Roger C. Day, Jr. v. L. Steven Benton ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16958 Sept. 24, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00054-CV-CAR-5
ROGER C. DAY, JR.,
Petitioner-Appellant,
versus
L. STEVEN BENTON,
Warden, Macon State Prison,
MILTON E. NIX, JR.,
State Board of Pardons and Paroles,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 24, 2009)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Roger C. Day, Jr., a pro se state prisoner, appeals the dismissal of his
Fed.R.Civ.P. 60 post-judgment motion challenging the dismissal without prejudice
of his 28 U.S.C. § 2254 petition. The district court dismissed Day’s first habeas
petition (Day I) in 2005 for failure to exhaust state remedies, after the state asserted
that Day had not exhausted all remedies. Day responded in two ways: (1) he filed
another habeas petition, which the district court dismissed as untimely in Day v.
Hall, No. 5:06-CV-052 (Day II), but we reversed and remanded the case for further
proceedings, Day v. Hall, 528 F.3d 1315 (11th Cir. 2008), and it is currently stayed
pending our decision in this appeal; and (2) he tried to assert his supposedly
unexhausted claims in state court, and the state court determined that Day’s claims
were barred by res judicata because he had brought them in previous state actions.
Subsequently, in May 2008, Day filed the present pro se Rule 60(b) motion
for relief from the judgment in Day I, seeking to vacate the dismissal without
prejudice on the ground that the state’s inconsistent positions on exhaustion
constituted “fraud upon the court” and prevented him from having his claims
adjudicated on the merits. The district court dismissed the motion as untimely,
finding that Day had not filed his Rule 60(b)(3) motion alleging fraud within a year
of the judgment.1 We granted a certificate of appealability (“COA”) on the
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Day also sought relief under Rule 60(b)(5) and (6), without success. Because he does
not challenge the district court’s ruling in this respect, however, those issues are abandoned.
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following issue: “[w]hether the district court erred in determining that Day’s
Fed.R.Civ.P. 60 motion was untimely.” Day argues that the district court erred by
dismissing his Rule 60 motion without considering if it fell within the savings
clause of Rule 60(d), which lacks a time limit. After careful review, we affirm.
We review “a district court’s ruling upon a [Rule 60] motion for abuse of
discretion.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). “Pro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
Rule 60(b) motions challenging the denial of habeas relief are subject to the
restrictions on second or successive habeas petitions if the prisoner is attempting to
either: (1) raise a new ground for relief, or (2) attack a federal court’s previous
resolution of a claim on the merits. Gonzalez v. Crosby, 545 U.S. 524, 530-32
(2005). Rule 60(b) may, however, be used to assert that a federal court’s previous
ruling precluding a merits determination was in error. Id. at 532 n.4.
A COA is required “for the appeal of any denial of a Rule 60(b) motion for
relief from a judgment in a [28 U.S.C.] § 2254” petition. Williams v. Chatman, 510
F.3d 1290, 1294 (11th Cir. 2007). Once granted, appellate review is limited to the
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.), cert. denied, 129 S.Ct. 74 (2008).
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issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998). However, procedural issues that must be resolved before we can
address the underlying claim specified in the COA are presumed to be
encompassed in the COA. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th
Cir. 2001). Moreover, we may affirm the district court on any basis supported by
the record. Watkins v. Bowden, 105 F.3d 1344, 1353 n.17 (11th Cir.1997).
Federal Rule of Civil Procedure 60(b) and (d) provides, in part, as follows:
Rule 60. Relief from a Judgment or Order
(b) Grounds for Relief from a Final Judgment. . . . On
motion and just terms, the court may relieve a party . . .
from a final judgment . . . for the following reasons:
* * * *
(3) fraud . . ., misrepresentation, or
misconduct by an opposing party;
* * * *
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must
be made within a reasonable time -- and for
reasons (1), (2), and (3) no more than a year
after the entry of the judgment or order or
the date of the proceeding.
* * * *
(d) Other Powers to Grant Relief. This rule does not limit
a court’s power to:
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(1) entertain an independent action to relieve
a party from a judgment . . . ; [or]
* * * *
(3) set aside a judgment for fraud on the
court.
Fed.R.Civ.P. 60.
Thus, although subsection (b)(3) limits a party to bringing a motion within
one (1) year, the district court may also entertain an independent action to “set
aside a judgment for fraud on the court” even if more than a year has passed.
Fed.R.Civ.P. 60(d)(3); Rozier v. Ford Motor Co., 573 F.2d 1332, 1337-38 (5th Cir.
1978).2 A court may consider a Rule 60(b) motion as an independent action for
relief where the adverse party would not be prejudiced. See Bankers Mortg. Co. v.
United States, 423 F.2d 73, 77, 81 n.7 (5th Cir. 1970).
“Fraud upon the court” under Rule 60(d) embraces only “ . . . fraud which
does or attempts to, defile the court itself . . . so that the [judiciary] cannot
[properly decide the] cases that are presented for adjudication, and relief should be
denied in the absence of such conduct. Fraud inter parties, without more, should
not be fraud upon the court, but redress should be left to a motion under Rule
2
We adopted as binding precedent all decisions of the former Fifth Circuit issued prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
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60(b)(3) or to an independent action.” Travelers Indem. Co. v. Gore, 761 F.2d
1549, 1551 (11th Cir. 1985) (quotation omitted).
Moreover, the essential elements of an independent Rule 60(d) action were
recited in Bankers Mortg. Co. as follows:
(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the
alleged cause of action on which the judgment is
founded; (3) fraud . . . which prevented the [movant] . . .
from obtaining the benefit of his [position]; (4) the
absence of fault or negligence on the part of [movant];
and (5) the absence of any adequate remedy at law.
Bankers Mortg. Co., 423 F.2d at 79. Independent actions for relief under
subsection (d) “must, if Rule 60(b) is to be interpreted as a coherent whole, be
reserved for those cases of ‘injustices which, in certain instances, are deemed
sufficiently gross to demand a departure’ from rigid adherence to the doctrine of
res judicata.” United States v. Beggerly, 524 U.S. 38, 46 (1998) (quoting
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944)).
Where the district court dismissed a habeas petition for failure to exhaust
without prejudice, the petitioner may refile the action. Leonard v. Wainwright, 601
F.2d 807, 808 (5th Cir. 1979). Moreover, a harmless error, one which does not
affect a party’s substantial rights, is not a ground for “for vacating, modifying, or
otherwise disturbing a judgment.” See Fed.R.Civ.P. 61. For an error to affect
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substantial rights, it generally “must have been prejudicial: It must have affected
the outcome of the district court proceedings.” United States v. Olano, 507 U.S.
725, 734 (1993).
The district court here correctly determined that a motion under Rule
60(b)(3) was untimely. However, because: (i) Day was proceeding pro se; (ii) he
referenced “fraud on the court” at one point; (iii) “fraud on the court” can support
an independent action under Rule 60(d); (iv) there is no express time limit on
bringing such an action under Rule 60(d); and (v) the district court did not consider
this possibility before dismissing Day’s motion as untimely, the primary focus of
our inquiry is on whether this was error, and, if so, whether it was harmless.
Nevertheless, even if we assume, arguendo, that the district court abused its
discretion by not liberally construing Day’s motion as a timely one alleging an
independent action under Rule 60(d), the record does not reflect the essential
elements necessary to bring such an action. Indeed, with respect to the availability
of an adequate remedy at law, the district court dismissed Day’s original § 2254
petition (Day I) without prejudice for lack of exhaustion, and once Day exhausted
his state remedies, he was free to refile his action -- which he apparently did in Day
II, a proceeding that remains pending. Therefore, to the extent the district court
erred by: (i) failing to construe Day’s untimely pro se Rule 60(b) motion as a
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timely one under Rule 60(d); and (ii) dismissing any request by Day for
post-judgment relief thereunder, any error was harmless. Accordingly, we affirm
on this basis.
AFFIRMED.
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