                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0393p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                      X
                             Petitioner-Appellant, -
 EDWARD JEROME HARBISON,
                                                       -
                                                       -
                                                       -
                                                          Nos. 06-6474/6539; 07-5059
          v.
                                                       ,
                                                        >
 RICKY BELL, Warden,                                   -
                            Respondent-Appellee. -
                                                      N
                       Appeal from the United States District Court
                          for the Eastern District of Tennessee.
                  No. 97-00052—Curtis L. Collier, Chief District Judge.
                                    Submitted: January 24, 2007
                             Decided and Filed: September 27, 2007
                       Before: SILER, CLAY, and COOK, Circuit Judges.
       SILER, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (p. 5),
delivered a separate dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
        SILER, Circuit Judge. Petitioner Edward Jerome Harbison was convicted of first-degree
murder, second-degree burglary, and grand larceny, and was sentenced to death. After
unsuccessfully appealing through the Tennessee state courts, he petitioned in federal court for a writ
of habeas corpus under 28 U.S.C. § 2254. After the district court denied relief in 2001, we affirmed
the district court in Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005). We will not repeat the facts as
related in that opinion, except where they may be relevant to the current cases. While his habeas
corpus claim was proceeding in the federal courts, in 2001, Harbison filed a motion in state court
to reopen his post-conviction petition, which he subsequently moved to treat as a petition for a writ
of error coram nobis. In 2004, the trial court denied his motion as untimely, and the Tennessee
Court of Criminal Appeals affirmed that decision. Harbison v. State, No. E2004-00885-CCA-R28-
PD, 2005 WL 1521910 (Tenn. Crim. App. June 27, 2005) (unpublished). Harbison thereafter filed
these three matters in federal district court, and they came before us, either as appeals or on transfer
from the district court. He also asks for a stay of execution. For the reasons stated thereafter, we
affirm the district court’s rulings and deny all other relief requested.
                                             No. 06-6474
       This case is an original action involving the district court’s transfer of Harbison’s request
for permission to file a successive habeas corpus petition before this court for initial consideration
under 28 U.S.C. § 2244(b)(3). Harbison’s current pleading involves two claims previously raised

                                                   1
Nos. 06-6474/6539; 07-5059            Harbison v. Bell                                        Page 2


in his initial § 2254 petition. First, he argues that pursuant to Brady v. Maryland, 373 U.S. 83
(1963), newly-available evidence previously withheld by the Chattanooga Police Department raises
the possibility of other suspects in the homicide. Second, he argues that newly-discovered evidence
reveals that the attorney who handled his motion for a new trial and his direct appeal had an
impermissible conflict of interest.
        The district court concluded that, while part of Harbison’s argument was properly raised in
a Rule 60(b) motion, a portion of his argument could only be raised in a successive § 2254 petition.
If Harbison is attempting to raise new claims or present claims previously adjudicated, those claims
can only be raised in a successive § 2254 petition, Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005),
and the district court properly transferred the case to this court so that Harbison could request
permission to file a successive § 2254 petition. To the extent that Harbison is attempting to raise
new issues or re-raise issues presented in his prior § 2254 petition, his current motion should be
construed as an attempt to file a successive petition under § 2244(b)(3). Thus, he requires this
court’s authorization to file such a petition with the district court.
        To obtain this permission, Harbison must make a prima facie showing either that: (1) a new
rule of constitutional law applies to his case that the Supreme Court made retroactive to cases on
collateral review; or (2) a newly-discovered factual predicate exists which, if proven, sufficiently
establishes that no reasonable factfinder would have found Harbison guilty of the underlying offense
but for constitutional error. 28 U.S.C. §§ 2244(b)(2) & 2244(b)(3)(C).
         The requirements under the Antiterrorism and Effective Death Penalty Act (AEDPA) apply
here. Harbison has not met the standard under either provision of § 2244(b)(2) that would allow him
to file a successive petition. First, he does not rely on a new rule of constitutional law to justify
filing a § 2254 petition. Second, while he does rely on newly-discovered evidence, the evidence is
not sufficient to establish that no reasonable factfinder would have found him guilty of first-degree
murder. We previously reviewed this evidence and concluded that it “is not sufficient to create a
reasonable probability that the result of the trial would have been different [,]” Harbison, 408 F.3d
at 834, and “was unlikely to change the result of Harbison’s trial.” Id. at 836. Therefore, Harbison’s
request for authorization to file a successive § 2254 petition will be denied.
                                            No. 06-6539
         In this case, Harbison appeals from the district court’s denial of his Rule 60(b) motion.
Initially, Harbison is required to obtain a Certificate of Appealability (COA) in order to receive a
full review of his claims in this appeal. See United States v. Hardin, 481 F.3d 924, 925-26 (6th Cir.
2007).
        Harbison has not demonstrated that he is entitled to a COA. Under 28 U.S.C. § 2253(c)(2),
the court should grant a COA for an issue raised in a § 2254 petition only if the petitioner has made
a substantial showing of the denial of a federal constitutional right. A petitioner satisfies this
standard by demonstrating that reasonable jurists could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues raised are adequate to
deserve further review. Banks v. Dretke, 540 U.S. 668, 705 (2004).
        Harbison has not shown that reasonable jurists would disagree with the district court’s
dismissal of his Rule 60(b) motion or that the issue is adequate to deserve further review. He argued
in his Rule 60(b) motion that the two claims from his § 2254 petition should not have been
dismissed as procedurally defaulted. Because Harbison had not raised these claims in state court
before presenting them in his initial § 2254 petition, we concluded that the claims were procedurally
defaulted because he had no remaining state court remedies through which he could raise the claims.
Harbison, 408 F.3d at 830-33 & 836.
Nos. 06-6474/6539; 07-5059             Harbison v. Bell                                          Page 3


         The district court determined that Harbison’s motion was brought under Fed. R. Civ. P.
60(b)(6), which is the residual clause. A movant’s claims can be brought under Rule 60(b)(6) only
if they cannot be brought under another clause of Rule 60(b). Abdur’Rahman v. Bell, 493 F.3d. 738,
741 (6th Cir. 2007). However, Harbison’s argument is more properly brought under Rule 60(b)(1),
which provides for relief on the basis of mistake, inadvertence, or excusable neglect. In his Rule
60(b) motion, Harbison maintained that the district court and this court committed legal error or
mistake because state court remedies remained for his claims and, therefore, they were not
procedurally defaulted. Since Harbison is alleging legal error, he had to bring his motion within the
normal time for taking an appeal from the district court’s judgment. Townsend v. Soc. Sec. Admin.,
486 F.3d 127, 133 (6th Cir. 2007). Even if Harbison’s motion is construed as brought under the
more general provisions of Rule 60(b)(1), he was still required to file his motion within one year
after the judgment was entered. See Abdur’Rahman, 493 F.3d at 741. The district court dismissed
Harbison’s initial § 2254 petition in March 2001, and Harbison did not file his Rule 60(b) motion
until April 2006. Therefore, his motion, if filed under Rule 60(b)(1), was untimely.
         Even if Harbison’s motion is construed as filed under Rule 60(b)(6), he still has not
demonstrated that the issue is adequate to merit further review. Motions under Rule 60(b)(6) do not
have a time limit, but a movant is required to demonstrate extraordinary circumstances which would
justify reopening a final judgment. Gonzalez, 545 U.S. at 535. Relief under Rule 60(b)(6) should
be granted only in unusual and extreme situations where principles of equity mandate relief.
GenCorp., Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007).
         While Harbison’s argument concerning the procedural default of his claims is somewhat
correct, it is not sufficient to meet the high standard required for 60(b)(6) relief. Although this court
and the district court may have incorrectly determined that Harbison had procedurally defaulted his
two claims on the basis that he had no state court remedies remaining, he still procedurally defaulted
in state court. The Tennessee Court of Criminal Appeals found that Harbison could not raise in a
coram nobis petition his claim that one of his attorneys suffered from a conflict of interest, but
implied that he could raise a Brady claim in a coram nobis petition. Nevertheless, it found that his
petition for the Brady claim was untimely and the merits of the claim were not sufficient to outweigh
the untimeliness of his petition. See Harbison, 2005 WL 1521910, at *5-6.
        Therefore, Harbison still procedurally defaulted his Brady claim in state court, but on the
basis of his failure to timely pursue his relief rather than on the unavailability of state court
remedies. Harbison must establish cause and prejudice to excuse this procedural default in order
to obtain review of his Brady claim. Bousley v. United States, 523 U.S. 614, 622 (1998). We
previously rejected his claims for cause and prejudice. See Harbison, 408 F.3d at 833-36. We also
previously concluded that Harbison procedurally defaulted his claim on the conflict of interest by
his attorney and had not demonstrated cause and prejudice to excuse the procedural default. Id. at
836.
       Therefore, Harbison has not demonstrated that an adequate issue exists concerning whether
extraordinary circumstances are present to justify Rule 60(b) relief, so we will deny his motion for
a COA.
                                             No. 07-5059
        In this case, Harbison appeals from the district court’s denial of his motion to alter or amend
the judgment and the denial of his request to authorize the Federal Public Defender Services to
represent him in state clemency proceedings. However, in his COA application, he only challenges
the district court’s decision denying his request to appoint counsel to represent him in the clemency
proceedings under 18 U.S.C. § 3599(e).
Nos. 06-6474/6539; 07-5059            Harbison v. Bell                                           Page 4


        It is not clear that Harbison requires a COA to appeal the district court’s denial of this
counsel motion. Although we have never held that a COA is required to appeal from a final order
denying counsel in a clemency proceeding, we would follow the implied rule from Smith v. Dretke,
422 F.3d 269, 288 (5th Cir. 2005), which found that no COA was required to appeal from the denial
of expert assistance under 21 U.S.C. § 848(q). However, even if a COA is required for this issue,
because we have previously ruled in House v. Bell, 332 F.3d 997, 998-99 (6th Cir. 2003) (en banc)
(order), that § 3599(e) (as previously codified at 21 U.S.C. § 848(q)(4)(B)) does not authorize
federal compensation for legal representation in state matters, a COA should not be granted for this
issue.
                                             Conclusion
       Therefore, we hereby:
       1.      Deny the request for authorization to file the successive § 2254 petition. (No.
               06-6474).
       2.      Deny the motion for a COA on the Rule 60(b) motion. (No. 06-6539).
       3.      Deny the motion for a COA for the Federal Public Defender Services to
               represent Harbison in state clemency proceedings. (No. 07-5059).
       4.      Deny the accompanying motions to stay execution.
       5.      Affirm the district court in its rulings in these cases.
Nos. 06-6474/6539; 07-5059              Harbison v. Bell                                           Page 5


                                        ___________________
                                             DISSENT
                                        ___________________
         CLAY, Circuit Judge, dissenting. I dissented with respect to the prior panel opinion in this
matter, Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005), because the district court improperly failed
to grant Harbison’s petition for a writ of habeas corpus on the ground that the prosecution violated
Brady v. Maryland, 373 U.S. 83 (1963); and Harbison had demonstrated cause and actual prejudice
for his failure to raise his Brady claim in state court prior to seeking habeas relief in federal court.
Despite several court orders compelling disclosure of exculpatory materials from the Chattanooga
Police Department records which indicate that another individual, Ray Harrison, had the motive and
opportunity to murder Edith Russell and burglarize her home, the majority in the prior panel
decision dismissed the materiality of the exculpatory evidence by engaging in the crassest form of
speculation in an attempt to minimize the importance of the evidence. Nor did the panel majority
adequately explain or justify the withholding of the jail house statements of potential witness, David
Schreane, regarding Detective Foster’s notes concerning Schreane’s motive to falsely implicate
Harbison in the murder. Because of the panel majority’s denial of the habeas petition in 2005,
Harbison was never accorded sufficient opportunity to demonstrate that Ray Harrison’s wife placed
Harrison at the scene of the crime, thereby buttressing Harbison’s alibi defense to the murder charge.
As a result, Harbison was effectively prevented from demonstrating his innocence inasmuch as he
might have used the suppressed evidence to aid his acquittal by shifting the blame for the murder
to Harrison. In other words, the prosecution’s Brady violation denied Harbison the right to present
his best possible defense to the jury. Furthermore, as explained by my prior dissent in this matter,
at 408 F.3d at 841, Harbison did not procedurally default his Brady claim or, if he did, such
procedural default should have been excused by the showing of cause for the default, and prejudice
resulting from the default, as explained in excruciating detail by the aforesaid dissent. The dissent
goes to great lengths to explain why there was cause for the procedural default, notwithstanding the
purported lack of evidence of deliberate prosecutorial concealment. Consequently, the panel
majority’s failure to provide habeas relief based on the Brady claim means that it is entirely possible
that Edward Harbison, who was scheduled for execution on September 26, 2007, may be actually
innocent of the offense for which he is to be executed.
        In order for the majority in the instant appeal, in Case Nos. 06-6474 and 06-6539, to
conclude, as it does, that Harbison cannot obtain any relief because he cannot demonstrate that “a
newly-discovered factual predicate exists which, if proven, sufficiently establishes that no
reasonable fact finder would have found Harbison guilty of the underlying offense but for
constitutional error,” the majority has to implicitly rely upon its prior unsupportable and
unpersuasive holdings in the prior panel opinion, reported at 408 F.3d 823, to the effect that there
was no Brady violation in connection with the state court trial; that there was no improper
withholding of evidence that should have been divulged to petitioner; and that petitioner had no
justification for failing to come forward with exonerating evidence that he did not know about
because it had been concealed or withheld from him. The circular rationale and the illogic of the
majority’s application of death penalty jurisprudence in this case operate to defeat the principle of
the Brady case that convictions are not to be obtained based upon evidence which is concealed, or
not disclosed. In the instant appeal, the majority justifies its inability or unwillingness to grant relief
based upon its prior improper determination that Harbison is not entitled to the protection of the
Brady case and therefore concludes that Harbison should not be afforded the opportunity to file a
successive habeas petition or be granted a certificate of appealability with respect to Harbison’s Rule
60(b) motion. I therefore respectfully dissent.
