ABDUR’RAHMAN v. BELL, WARDEN

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
88 OCTOBER TERM, 2002
Syllabus
ABDUR’RAHMAN v. BELL, WARDEN
certiorari to the united states court of appeals for
the sixth circuit
No. 01–9094. Argued November 6, 2002—Decided December 10, 2002
Certiorari dismissed.
James S. Liebman argued the cause for petitioner. With
him on the briefs were Thomas C. Goldstein, by appointment
of the Court, 537 U. S. 809, Amy Howe, William P. Redick,
Jr., and Bradley MacLean.
Paul G. Summers, Attorney General of Tennessee, argued
the cause for respondent. With him on the brief were
Michael E. Moore, Solicitor General, Joseph F. Whalen, As-
sistant Attorney General, and Gordon W. Smith, Associate
Solicitor General.
Paul J. Zidlicky argued the cause for the State of Ala-
bama et al. as amici curiae urging affirmance. With him
on the brief were Bill Pryor, Attorney General of Alabama,
and Nathan A. Forrester, Solicitor General, John M. Bailey,
Chief State’s Attorney of Connecticut, Carter G. Phillips,
Gene C. Schaerr, and the Attorneys General for their respec-
tive States as follows: Janet Napolitano of Arizona, Mark
Lunsford Pryor of Arkansas, Bill Lockyer of California, Ken
Salazar of Colorado, M. Jane Brady of Delaware, Robert A.
Butterworth of Florida, Thurbert E. Baker of Georgia, Alan
G. Lance of Idaho, James E. Ryan of Illinois, Steve Carter of
Indiana, Carla J. Stovall of Kansas, Richard P. Ieyoub of
Louisiana, Thomas F. Reilly of Massachusetts, Mike Mc-
Grath of Montana, Don Stenberg of Nebraska, Frankie Sue
Del Papa of Nevada, David Samson of New Jersey, Wayne
Stenehjem of North Dakota, Betty D. Montgomery of Ohio,
W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of
Pennsylvania, Charles M. Condon of South Carolina, Mark
Barnett of South Dakota, John Cornyn of Texas, Mark L.

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
89 Cite as: 537 U. S. 88 (2002)
Stevens, J., dissenting
Shurtleff of Utah, Jerry W. Kilgore of Virginia, Christine
O. Gregoire of Washington, and Darrell V. McGraw, Jr., of
West Virginia.*
Per Curiam.
The writ of certiorari is dismissed as improvidently
granted.
Justice Stevens, dissenting.
The Court’s decision to dismiss the writ of certiorari as
improvidently granted presumably is motivated, at least in
part, by the view that the jurisdictional issues presented by
this case do not admit of an easy resolution.1 I do not share
that view. Moreover, I believe we have an obligation to pro-
vide needed clarification concerning an important issue that
has generated confusion among the federal courts, namely,
the availability of Federal Rule of Civil Procedure 60(b) mo-
tions to challenge the integrity of final orders entered in ha-
beas corpus proceedings. I therefore respectfully dissent
from the Court’s disposition of the case.
I
In 1988 the Tennessee Supreme Court affirmed petition-
er’s conviction and his death sentence. His attempts to ob-
*Briefs of amici curiae urging reversal were filed for James F. Neal
et al. by Elizabeth G. Taylor and Ronald H. Weich; and for the National
Association of Criminal Defense Lawyers by Deanne E. Maynard, Donald
B. Verrilli, Jr., Lisa B. Kemler, and Edward M. Chikofsky.
A brief of amicus curiae urging affirmance was filed for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.
1 On October 24, 2002, just two weeks before oral argument, the Court
entered an order directing the parties to file supplemental briefs address-
ing these two questions: “Did the Sixth Circuit have jurisdiction to review
the District Court’s order, dated November 27, 2001, transferring petition-
er’s Rule 60(b) motion to the Sixth Circuit pursuant to 28 U. S. C. § 1631?
Does this Court have jurisdiction to review the Sixth Circuit’s order, dated
February 11, 2002, denying leave to file a second habeas corpus petition?”
Post, p. 996.

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
90 ABDUR’RAHMAN v. BELL
Stevens, J., dissenting
tain postconviction relief in the state court system were un-
successful. In 1996 he filed an application for a writ of
habeas corpus in the Federal District Court advancing sev-
eral constitutional claims, two of which raised difficult ques-
tions. The first challenged the competency of his trial coun-
sel and the second made serious allegations of prosecutorial
misconduct. After hearing extensive evidence on both
claims, on April 8, 1998, the District Court entered an order
granting relief on the first claim, but holding that the second
was procedurally barred because it had not been fully ex-
hausted in the state courts. Abdur’Rahman v. Bell, 999
F. Supp. 1073 (MD Tenn. 1998). The procedural bar resulted
from petitioner’s failure to ask the Supreme Court of Tennes-
see to review the lower state courts’ refusal to grant relief
on the prosecutorial misconduct claim. Id., at 1080–1083.
The District Court’s ruling that the claim had not been
fully exhausted appeared to be correct under Sixth Circuit
precedent 2 and it was consistent with this Court’s later hold-
ing in O’Sullivan v. Boerckel, 526 U. S. 838 (1999). In re-
sponse to our decision in O’Sullivan, however, the Tennessee
Supreme Court on June 28, 2001, adopted a new rule that
changed the legal landscape. See In re: Order Establishing
Rule 39, Rules of the Supreme Court of Tennessee: Exhaus-
tion of Remedies. App. 278. That new rule made it per-
fectly clear that the District Court’s procedural bar holding
was, in fact, erroneous.3
2 See Silverburg v. Evitts, 993 F. 2d 124 (CA6 1993). Other Circuits
had held that the exhaustion requirement may be satisfied without seeking
discretionary review in a State’s highest court. See, e. g., Dolny v. Erick-
son, 32 F. 3d 381 (CA8 1994); Boerckel v. O’Sullivan, 135 F. 3d 1194 (CA7
1998).
3 Tennessee Supreme Court Rule 39 reads, in relevant part: “In all ap-
peals from criminal convictions or post-conviction relief matters from and
after July 1, 1967, a litigant shall not be required to petition for rehear-
ing or to file an application for permission to appeal to the Supreme Court
of Tennessee following an adverse decision of the Court of Criminal Ap-
peals in order to be deemed to have exhausted all available state remedies

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
91 Cite as: 537 U. S. 88 (2002)
Stevens, J., dissenting
The warden appealed from the District Court’s order
granting the writ, but petitioner did not appeal the ruling
that his prosecutorial misconduct claim was procedurally
barred. The Court of Appeals set aside the District Court’s
grant of relief to petitioner, 226 F. 3d 696 (CA6 2000), and
we denied his petition for certiorari on October 9, 2001, 534
U. S. 970. The proceedings that were thereafter initiated
raised the questions the Court now refuses to decide.
On November 2, 2001, petitioner filed a motion, pursuant
to Rule 60(b) of the Federal Rules of Civil Procedure,4 seek-
ing relief from the District Court judgment entered on April
8, 1998. The motion did not assert any new constitutional
claims and did not rely on any newly discovered evidence.
It merely asked the District Court to set aside its 1998 order
terminating the habeas corpus proceeding and to decide the
merits of the prosecutorial misconduct claim that had been
held to be procedurally barred. The motion relied on the
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.” This type of action by the
Tennessee Court was anticipated—indeed, invited—by the concurring
opinion in O’Sullivan v. Boerckel, 526 U. S. 838, 849–850 (1999) (opinion of
Souter, J.).
4 Federal Rule of Civil Procedure 60(b) provides, in part: “On motion
and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable ne-
glect; (2) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresenta-
tion, or other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment . . . upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have pro-
spective application; or (6) any other reason justifying relief from the oper-
ation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken.”

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
92 ABDUR’RAHMAN v. BELL
Stevens, J., dissenting
ground that the Tennessee Supreme Court’s new Rule 39
demonstrated that the District Court’s procedural bar ruling
had been based on a mistaken premise.
Relying on Sixth Circuit precedent,5 on November 27,
2001, the District Court entered an order that: (1) char-
acterized the motion as a “second or successive habeas cor-
pus application” governed by 28 U. S. C. § 2244; (2) held that
the District Court was therefore without jurisdiction to
decide the motion; 6 and (3) transferred the case to the Court
of Appeals pursuant to § 1631.7
Petitioner sought review of that order in both the District
Court and the Court of Appeals. In the District Court, peti-
tioner filed a notice of appeal and requested a certificate of
appealability. See Civil Docket for Case No. 96–CV–380
(MD Tenn., Apr. 23, 1996), App. 11. In the Court of Appeals,
petitioner filed the notice of appeal, again sought a certificate
of appealability, and moved the court to consolidate the ap-
peal of the District Court’s Rule 60(b) ruling with his pre-
5 McQueen v. Scroggy, 99 F. 3d 1302, 1335 (CA6 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 . . .”).
6 Title 28 U. S. C. § 2244(b)(ii)(3)(A) provides: “Before a second or succes-
sive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
7 Section 1631 provides: “Whenever a civil action is filed in a court as
defined in section 610 of this title or an appeal, including a petition for
review of administrative action, is noticed for or filed with such a court
and that court finds that there is a want of jurisdiction, the court shall, if
it is in the interest of justice, transfer such action or appeal to any other
such court in which the action or appeal could have been brought at the
time it was filed or noticed, and the action or appeal shall proceed as if it
had been filed in or noticed for the court to which it is transferred on the
date upon which it was actually filed in or noticed for the court from which
it is transferred.” Under Sixth Circuit precedent, a district court pre-
sented with a “second or successive” habeas application must transfer it
to the Court of Appeals pursuant to that section. See In re Sims, 111
F. 3d 45 (CA6 1997).

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
93 Cite as: 537 U. S. 88 (2002)
Stevens, J., dissenting
existing appeal of his original federal habeas petition. Id.,
at 28. On January 18, 2002, the Court of Appeals entered
an order that endorsed the District Court’s disposition of the
Rule 60(b) motion, specifically including its characterization
of the motion as a successive habeas petition. Nos. 98–6568/
6569, 01–6504 (CA6), p. 2, App. 35, 36. In that order the
Court of Appeals stated that the “district court properly
found that a Rule 60(b) motion is the equivalent of a succes-
sive habeas corpus petition,” and then held that Abdur’Rah-
man’s petition did not satisfy the gateway criteria set forth
in § 2244(b)(2) for the filing of such a petition. Ibid. It con-
cluded that “all relief requested to this panel is denied.” Id.,
at 37. In a second order, entered on February 11, 2002, Nos.
98–6568/6569, 01–6504 (CA6), id., at 38, the Court of Appeals
referred to additional filings by petitioner and denied them
all.8
Thereafter we stayed petitioner’s execution and granted
his petition for certiorari to review the Court of Appeals’
disposition of his Rule 60(b) motion.9 535 U. S. 1016 (2002).
II
The answer to the jurisdictional questions that we asked
the parties to address depends on whether the motion that
petitioner filed on November 2, 2001, was properly styled as
8 One paragraph in that order reads as follows: “The order construing
an ostensible Rule 60(b) motion as an application for leave to file a second
habeas corpus petition . . . is not an appealable order in No. 01–6504, which
is therefore DISMISSED for lack of jurisdiction.” App. 39.
9 The two questions presented in the certiorari petition read as follows:
“1. Whether the Sixth Circuit erred in holding, in square conflict with
decisions of this Court and of other circuits, that every Rule 60(b) Motion
constitutes a prohibited ‘second or successive’ habeas petition as a mat-
ter of law.
“2. Whether a court of appeals abuses its discretion in refusing to per-
mit consideration of a vital intervening legal development when the failure
to do so precludes a habeas petitioner from ever receiving any adjudication
of his claims on the merits.” Pet. for Cert.

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
94 ABDUR’RAHMAN v. BELL
Stevens, J., dissenting
a Rule 60(b) motion, or was actually an application to file
a second or successive habeas corpus petition, as the Court
of Appeals held. If it was the latter, petitioner clearly
failed to follow the procedure specified in 28 U. S. C.
§ 2244(b)(3)(A).10 On the other hand, it is clear that if the
motion was a valid Rule 60(b) filing, the Court of Appeals
had jurisdiction to review the District Court’s denial of re-
lief—either because that denial was a final order from which
petitioner filed a timely appeal, or because the District Court
had transferred the matter to the Court of Appeals pursuant
to § 1631.11 In either event the issue was properly before
the Court of Appeals, and—since the jurisdictional bar in
§ 2244(b)(3)(E) does not apply to Rule 60(b) motions—we cer-
tainly have jurisdiction to review the orders that the Court
of Appeals entered on January 18 and February 11, 2002.
Thus, in order to resolve both the jurisdictional issues and
the questions presented in the certiorari petition, it is neces-
sary to identify the difference, if any, between a Rule 60(b)
motion and a second or successive habeas corpus application.
As Judge Tjoflat explained in a recent opinion addressing
that precise issue, the difference is defined by the relief that
the applicant seeks. Is he seeking relief from a federal
court’s final order entered in a habeas proceeding on one or
more of the grounds set forth in Rule 60(b), or is he seeking
relief from a state court’s judgment of conviction on the basis
of a new constitutional claim? Referring to the difference
10 Section 2244(b)(3)(A) provides: “Before a second or successive applica-
tion permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.” Petitioner filed no such
motion.
11 It is of particular importance that petitioner filed his notice of appeal
in both the Court of Appeals and the District Court. Regardless of
whether the District Court’s transfer order divested that court of jurisdic-
tion to conduct further proceedings, petitioner challenged the specific
characterization of his Rule 60(b) motion before the two possible courts
that could hear his claim.

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
95 Cite as: 537 U. S. 88 (2002)
Stevens, J., dissenting
between a Rule 60(b) motion and a “second or successive”
habeas corpus petition, Judge Tjoflat wrote:
“The distinction lies in the harm each is designed to
cure. A ‘second or successive’ habeas corpus petition,
as discussed above, is meant to address two specific
types of constitutional claims by prisoners: (1) claims
that ‘rel[y] on a new rule of constitutional law,’ and
(2) claims that rely on a rule of constitutional law and
are based on evidence that ‘could not have been discov-
ered previously through the exercise of due diligence’
and would establish the petitioner’s factual innocence.
28 U. S. C. § 2244(b)(3)(A). Neither of these types of
claims challenges the district court’s previous denial of
relief under 28 U. S. C. § 2254. Instead, each alleges
that the contextual circumstances of the proceeding
have changed so much that the petitioner’s conviction or
sentence now runs afoul of the Constitution.
“In contrast, a motion for relief under Rule 60 of the
Federal Rules of Civil Procedure contests the integrity
of the proceeding that resulted in the district court’s
judgment.
. . . . .
“When a habeas corpus petitioner moves for relief
under, for example, Rule 60(b)(3), he is impugning the
integrity of the district court’s judgment rejecting his
petition on the ground that the State obtained the judg-
ment by fraud. Asserting this claim is quite different
from contending, as the petitioner would in a successive
habeas corpus petition, that his conviction or sentence
was obtained ‘in violation of the Constitution or laws or
treaties of the United States.’ 28 U. S. C. § 2254(a).
“In sum, a ‘second or successive’ habeas corpus peti-
tion, like all habeas corpus petitions, is meant to remedy
constitutional violations (albeit ones which arise out of
facts discovered or laws evolved after an initial habeas
corpus proceeding), while a Rule 60(b) motion is de-

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
96 ABDUR’RAHMAN v. BELL
Stevens, J., dissenting
signed to cure procedural violations in an earlier pro-
ceeding—here, a habeas corpus proceeding—that raise
questions about that proceeding’s integrity.
. . . . .
“As a final note, I would add that this rule is not just
consistent with case law, but it also comports with the
fair and equitable administration of justice. If, for ex-
ample, a death row inmate could show that the State
indeed committed fraud upon the district court during
his habeas corpus proceeding, it would be a miscarriage
of justice if we turned a blind eye to such abuse of the
judicial process. Nevertheless, this is the result that
would occur if habeas corpus petitioners’ Rule 60(b) mo-
tions were always considered ‘second or successive’ ha-
beas corpus petitions. After all, a claim of prosecuto-
rial fraud does not rely on ‘a new rule of constitutional
law’ and may not ‘establish by clear and convincing evi-
dence that . . . no reasonable factfinder would have found
the applicant guilty of the underlying offense.’ 28
U. S. C. § 2244(b)(2). It is a claim that nonetheless must
be recognized.” Mobley v. Head, 306 F. 3d 1096, 1100–
1105 (CA11 2002) (dissenting opinion).
Judge Tjoflat’s reasoning is fully consistent with this
Court’s decisions in Stewart v. Martinez-Villareal, 523 U. S.
637 (1998), and Slack v. McDaniel, 529 U. S. 473 (2000).
Applying that reasoning to the present case, it is perfectly
clear that the petitioner filed a proper Rule 60(b) motion.
(Whether it should have been granted is a different ques-
tion.) The motion did not purport to set forth the basis for
a second or successive challenge to the state-court judgment
of conviction. It did, however, seek relief from the final
order entered by the federal court in the habeas proceeding,
and it relied on grounds that are either directly or indirectly
identified in Rule 60(b) as possible bases for such relief. Es-
sentially it submitted that the “changes in the . . . legal land-

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
97 Cite as: 537 U. S. 88 (2002)
Stevens, J., dissenting
scape,” Agostini v. Felton, 521 U. S. 203, 215 (1997), effected
by Tennessee’s new rule demonstrated that the District
Court’s procedural bar ruling rested on a mistaken premise.
In petitioner’s view, that mistake constituted a “reason justi-
fying relief from the operation of the judgment” within the
meaning of Rule 60(b)(6). Whether one ultimately agrees
or disagrees with that submission, it had sufficient arguable
merit to persuade at least four Members of this Court to
grant his certiorari petition.
III
In the District Court petitioner filed a comprehensive
memorandum supporting his submission that his Rule 60(b)
motion should be granted. App. 171–267. He has argued
that the evidence already presented to the court proves that
the prosecutor was guilty of serious misconduct; that affida-
vits executed by eight members of the jury that sentenced
him to death establish that they would have not voted in
favor of the death penalty if they had known the facts that
the prosecutor improperly withheld or concealed from them;
and that it is inequitable to allow an erroneous procedural
ruling to deprive him of a ruling on the merits. In this
Court, a brief filed by former prosecutors as amici curiae
urges us to address the misconduct claim, stressing the im-
portance of condemning the conduct disclosed by the rec-
ord. 12 Arguably it would be appropriate for us to do so in
order to answer the second question presented in the certio-
rari petition. In my opinion, however, correct procedure re-
quires that the merits of the Rule 60(b) motion be addressed
in the first instance by the District Court.
The District Court has already heard the extensive evi-
dence relevant to the prosecutorial misconduct claim, as well
as the evidence that persuaded both the Tennessee appellate
court and two federal courts that petitioner’s trial counsel
12 See Brief for James F. Neal et al. as Amici Curiae 24.

537US1 Unit: $U10 [04-14-04 19:29:47] PAGES PGT: OPIN
98 ABDUR’RAHMAN v. BELL
Stevens, J., dissenting
was ineffective (relief was denied on this claim based on a
conclusion that counsel’s ineffectiveness did not affect the
outcome of the trial). That court is, therefore, in the best
position to evaluate the equitable considerations that may be
taken into account in ruling on a Rule 60(b) motion. More-
over, simply as a matter of orderly procedure, the court in
which the motion was properly filed is the one that should
first evaluate its merits.
The Court of Appeals for the Sixth Circuit plainly erred
when it characterized petitioner’s Rule 60(b) motion as an
application for a second or successive habeas petition and
denied relief for that reason. The “federalism” concerns
that motivated this Court’s misguided decisions in Coleman
v. Thompson, 501 U. S. 722 (1991), 13 and O’Sullivan v. Boer-
ckel, 526 U. S. 838 (1999), do not even arguably support the
Sixth Circuit’s disposition of petitioner’s motion. I would
therefore vacate the orders that that court entered on Janu-
ary 18 and February 11, 2002, and remand the case to that
court with instructions to direct the District Court to rule
on the merits of the Rule 60(b) motion.
13 “This is a case about federalism.” 501 U. S., at 726.