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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case involves an attempt to evade Congress's landmark reform of habeas corpus law in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This law, if properly implemented, will greatly reduce unnecessary delay in the enforcement of capital punishment and reduce the number of correct criminal judgments erroneously overturned on federal habeas. These changes would advance the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On February 17, 1986, over 16 years ago, James Lee Jones and Harold Devalle Miller murdered Patrick Daniels and attempted to murder Norma Norman. Abdur'Rahman v. Bell, 226 F. 3d 696, 699 (CA6 2000). Jones is the petitioner in the present case, now known as Abu-Ali Abdur'Rahman. See id., at 698, n. 1. "Petitioner, armed with a shotgun, and Miller, armed with an unloaded pistol, entered the duplex under the pretext of making a drug purchase. Petitioner and Miller displayed their firearms and forced Daniels and his girlfriend, Norma Norman, to the floor. Petitioner then bound Daniels and Norman with duct tape about their hands, feet, eyes, and mouth. After stealing Daniels's bank card, Petitioner forced Daniels to reveal his PIN number. Petitioner also searched the house and found some marijuana in some sofa cushions." Id., at 699.

Petitioner disputes whether he or Miller actually stabbed the victims. Mr. Daniels was stabbed six times in the chest, while begging for his life. Ibid. Ms. Norman was stabbed several times in the back, but miraculously survived. Ibid. She is not able to tell us which of the intruders did the stabbing, because petitioner, not Miller, taped her eyes shut. See ibid. We do know that petitioner personally did the binding and blindfolding that rendered the victims helpless to be slaughtered. See ibid. We also know that petitioner placed his gun barrel squarely between Ms. Norman's eyes. State v. Jones, 789 S. W. 2d 545, 551 (Tenn. 1990). In short, we know to a certainty that Jones/Abdur'Rahman was not just a minor accomplice along the lines of Sandra Lockett. Cf. Lockett v. Ohio, 438 U. S. 586, 597 (1978) (plurality opinion).

During the penalty phase, petitioner testified that he stabbed both victims. Abdur'Rahman v. Bell, 999 F. Supp. 1073, 1086 (MD Tenn. 1998).

The conviction and sentence were affirmed on appeal. State v. Jones, 789 S. W. 2d 545 (1990). Among the claims rejected was a prosecutor misconduct claim regarding inadmissible evidence in the penalty phase of the circumstances of and sentence for Jones' previous murder. See id., at 551-552. This did not amount to reversible error, given that the fact of the prior murder was admissible and undisputed. See id., at 552.

Jones then applied for state post-conviction relief. The trial court denied the petition, and the Court of Criminal Appeals affirmed. Jonesv. State, No. 01C01-9402-CR-00079, 1995 Tenn. Crim. App. LEXIS 140 (Feb. 23, 1995). Among the claims rejected on the merits by that court was a claim that the prosecution failed to disclose certain evidence as required by Brady v. Maryland, 373 U. S. 83 (1963). See id., at *7.

Petitioner then requested leave to appeal to the Tennessee Supreme Court, see 999 F. Supp., at 1078, a form of discretionary review. Seeid., at 1080. Sixth Circuit precedent in effect at the time had established that omission of a claim from such a petition constitutes a failure to exhaust the claim, leading to default of the claim. See Silverburg v. Evitts, 993 F. 2d 124, 126 (CA6 1993). Petitioner omitted some of the misconduct claims from the petition. See 999 F. Supp., at 1082.

Petitioner filed a federal habeas petition. The District Court granted summary judgment for respondent on the misconduct claim regarding evidence of the prior murder. See id., at 1079. It also rejected two other Brady claims on the merits, finding that mental health records were not material and that lab reports had, in fact, been given to the defense. Id., at 1089-1090. ⁽²⁾ The District Court denied the misconduct claims not presented to the Tennessee Supreme Court as defaulted. Id., at 1087. The District Court granted relief on the penalty, finding ineffective assistance of counsel. Id., at 1102. The state appealed the latter holding, and petitioner appealed on instruction and guilt-phase issues. See 226 F. 3d, at 700, 709, 711, 713. Petitioner did not appeal the prosecutor misconduct issue. See J. A. 155. The Court of Appeals reversed on the ineffective assistance issue and otherwise affirmed. 226 F. 3d, at 715. This Court denied certiorari. Abdur'Rahman v. Bell, 534 U. S. __, 151 L. Ed. 2d 295, 122 S. Ct. 386 (2001).

While the certiorari petition was pending, the Tennessee Supreme Court promulgated Rule 39. In response to a suggestion in O'Sullivanv. Boerckel, 526 U. S. 838, 847 (1999), the new rule states that a petition for discretionary review "shall not be required . . . in order to be deemed to have exhausted all available state remedies . . . ." The state disputes whether this rule reaches back to retroactively cure a claim previously defaulted under the rules of Silverburg and O'Sullivan. See J. A. 271-273.

Over three months after promulgation of the rule, and following this Court's denial of certiorari, petitioner moved for rehearing in the Court of Appeals and also moved for relief from judgment in the District Court under Rule 60(b) of the Federal Rules of Civil Procedure. See J. A. 152, 158. The District Court treated the motion as a successive habeas petition and transferred the case to the Court of Appeals. J. A. 40-42. The Court of Appeals denied both the petition for rehearing and the motion for leave to file a successive habeas petition. J. A. 39.

SUMMARY OF ARGUMENT

The Federal Rules of Civil Procedure do not apply to habeas corpus when their application would be contrary to the statutes or rules specifically governing habeas, or when they are unsuited to the specialized needs of this unique procedure. In particular, Rule 60(b) cannot be used to evade the successive petition rule. Congress has decided when a second round of habeas litigation may be commenced and has established special procedural safeguards for quickly determining which cases qualify for a second round. The purpose of this reform is not to reduce the number of petitions granted on a second round, which was never the problem, but to preclude the second round and its delay altogether. Broad consideration of Rule 60(b) motions would defeat the purpose of the statute.

The successive petition rule applies to claims denied in the first round on the basis of procedural default, in addition to those denied on the "merits" in the narrow sense. The rule is a modified rule of res judicata. Under the rule of Angel v. Bullington, any final decision that relief cannot be granted on the claim is a decision on the "merits" for res judicata purposes. Cases involving dismissals without prejudice, rendered in the expectation that the claim can be considered in the future, are inapposite.

Even in an ordinary civil case, Rule 60(b) cannot be used to revive an issue intentionally omitted from the appeal. Petitioner could have appealed the District Court's decision on the default issue to the Court of Appeals and chose not to. Under Ackermann v. United States, Rule 60(b) is not available to revive the claim.

The Court of Appeals was well within its discretion to refuse to consider a claim raised for the first time in that court on petition for rehearing. There is no miscarriage of justice in this case that would warrant a departure from normal procedure. Petitioner is guilty of murder. He was an active participant, not a minor accomplice, regardless of which version of the facts is believed. He has murdered before. Justice is long overdue in this case.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

2. Petitioner's extended discussion about the splattering of blood, see Brief for Petitioner 10-19, must be read in light of the fact that the lab report showing no blood on his coat had, in fact, been disclosed to the defense.