if the
motion is based on grounds specified in clause (1), which include “mistake, inadvertence, surprise or
excusable neglect.”). In view of the one-year limitation on claims of a mistake of law or fact, excusable
neglect, newly-discovered evidence and like claims for relief under Rules 60(b)(1)-(3) and in view of the
general rule that Rule 60(b) may not be used “as a substitute for an appeal” or “as a technique to avoid the
consequences of decisions deliberately made yet later revealed to be unwise,” Hopper v. Euclid Manor
Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989), the problem we face today of a conflict between a
provision of Rule 60(b) and AEDPA will rarely, if ever, arise as to the types of claims enumerated in Rule
60(b)(1)-(3).
        Although acknowledging the well-established rule that a party may not bring a claim under Rule
60(b)(6) if his claim could be considered under Rule 60(b)(1), the majority dismisses the applicability of
Rule 60(b)(1), declaring that “the district court in this case [] did not make a ‘mistake’ in requiring
defendants to appeal to the Tennessee Supreme Court, because they simply had no reason–based on United
States Supreme Court law, state law, and federal court precedents–to know otherwise.” The majority also
holds, however, that Rule 60(b)(6) is applicable here because “the district court erroneously treated
petitioner’s motion as a second or successive habeas petition.” In other words, the majority holds that Rule
60(b)(6) is applicable because the district court had previously made a legal error – failing to recognize that
even prior to the promulgation of TSCR 39, Tennessee law did not require criminal defendants to raise their
claims before the Tennessee Supreme Court to meet AEDPA’s exhaustion requirement. But “[t]his Court
has recognized a claim of legal error as subsumed in the category of mistake under Rule 60(b)(1).” Pierce
v. United Mine Workers of Am., Welfare & Retirement Fund for 1950 and 1974, 770 F.2d 449, 451 (6th
Cir.1985) (citing Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir.1983)) (emphasis added); accord United
States v. Reyes, 307 F.3d 451, 456 (6th Cir. 2002). To borrow the majority’s phrase, it “simply stretches
logic” to construe the district court’s decision as anything other than a “mistake.” And yet the majority does
just this without providing a reason to explain how ignorance alone–however justifiable–transforms a
court’s legal error into something other than a “mistake” for the purposes of Fed. R. Civ. P. 60(b).
        The majority nonetheless offers justification for the district court’s failure to know the legal
exhaustion rule by noting that “TSCR 39 eventually clarified that such an appeal was not, in fact, required.”
Here, the majority seems to agree with Adams v. Holland, 330 F.3d 398 (6th Cir. 2003), in which a panel
of this court declared that “Rule 39 clarifies existing law rather than changing the law.” Id. at 405
(emphasis added). While the distinction between clarification and change may seem trivial, the Adams court
recognized that the difference is important in determining the retroactive effect of Rule 39. Because it
deemed Rule 39 a mere clarification–that is, Rule 39 made clear what Tennessee’s rule always had been–the
Adams court found that the rule applied retroactively. Conversely, the Adams court suggested, if Rule 39
effected a change in the exhaustion requirement, then it is unclear that Rule 39 would apply retroactively
in general, in turn raising doubts as to whether Rule 39 would apply to Abdur’Rahman in particular.
        Despite calling Rule 39 a “clarification,” for purposes of determining whether Abdur’Rahman’s
claim may be brought under Rule 60(b)(6), the majority undertakes the “extraordinary circumstances”
analysis ordinarily utilized when the claim is that there has been a change in the law. While the majority
opinion states that it is reasoning by analogy, it is difficult to see how such an analogy would apply unless
the “clarification” substantively “changes” the very rule in question. The majority therefore seeks to
maintain the “clarification” nomenclature of Adams, while infusing it with the meaning of “change.”
       We are left then with two inescapable options: either Rule 39 merely clarifies what had always been
the law, in which case the district court made a legal mistake in holding that Abdur’Rahman had failed to
exhaust his claim because he did not raise it before the Tennessee Supreme Court, or Rule 39 changed the
Nos. 02-6547/6548       In re Abdur’Rahman                                                               Page 14


law, in which case Adams is wrongly decided, and the majority should make clear that it is overruling that
precedent. If the first option is true, then, to the extent Rule 60 motions are now deemed permitted post
AEDPA, Abdur’Rahman’s claim properly arises under Fed. R. Civ. P. 60(b)(1) rather than 60(b)(6)–and
the motion should accordingly be dismissed as untimely. If the second option is true, then the change in
law raises grave questions as to whether retroactive application of the rule is appropriate in this case.
        Finally, while acknowledging that a change in the law alone does not constitute an extraordinary
circumstance sufficient to permit relief under Rule 60(b)(6), the majority nonetheless finds that “the district
court’s presumption about Tennessee’s procedural rules is the factor that renders the promulgation of TSCR
39 an ‘extraordinary circumstance,’ permitting possible relief pursuant to Rule 60(b)(6).” The majority
therefore asserts that the promulgation of what is essentially a “new rule” does not constitute an
extraordinary circumstance for the purposes of Rule 60(b)(6), but the district court’s misapplication of the
“old rule” does meet that requirement. Applying this reasoning, it is difficult to see how any change in the
law will fail to meet the extraordinary circumstance test.
        One other oddity about Adams deserves comment. Whether Rule 39 “clarified” Tennessee law or
“changed” it, there can be little doubt that it effectively overruled O’Sullivan v. Boerckel, 526 U.S. 838
(1999). At issue in O’Sullivan was whether the option of seeking discretionary review in the Illinois
Supreme Court represented an “available” procedure for exhaustion purposes under AEDPA. See 28 U.S.C.
2254(c) (a state prisoner “shall not be deemed to have exhausted the remedies available in the courts of the
State . . . if he has a right under the law of the State to raise, by any available procedure, the question
presented.”). Doubtless, the court noted, the question whether a state review procedure is “available”
requires consideration of state law but the question ultimately is a federal one that turns not on the state label
given to the procedure but on how the procedure operates in practice. After reviewing the Illinois
procedure, which all agree mirrors the Tennessee Supreme Court’s discretionary review procedure in all
material respects, O’Sullivan concluded that the procedure was an “available” one under the federal statute
and accordingly claims had to be exhausted there. In the aftermath of O’Sullivan, one would have thought
that the historical question whether a discretionary-review procedure like Illinois’s (or Tennessee’s) was
a “remed[y] available in the courts of the State” had finally been decided. As interpreted in Adams,
however, Rule 39 purports retroactively to change the “available” remedy inquiry – a view of the law that
not only allows Tennessee to overrule O’Sullivan but would allow Illinois to promulgate its own Rule 39
and reverse the outcome of O’Sullivan in that very case. Federal law is not that fragile. Availability in the
final analysis is a question of federal law that ultimately turns on a “question of objective historical fact,”
Wenger v. Frank, 266 F.3d 218, 226 (3d Cir. 2001), that no State has the authority to change retroactively.
Cf. Carey v. Saffold, 536 U.S. 214, 223 (2002) (“Ordinarily, for purposes of applying a federal statute that
interacts with state procedural rules, we look to how a state procedure functions, rather than the particular
name that it bears.”); N.A.A.C.P. v. Alabama, 357 U.S. 449, 456 (1958) (concluding that it was “unable to
reconcile the procedural holding of the Alabama Supreme Court . . . with its past unambiguous holdings”
on a given procedural issue). Because Abdur’Rahman relies on our panel decision in Adams to bring this
claim, I would use this case to overrule that decision.
       I do not believe that Abdur’Rahman’s Rule 60(b) claim survives AEDPA’s bar on second or
successive habeas petitions; however if it does, then it should be construed as a claim arising under Rule
60(b)(1), and dismissed as untimely.
        The majority’s holding today conflicts with not only our own precedent, see McQueen v. Scroggy,
99 F.3d 1302, 1335 (6th Cir. 1996) (“We agree with those circuits that have held that a Rule 60(b) motion
is the practical equivalent of a successive habeas corpus petition . . . .”), but also with that of our sister
circuits. See, e.g., United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496
(2003); Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir. 2002); Lopez v. Douglas, 141 F.3d 974, 975 (10th
Cir. 1998) (per curiam). Of particular relevance is the Eleventh Circuit’s recent decision in Gonzalez v.
Secretary for Dep’t of Corrections, 366 F.3d 1253, 1281 (11th Cir. 2004) (recognizing two narrow
exceptions - for clerical errors and fraud - to the rule that a Rule 60(b) motion is “second or successive” and
Nos. 02-6547/6548           In re Abdur’Rahman                                                                          Page 15


noting that “[a]n error of law, even one demonstrated by an intervening decision, does not fit either . . .
exception[]”). Only the Second Circuit is of the view that generally “a motion under Rule 60(b) to vacate
a judgment denying habeas is not a second or successive habeas petition and should . . . be3 treated as any
other motion under Rule 60(b).” Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). To the extent
the Second Circuit believes that Rule 60(b)(6) motions are different from habeas applications because they
“seek[] only to vacate the federal court judgment dismissing the habeas petition,” which is “merely a step
along the way” to habeas relief, id. at 198-99, the dichotomy is a false one. Before AEDPA and since, the
Supreme Court has made it clear that abuse of the writ may occur as readily in revisiting federal district
court habeas decisions as in revisiting underlying state court decisions. See, e.g., Felker v. Turpin, 518 U.S.
651, 664 (1996) (AEDPA’s “new restrictions on successive [federal] petitions constitute . . . a restraint on
what is called in habeas corpus practice ‘abuse of the writ’”) (quotation omitted); McCleskey v. Zant, 499
U.S. 467, 492-93 (1991) (recognizing that the “abuse of the writ” doctrine respects the finality of state court
convictions by respecting the finality of a first federal habeas proceeding); Woo Doo v. United States, 265
U.S. 239, 241 (1924) (holding that while “the inflexible doctrine of res judicata” did not then apply in
habeas proceedings, a petitioner “make[s] an abusive use of the writ of habeas corpus” when he attempts
to use a second federal proceeding to revisit grounds raised in a first proceeding).
         Contrary to petitioner’s suggestion and to the observations of some courts, this conclusion does not
mean that a claimant who brings a Rule 60(b) motion for fraud on the court will have it re-characterized as
a “second or successive habeas corpus application” under AEDPA. In the first place, it is not Rule 60(b)
that empowers litigants to seek such relief. That authority stems from “the inherent power” of a federal
court, which allows it “to vacate its own judgment upon proof that a fraud has been perpetrated upon the
court.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Rule 60(b) acknowledges the point when it says
that “[t]his rule does not limit the power of a court . . . to set aside a judgment for fraud on the court.” Fed.
R. Civ. P. 60(b). AEDPA nowhere purports to alter this “‘historic power of equity to set aside fraudulently
begotten judgments,’” Chambers, 501 U.S. at 44 (quoting Hazel-Atlas Glass4Co. v. Hartford-Empire Co.,
322 U.S. 235, 245 (1944)), even assuming Congress has the power to do so.
         In the second place, the conclusion that a fraud-on-the-court claim generally should not be treated
as a “successive” petition has much in common with the Supreme Court’s conclusion that a petitioner may
bring a second petition if the first one was dismissed as unripe (Slack) or if the first petition was dismissed
for failure to exhaust (Martinez-Villareal). Much of the historical debate over habeas corpus litigation has
turned on the question of whether res judicata should apply to state court criminal proceedings or federal
court habeas corpus decisions - and those res judicata principles contain exceptions that are relevant here.
Historically, res judicata did not apply to habeas petitions. See Fay v. Noia, 372 U.S. 391, 423 (1963)
(invoking “the familiar principle that res judicata is inapplicable in habeas proceedings”); see also Sanders
v. United States, 373 U.S. 1, 7-8 (1963). But in the 1966 amendments to 28 U.S.C. § 2244(b), Congress
adopted a “qualified application” of res judicata to habeas proceedings. See McCleskey, 499 U.S. at 467
(noting that the amendment “establishes a ‘qualified application of the doctrine of res judicata’” to habeas
proceedings by providing “that a federal court ‘need not entertain’ a second or subsequent habeas petition
‘unless’ the petitioner satisfies two conditions” - namely, a new ground for relief that was not deliberately
withheld in earlier litigation) (quoting S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) and 28 U.S.C.
§ 2244(b) (1966)). And in enacting AEDPA in 1996, Congress imposed additional “restriction[s] on
successive petitions,” which again “constitute a modified res judicata rule.” Felker v. Turpin, 518 U.S. 651,
664 (1996).

    3
      The Second Circuit recently reaffirmed this “functional” approach in Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004)
(noting that the court held in Rodriguez that “relief under Rule 60(b) is available with respect to a previous habeas proceeding
only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction”).
    4
      The majority states that “the dissent offers no reason for permitting Rule 60(b)(3) motions based on fraud while prohibiting
motions brought pursuant to the other provisions enumerated in Rule 60(b).” Not true. As explained above, the exception for
fraud does not derive from the Rule itself but from a court’s inherent power.
Nos. 02-6547/6548       In re Abdur’Rahman                                                              Page 16


        That Congress is trying to impose a “modified res judicata rule” on habeas corpus applications helps
explain why some repeat habeas corpus petitions are “successive” and why others are not. The doctrine of
res judicata has several well-established exceptions to the bar against subsequent actions, each of which
accounts for the Supreme Court’s prior decisions in this area as well as the appropriate treatment of a fraud-
on-the-court motion. Slack and Martinez-Villareal, for example, are consistent with the res judicata
principle that a dismissal without prejudice does not bar a second action on the same claim. See Restatement
of Judgments (Second) § 20(2) (“A valid and final personal judgment for the defendant, which rests on the
prematurity of the action [as did the dismissal on ripeness grounds in Martinez-Villareal], or on the
plaintiff’s failure to satisfy a precondition to suit [as did the dismissal on exhaustion grounds in Slack], does
not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been
satisfied, unless a second action is precluded by operation of the substantive law.”); see also Martinez-
Villareal, 523 U.S. at 645 (“It is certain that respondent’s Ford claim would not be barred under any form
of res judicata.”). Likewise, it has long been true that fraud on the court represents an exception to res
judicata. See United States v. Beggerly, 524 U.S. 38, 46 (1998) (holding that fraud on the court that is
“sufficiently gross” “demand[s] a departure from rigid adherence to the doctrine of res judicata”) (quotation
omitted); Chambers, 501 U.S. at 44 (noting that the “historic power of equity to set aside fraudulently
begotten judgments is necessary to the integrity of the courts”) (citations and quotations omitted). Absent
more concrete direction from Congress, there is no reason to think that Congress meant to abandon this
traditional understanding of res judicata at the same time that it was seeking to impose a “modified res
judicata” rule on successive habeas corpus applications.
        This background principle not only helps to explain these exceptions to the “successive” petition
bar (and potentially others, though only those consistent with AEDPA), but it also shapes the rule I would
follow today and explains why I would reaffirm the essence of our decision in McQueen, 99 F.3d at 1335.
AEDPA announces a “modified res judicata” bar because it does permit “successive” petitions, but only in
two discrete settings - new rules of constitutional law and claims of actual innocence - and, even then, only
after specific requirements have been met. See 28 U.S.C. § 2244(b)(2). Res judicata has never had a
general exception for revisiting decisions “on the merits,” and indeed the whole point of the doctrine is to
establish finality once such decisions have been reached. As a matter of statutory interpretation, moreover,
a statute that narrowly permits some successive petitions due to a change in the law cannot fairly be
construed to permit other petitions due to changes in the law. See Middlesex County Sewerage Auth. v.
National Sea Clammers Ass’n, 453 U.S. 1, 14-15 (1981) (“[I]t is an essential canon of statutory construction
that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading
others into it. In the absence of strong indicia of congressional intent, we are compelled to conclude that
Congress provided precisely the remedies it considered appropriate.”) (quotation and citation omitted).
Because AEDPA’s limitations on habeas relief trump otherwise applicable Federal Rules of Civil Procedure,
as I have noted, the AEDPA requirements must trump a contrary motion under Rule 60(b)(6). In the end,
the Rule simply may not give what AEDPA has taken away. See Pitchess v. Davis, 421 U.S. 482, 489
(1975) (holding that “even if Rule 60(b) could be read to apply to this situation [ - reopening a
judgment in a habeas case - ] it could not alter the statutory command”).
        For the foregoing reasons, I would affirm.
