Ronald POST, Petitioner-Appellant, v. Margaret BRADSHAW, Defendant-Appellee, 422 F.3d 419

ORDER ALICE M. BATCHELDER, Circuit Judge. The district court entered an order based upon the procedure outlined in First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976), stating that it is inclined to grant Petitioner Post’s FED. R. CIV. P. 60(b) (“Rule 60(b)”) motion to vacate the judgment dismissing his habeas corpus petition in order to permit Post to undertake limited discovery. Following the entry of this order, Post filed a motion with this court seeking remand. Because the district court committed legal error by failing to recognize that the relief sought in the Rule 60(

b) motion is barred by 28 U.S.C. § 2254(i), and because Post’s motion constitutes a second or successive ha-beas petition that the federal courts do not have the power to adjudicate, Post’s motion for remand must be DENIED. I. The facts in this case are set out in detail in Judge Wells’s order. The facts relevant' to our inquiry are these. In November 1997, Mr. Post, assisted by the Ohio Public Defenders office and one court-appointed private attorney, filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254.

Following the filing of the initial petition, Judge Wells granted in part and denied in part Post’s augmented motion to obtain discovery pursuant to Habeas Rule 6. Mr. Post’s case was then handed from attorney-to-attorney in the Public Defenders office, although the private attorney continued as counsel until he obtained permission from this court to withdraw in June 2004. None of Post’s counsel ever conducted the discovery, and in May 2003, the district court denied his petition for habeas corpus on the merits.

After appealing the district court’s denial of a certificate of appealability for certain claims, Post’s attorneys filed a Rule 60(b)(6) motion for partial relief from the judgment denying habeas relief. The district court issued an order stating that counsel’s failure to pursue discovery was “inexcusable neglect” cognizable under Rule 60(b)(6), and stating its intention to grant the motion. Post’s attorneys then filed in this court a motion for remand. II. At the time that the Rule 60(

b) motion was filed in the district court, Post already had an appeal pending in this court which deprived the district court of jurisdiction to issue a final ruling on the motion. See Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir.1993). Accordingly, the district court provisionally granted a Rule 60(

b) motion pursuant to the procedure this court prescribed in First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976). Under the rule in Hirsch, where a party wishes to file a Rule 60(

b) motion but already has an appeal pending in this court, “the proper procedure is for him to file his motion in the District Court. If that court indicates that it will grant the motion, the appellant should then make a motion in this court for a remand of the case in order that the District Court may grant the motion ....” Id. at 346 (citation omitted). On Hirsch review, we may not simply grant such motions for remand as a matter of course — particularly where, as here, the basis for remand cited by the district court is predicated on legal error.

It would be odd indeed if the Hirsch procedure — which is intended to promote judicial efficiency — nonetheless required this court to rubberstamp remand motions arising from Rule 60(

b) claims that cannot succeed as a matter of law. As an initial matter, we note that the district court issued its provisional order without the benefit of relevant ease law that was subsequently handed down. In In re Abdur’Rahman, 392 F.3d 174 (6th Cir.2004) (en banc), we held that in cases filed after the effective date of the Antiter-rorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), “[in] which the factual predicate in support of the motion attacks the manner in which the earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b),” this court may consider the claim as a motion under Rule 60(

b) instead of dismissing it as a second or successive habeas petition. Abdur’Rahman, 392 F.3d at 177. In Gonzalez v. Crosby, — U.S. -, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), decided after Abdur’Rahman, the Supreme Court held that Rule 60(

b) remains viable in the habeas context only to the extent it is “not inconsistent with” AEDPA and other applicable federal statutory provisions and rules. Gonzalez, 125 S.Ct. at 2646. Gonzalez also held that a habeas petitioner’s filing that “seeks vindication of’ a federal habeas claim is, if not in substance a habeas corpus application, “at least similar enough that failing to subject it to the same requirements would be ‘inconsistent with’ ” the AEDPA-amended habeas statutes. Id. at 2647.

Finally, Gonzalez held that “[i]f neither the [Rule 60(b) ] motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant’s state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules.” Id. at 2648. Because it is a Supreme Court case decided subsequent to Abdur’Rahman, Gonzalez controls our analysis of Post’s Rule 60(

b) motion. III. The threshold issue we must decide is whether the district court has jurisdiction to grant Post’s motion, even if it purports to be based on a ground enumerated in Rule 60(b). In determining that Post’s motion falls within one of the grounds enumerated in Rule 60(b) — specifically, Rule 60(b)(6) — the district court relied upon Fuller v. Quire, 916 F.2d 358 (6th Cir.1990).

In Fuller, we held that the district court properly granted a Rule 60(b)(6) motion for “inexcusable neglect” where the petitioner’s attorney defaulted the petitioner’s civil case by failing to appear at a docket call, and where the attorney admitted that he had no cause for his negligence. Id. at 361. The district court failed to take into account, however, that unlike Fuller’s case, Post’s case is a post-conviction collateral attack brought pursuant to 28 U.S.C. § 2254, as amended by AEDPA § 104.

Relevant to this case, § 2254 specifically mandates that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.” 28 U.S.C. § 2254(i). If Post’s Rule 60(

b) motion “arises under” § 2254, then it is precluded by the explicit provisions of § 2254(i). We conclude that this motion is thus precluded. Post’s motion seeks relief from the judgment entered in his habeas proceeding brought under 28 U.S.C. § 2254. The motion seeks relief based on the failure of Post’s counsel to pursue the discovery for which Post had sought and obtained the district court’s approval. We think it is clear that, whatever appellation we might apply to counsel’s neglect, the ground on which Post seeks relief in this Rule 60(

b) motion is the incompetent and ineffective representation he received during that federal post-conviction collateral review. But relief on that ground is not permitted under AEDPA.

Section 2254 is expansive in its prohibition here: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.” 28 U.S.C. § 2254(i). The language of this statute is clear. It expressly bars relief grounded on claims of incompetent or ineffective counsel in federal post-conviction proceedings. See Duncan v. Walker, 533 U.S. 167, 172-73, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (highlighting the term “federal” in 28 U.S.C. § 2254® to illustrate that Congress deliberately included “federal” in several sections of AEDPA to denote the applicability of provisions— such as the rule against ineffective assistance claims — to federal collateral post-conviction proceedings).

And it bars “relief,” not simply particular kinds of relief, such as a writ of habeas corpus. We conclude, therefore, that the relief Post seeks is explicitly barred by the provisions of § 2254®. It is well settled that the Federal Rules of Civil Procedure “do not extend or limit federal jurisdiction, but they implement the exercise of existing jurisdiction, which has been conferred by statute.” Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165, 168 (5th Cir.1950); see also Sibbach v.

Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 85 L.Ed. 479 (1941) (noting that the federal jurisdiction created by statute may not be extended or restricted by court-enacted rules). It is equally “well established that federal courts are courts of limited jurisdiction, possessing only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree.” Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir.2003) (internal citations omitted). The jurisdiction of federal courts to entertain Rule 60(

b) challenges to judgments entered in habeas proceedings brought under AEDPA, therefore, must be predicated on the very same jurisdiction granted to the federal courts by AEDPA. Gonzalez makes clear that, post-AEDPA, Rule 60(

b) continues to have “an unquestionably valid role to play in habeas cases.” Gonzalez, 125 S.Ct. at 2649. But Gonzalez also makes it clear that when the AEDPA-amended habeas statutes conflict with Rule 60(b), AEDPA controls. See id. at 2646; see also Callihan v. Schneider, 178 F.3d 800, 802 (6th Cir.1999) (“[A] statute passed after the effective date of a federal rule repeals the rule to the extent of the actual conflict.”) (citing Autoskill Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476, 1485 (10th Cir.), cert. denied, 510 U.S. 916, 114 S.Ct. 307, 126 L.Ed.2d 254 (1993)).

Here, of course, AEDPA has made it explicit that a claim of “ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings” is not a ground for relief in a proceeding arising under § 2254. The bringing of such a claim is therefore not a valid role for Rule 60(b), and AEDPA denies the federal courts the power to entertain Post’s motion in the instant case. IV. Post’s motion is clearly a second or successive habeas petition that is forbidden by the AEDPA-amended provisions of 28 U.S.C. § 2244(b). A Rule 60(

b) motion is a second or successive habeas petition when it “seeks vindication of’ or “advances” one or more “claims.” Gonzalez, 125 S.Ct. at 2647-48. A “claim” is “an asserted federal basis for relief from a state court’s judgment of conviction,” and “[a] motion can ... be said to bring a ‘claim’ if it attacks the federal court’s previous resolution of a claim on the merits.” Id. “On the merits” refers “to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(

a) and (d),” and a motion does not attack a determination on the merits when the motion “merely asserts that a previous ruling which precluded a merits determination was in error — for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at 2648 n. 4. Post’s Rule 60(

b) motion seeks to advance, through new discovery, claims that the district court previously considered and dismissed on substantive, constitutional grounds: i.e., on the merits. The motion is therefore a second or successive habeas petition.

It makes no difference that the motion itself does not attack the district court’s substantive analysis of those claims but, instead, purports to raise a defect in the integrity of the habeas proceedings, namely his counsel’s failure— after obtaining leave to pursue discovery— actually to undertake that discovery; all that matters is that Post is “seekfing] vindication of’ or “advancing]” a claim by taking steps that lead inexorably to a merits-based attack on the prior dismissal of his habeas petition. See id. at 2647-48. In fact, Gonzalez makes explicit that a Rule 60(

b) motion is in effect a successor petition if it “seek[s] leave to present ‘newly discovered evidence’ in support of a claim previously denied,” id. at 2647 (internal citation omitted); and that “an attack based on the movant’s own conduct, or his habeas counsel’s omissions, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.” Id. at 2648 n. 5 (internal citation omitted). Through his Rule 60(

b) motion, Post seeks discovery that might provide new evidence that he could present in support of claims previously denied, and his theory of “inexcusable neglect” constitutes an attack based on his habeas counsel’s omissions. The Rule 60(

b) motion, therefore, is in effect a second or successive habeas petition that seeks to present claims that have already been adjudicated in a previous petition. Because AEDPA denies federal courts the jurisdiction to adjudicate such a petition, see id. at 2646-48; 28 U.S.C. § 2244(b)(1), we must deny Post’s motion. V.

That we must deny the relief Post seeks does not vindicate the egregious conduct of the Ohio Public Defenders Office in this case — conduct which the district court held and the Ohio Public Defenders Office not only admits but now, in an apparent attempt to circumvent the law, affirmatively argues was “inexcusable neglect.” Perhaps Congress had in mind exactly this kind of “representation” by counsel when it removed “ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings” as a ground for relief in proceedings arising under § 2254.

In any event, we are curious as to the justification for the public funds paid to the Ohio Public Defenders office and the outside counsel for Mr. Post’s habeas proceeding. Based on the district court’s recounting of the facts, there is scant evidence of competent legal work being accomplished by counsel in Mr. Post’s case between the time that the augmented motion for discovery was filed and the time that the COA appeal and Rule 60(

b) motion were filed. And yet the record reflects that William Mooney of the Ohio Public Defenders Office was paid at least $15,637, William Lazarow of the Ohio Public Defenders Office was paid at least $6,165.60, and Henry Hilow, Post’s outside counsel, was paid at least $15,260.10, all out of monies provided under the Criminal Justice Act. VI. We understand that Mr. Post was failed by his attorneys. However, because there is no constitutional right to counsel in ha-beas proceedings, see Coleman v.

Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); because Congress has forbidden relief for ineffective or incompetent representation in post-conviction collateral review; and because Congress has barred relief for claims adjudicated in a previous habeas petition, the district court cannot grant Post’s Rule 60(

b) motion, and we therefore have no basis upon which to remand the case. Accordingly, we DENY the Motion to Remand. . We are puzzled by the dissent's argument that § 2254(i) “merely codifies the long held view that alleged constitutional errors during collateral attack of a state court conviction cannot be grounds for issuance of a writ of habeas corpus.” See Dissent at 9. If Congress had meant to codify the ineffectiveness standard of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), one would expect Congress to have confined itself to the precise language of the Supreme Court's opinion; however, neither "incompetent" nor "incompetence” is ever used by the Strickland majority. But more fundamentally, in order to obtain federal habeas relief, a petitioner must establish that he is “in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

Section 2254(i)’s "ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings” does not address the legality of the state court judgment, and, as the dissent concedes, does not even identify a federal constitutional violation-since a petitioner does not have a constitutional right to habeas counsel, much less a right to effective habeas counsel. See Dissent at 9. The dissent’s

interpretation of § 2254(

i) therefore requires us to believe that Congress enacted the provision to bar only a type of habeas relief that is clearly not a valid form of habeas relief independent of § 2254(i). Our

interpretation of § 2254(

i) as prohibiting more than just habeas relief for constitutionally ineffective counsel is not only a commonsense reading of § 2254(i)'s text, but also avoids an

interpretation that renders the provision entirely superfluous. See Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762, 769 (6th Cir.2005) (“Courts are to make every effort to interpret provisions so that other provisions in the statute are not rendered inconsistent, superfluous, or meaningless.”).