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Monday’s Filing

On Monday we filed this amicus brief on behalf of Tennessee death row inmate Abu-Ali Abdur’Rahman in No. 04-6432, Gonzalez v. Crosby. In Gonzalez, which will be argued on April 25, the Court will consider whether all Rule 60(b) motions – other than those alleging fraud under Rule 60(b)(3) – are “second or successive” habeas petitions prohibited by the AEDPA. This is the third brief that we have filed so far this year with Pam Karlan and the students at the Stanford Law School Supreme Court Litigation Clinic. Brad MacLean and Bill Redick — who have represented Abdur’Rahman for nearly a decade — are co-counsel with us on the brief as well.

Our amicus brief, which relies on a comprehensive survey of all electronically available post-AEDPA decisions, argues that although Rule 60(b) relief is rarely granted, it is essential to maintain the integrity of the habeas proceeding in a small but compelling subset of cases. For example, Abdur’Rahman’s federal habeas petition presented substantial evidence of grave prosecutorial misconduct during his state trial, but the district court – relying on a misconstruction of Tennessee post-conviction law – erroneously deemed the bulk of those claims procedurally defaulted. The brief further contends that the “functional” approach adopted by the majority of circuits (including the en banc Sixth Circuit in Abdur’Rahman’s case) best preserves the balance between finality and preventing injustice that Congress intended to strike with Rule 60(b): it allows Rule 60(b) motions that attack only the integrity of the habeas proceeding itself, while precluding “end runs” around AEDPA through Rule 60(b) motions that are actually collateral attacks on the underlying convictions.

If Abdur’Rahman’s name and the issues sound familiar to you, it’s because the Court granted cert. in his case in 2002 to decide the identical question, but dismissed the case (presumably for lack of a final judgment below) as improvidently granted after briefing and oral argument. (Disclosure: We were involved in that case, as were MacLean and Redick.)