United States District Court, S.D. Alabama, Southern Division
ERNEST B. DIGGS, JR., Petitioner,
BILLY MITCHEM, Respondent.
WILLIAM H. STEELE, Chief District Judge.
In October 2004, Judge Hand entered an order adopting the Magistrate Judge's report and recommendation ("R&R") that, because the petitioner's claims were procedurally defaulted, his habeas petition should be denied, the action dismissed, and judgment entered in favor of the respondent. (Doc. 14). On the same day, Judge Hand entered judgment in favor of the respondent. (Doc. 15). Now, almost ten years later, the petitioner moves under Rule 60(b) for relief from that order and judgment. (Doc. 25). After careful consideration, the Court concludes that his motion is due to be denied.
The petitioner invokes subsections (4), (5) and (6) of Rule 60(b). In particular, he argues that the order and judgment are void under Rule 60(b)(4) because the Magistrate Judge violated his right to procedural due process; that the order and judgment are based on an earlier judgment that has been reversed or vacated within the contemplation of Rule 60(b)(5); and that relief is available under the catch-all provision of Rule 60(b)(6) both because there has been an intervening change in the law and because denying his petition without reaching the merits of his claims works an unconstitutional suspension of the writ.
A petitioner may not use Rule 60(b) to circumvent the requirement of 28 U.S.C. § 2244(b)(3)(A) that he obtain appellate permission to pursue a second or successive petition. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). But this rule bars only the use of Rule 60(b) to advance a habeas "claim, " that is, "a new ground for relief" or an argument "that the court erred in denying habeas relief on the merits." Id. at 532. A petitioner does not make a habeas claim in a Rule 60(b) motion "when he merely asserts that a previous ruling which precluded a merits determination was in error - for example, a denial for such reasons as... procedural default." Id. at 532 n.4. The petitioner's motion challenges the determination that his claims are barred by procedural default. It therefore raises no habeas claim and thus is not subject to the requirements of Section 2244(b)(3)(A).
A. Rule 60(b)(4).
Motions under Rule 60(b) "must be made within a reasonable time." Fed.R.Civ.P. 60(c)(1). "[V]irtually any time is reasonable' for challenges to void judgments under Rule 60(b)(4)." Harris v. Corrections Corp. of America, 332 Fed.Appx. 593, 595 (11th Cir 2009) (citing Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994)). The Court therefore assumes, without deciding, that the petitioner's motion under Rule 60(b)(4) is timely.
"Generally, a judgment is void under Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (internal quotes omitted). The petitioner does not claim a lack of jurisdiction, but he does assert a violation of due process.
The R&R concluded that the petitioner's claims were procedurally defaulted by failure to properly pursue them in state court, with the defaults not excused by either cause and prejudice or a fundamental miscarriage of justice. (Doc. 12). The petitioner's one-sentence due process argument is that "[t]he Magistrate Judge erred in violation of procedural due process in not applying § 2254(d)(1) and (2)" to his petition. (Doc. 25 at 2). Those provisions govern a federal court's analysis of "any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). The petitioner's objections to the R&R reflect his assertion that, while the state courts mentioned procedural problems, they thereafter reached the merits of each of his claims, precluding dismissal based on procedural default and triggering review of the merits under Section 2254(d). (Doc. 13 at 1-2).
Assuming without deciding that the Magistrate Judge erred by not applying Section 2254(d), his error could not possibly support relief under Rule 60(b)(4). "A judgment is not void because it is erroneous." William Skillings & Associates v. Cunard Transportation, Ltd., 594 F.2d 1078, 1081 (5th Cir. 1979); accord Dixon v. Kilgore, 343 Fed.Appx. 530, 532 (11th Cir. 2009) ("[A] judgment is not void because of an error of law.") (citing Gulf Coast Building & Supply Co. v. International Brotherhood of Electrical Workers, 460 F.2d 105, 108 (5th Cir. 1972)). Indeed, this is true of Rule 60(b) in general: "Rule 60(b) may not be used to challenge mistakes of law which could have been raised on direct appeal." American Bankers Insurance Co. v. Northwestern National Insurance Co., 198 F.3d 1332, 1338 (11th Cir. 1999). The error of which the petitioner complains is one of law and, if such error exists, it could have been raised on direct appeal. Indeed, the petitioner asserted precisely this issue on direct appeal from Judge Hand's order and judgment. (Doc. 19 at 3).
Due process, in general and in the context of Rule 60(b)(4), "generally requires notice and an opportunity to be heard." United States v. Gentile, 322 Fed.Appx. 699, 701 (11th Cir. 2009). An order does not violate due process, and will not support relief under Rule 60(b)(4), when the Rule 60 movant had notice of the underlying proposed adverse action and had an opportunity to respond to it. Oakes v. Horizon Financial, S.A., 259 F.3d 1315, 1319 (11th Cir. 2001). The petitioner received the R&R and so received notice that the Magistrate Judge proposed denial of his petition based on procedural default. The petitioner was given two weeks to file objections to the R&R, and he did so. He thus had an opportunity to respond to the proposed R&R and to object that the Magistrate Judge was required to address the merits of his claims. As noted, the petitioner raised precisely that objection. (Doc. 13 at 1-2). The requirements of due process were fully satisfied, and the order and judgment thus are not void for purposes of Rule 60(b)(4).
B. Rule 60(b)(5).
In determining whether a motion under this rule has been brought within a reasonable time, "we must consider the circumstances of each case to determine whether the parties have been prejudiced by the delay and whether a good reason has been presented for failing to take action sooner." BUC International Corp. v. International Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008) (internal quotes omitted). The petitioner invokes Rule 60(b)(5) based on changes in the legal landscape wrought by the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). Martinez was handed down in March 2012, two years and three months before the petitioner filed his motion. The petitioner offers no reason for his extended delay in responding to the Martinez decision, and that unexplained delay weighs heavily against any conclusion that he filed his Rule 60(b)(5) motion within a reasonable time. Cf. Rease v. AT&T Corp., 358 Fed.Appx. 73, 76 (11th Cir. 2009) (unexplained six-year delay in filing Rule 60(b)(5) motion rendered it untimely, without any consideration of prejudice vel non); Ramsey ...