The opinion of the court was delivered by: Charles S. Haight, Jr., Senior United States District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Roy William Harris has moved pursuant to Rule 60(b)(6), Fed.R. Civ. P., for relief from the Opinion and Order of this Court dated May 20, 1998, which dismissed Harris's petition for a writ of habeas corpus under 28 U.S.C. § 2255. Harris v. United States, 9 F. Supp.2d 246 (S.D.N.Y. 1998), aff'd., 216 F.3d 1072, 2000 WL 730375 (2d Cir. 2000) (table).*fn1 Harris seeks by his present motion to reduce the length of his sentence, on the ground that this Court's Sentencing Guideline calculations were incorrect. The present circumstances of the case are described in this Court's opinion dated October 30, 2002 and reported at 2002 WL 31427358 (the "October Opinion"), familiarity with which is presumed.
In the October Opinion I ruled that Harris's Rule 60(b) motion was not procedurally barred, and declared my intention to consider its merits. The government moved for reconsideration of that ruling. I decided to combine the government's renewed assertions of procedural bar with a consideration of the merits of Harris's challenge to the Court's sentencing calculations. Further briefs were exchanged. Counsel for the parties argued both aspects of the case on February 5, 2003. For the reasons I stated at that hearing, Tr. 2-5, and do not here reiterate, I will state my views on the merits of Harris' motion even if I conclude that it is procedurally barred. I consider these two questions in turn.
In its initial opposition to Harris's motion, the government contended that four procedural bars precluded Harris from challenging the Court's Sentencing Guidelines calculations and consequently the length of his sentence: (1) failure to raise these sentencing issues at the sentencing hearing; (2) failure to raise those issues on direct appeal; (3) the impropriety of using a Rule 60(b) motion to circumvent the statutory restrictions on second or successive § 2255 habeas petitions; and (4) the asserted untimeliness of the Rule 60(b) motion. At oral argument on February 5, 2003 the government abandoned the first asserted bar, the sentencing minutes having revealed that counsel then representing Harris had raised the points at issue. Government counsel laid initial stress upon the third procedural bar, and I consider that question first in this Opinion.
A. The Efficacy of Harris' Rule 60(b) Motion
The government contended that Harris' utilization of Rule 60(b) as a vehicle for relief is "twice damned: first, as an impermissible effort to circumvent the one-year statute of limitations on bringing claims under § 2255; and second, as an equally impermissible effort to circumvent the statutory restrictions on second or successive § 2255 petitions." October Opinion at *8. I rejected the first contention summarily, reasoning that the government had failed to "show that, as a matter of law, I am required to peel off Mr. Lynam's [counsel for Harris] Rule 60(b) label and affix a § 2255 label." Id. The "question of substance" was "whether Harris was impermissibly invoking Rule 60(b) to circumvent the statutory restrictions on second or successive habeas corpus applications found in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244 (b), incorporated by reference in the last paragraph of § 2255." Id. at *9 (footnote omitted). That question is also dispositive, since it is common ground that if the procedural vehicle of a Rule 60(b) motion is not available to Harris, he cannot surmount the restrictions imposed by the AEDPA. See the October 30 Opinion, 2002 WL 31427358, at *9 n. 5.
In answering that question in the negative, I relied upon Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001), where the Second Circuit said:
We now rule that a motion under Rule 60(b) to vacate
a judgment denying habeas is not a second or
successive habeas petition and should therefore be
treated as any other motion under Rule 60(b).
252 F.2d 191
at 198. That language is seemingly very broad; but the court said later in Rodriguez::
We note that the ground petitioner asserts in
support of his motion — his claim that Mort,
his state trial attorney, made fraudulent
representations to the federal district court and
that the respondent fraudulently concealed that
respondent had deposed Mort — relates to the
integrity of the federal habeas proceeding, not to
the integrity of the state criminal trial. These
grounds, if proven, would simply result in the
reopening of the federal habeas proceeding —
not in the vacating of the state criminal judgment.
252 F.3d at 199.
In its first brief the government relied upon that language to argue that Rodriguez is "better read" as holding that Rule 60(b) motions will not be treated as second or successive petitions when they go to the integrity of the initial habeas proceedings, which the government contended Harris's Rule 60(b) motion did not do. See October Opinion at *11. In the October Opinion I rejected that argument for two reasons:
First, the government reads Rodriguez too narrowly,
given the broad language with which the Second
Circuit expressed its reasoning, a rationale that
would on its face apply to all Rule 60(b) motions to
vacate habeas denials, whether or not the motion
attacked the integrity of the initial habeas
proceeding. Second, even on the government's narrow
reading of Rodriguez, Harris is in fact attacking
the integrity of the initial habeas proceedings
submitted by Mr. Conway [counsel for Harris at the
time]. Specifically, Harris contends that Mr. Conway
rendered ineffective assistance of counsel by
failing to include in the habeas petition the
sentencing claims which Mr. Lewis's [counsel for
Harris at the time] ineffective assistance caused to
be omitted from the direct appeal.
Id. The government's motion for reconsideration on the procedural bar aspect of the case challenges both reasons and demonstrates the necessity for further analysis.
First, as to the breadth of Rodriguez's language: in a subsequent decision, Kellogg v. Strack, 269 F.3d 100, 102 n. 2 (2d Cir. 2001), the Second Circuit appeared to speak in equally broad tongues. ("This Court has recently settled the question of whether a Rule 60(b) motion for relief from the denial of a § 2254 petition should be treated as a second or successive habeas petition. See Rodriguez v. Mitchell, 252 F.3d 191, 198-200 (2d Cir. 2001) (holding that such a motion should not be treated as a second or successive petition.")). But it would now appear that Rodriguez had not settled the question. In the more recent case of Gitten v. United States, 311 F.3d 529, 532 n. 4 (2d Cir. 2002), decided after the October Opinion in the case at bar, the Second Circuit said:
In suggesting that Rodriguez "settled" the issue by
ruling that a 60(b) motion should never be treated
as a second or successive motion, Kellogg v.
Strack, 269 F.3d 100, 102-03 n. (2nd Cir. 2001),
somewhat overstated the matter. Rodriguez concerned
a 60(b) motion with grounds that "relate[d] to the
integrity of the federal habeas proceeding, not to
the integrity of the [underlying conviction]." 252
F.3d at 199.
The government's reconsideration motion requires me to consider what Gitten says about what Kellogg said about Rodriguez, in order to determine whether I can still regard the statement in Rodriguez that "a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition" as applying to all such Rule 60(b) motions, whatever the grounds asserted for them, as Harris contends, or only to Rule 60(b) motions with grounds relating to the integrity of the habeas proceeding, as the government contends.
If the government is correct in that contention, one must evaluate the second prong of my reasoning in the October Opinion, namely, that Harris' Rule 60(b) motion "attack[ed] the integrity of the initial habeas proceedings submitted by Mr. Conway" by contending that Mr. Conway rendered ineffective assistance of counsel in those proceedings. The government contends that conclusion is untenable in light of the Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722, 752-53 (1991), where the Court said:
There is no constitutional right to an attorney in
state post-conviction proceedings. Pennsylvania v.
Finley, 481 U.S. 551 (1987); Murray v. Giarratano,
492 U.S. 1 (1989) (applying the rule to capital
cases). Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel
in such proceedings. See Wainwright v. Torna,
455 U.S. 586 (1982) (where there is no
constitutional right to counsel there can be no
deprivation of effective assistance). Coleman
contends that it was his attorney's error that led
to the late filing of his state habeas appeal. This
error cannot be constitutionally ineffective;
therefore Coleman must "bear the risk of attorney
error that results in a procedural default."
Two months before its decision in Coleman, the Supreme Court decided McCleskey v. Zant, 499 U.S. 467 (1991). McClesky undertook to clarify the abuse-of-the-writ doctrine, "a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions," id. at 489, whose purpose was to "define the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus." Id. at 470.*fn3 The Court held in McCleskey that under the abuse-of-the-writ doctrine, a state defendant's failure to raise a claim under Massiah v. United States, 377 U.S. 201 (1964),*fn4 in his first federal habeas petition barred his assertion of that claim in his second federal petition. Applying standards derived from other contexts, McCleskey held that a federal habeas petitioner could avoid this bar of procedural default only if he could show cause and prejudice: "cause" meaning "some objective factor external to the defense impeded counsel's efforts to raise the claim" in the first proceeding, and "prejudice" meaning "actual prejudice resulting from the errors of which he complains." Id. at 493-94 (citations and internal quotation marks omitted). The Court was careful to observe in McClesky that "[a]pplication of the cause and prejudice standard in the abuse-of-the-writ context" does not "imply that there is a constitutional right to counsel in federal habeas corpus," citing and quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further"). Id. at 494.
That language could certainly be read as a holding that there is no constitutional right to the assistance of counsel in a habeas proceeding; indeed, the Second Circuit read it that way in Bloomer v. United States, 162 F.3d 187, 191 n. 1 (2d Cir. 1998) ("However, a petitioner has no right to the effective assistance of counsel when he collaterally attacks his conviction. (citing McClesky). Thus, ineffective assistance of counsel does not constitute cause sufficient to excuse an abuse of the writ.").*fn5 Any lingering doubt on that score was resolved by Coleman, with its crystal clear declaration that "[t]here is no constitutional right to an attorney in state post-conviction proceedings." That there is no principled difference in that regard between state post-conviction proceedings and federal habeas proceedings is demonstrated by the Second Circuit's decision in Bloomer, which involved a federal habeas petition under § 2255.
Seeking to preserve the benefits of the October Opinion, counsel for Harris perseveres in his contention that "it is too narrow a reading of Rodriguez to interpret it as being limited to the so-called integrity of the proceedings issues," Tr. 35, and that in any event "we do have an integrity of the [habeas] proceedings issue with regard to what happened in this proceeding because of Mr. Conway's presentation." Tr. 36. As for the Second Circuit's decision in the Gitten case, counsel submits that
the real reading of Gitten is not to treat Rule
60(b) motions as second or successive habeas
petition readings. That is what Gitten was telling
the district courts, that they should not consider
these 60(b) motions as second habeases, which is
obviously what I think the government is trying to
do to me in this case.
Tr. 36. As for the Supreme Court's decision in Coleman, counsel contends that "the case is not a case discussing Rule 60(b), and I think that is an important distinction because it came up in a totally different context." Tr. 37.*fn6
The fact that there is no constitutional right to counsel in a habeas proceeding, the argument for Harris concludes, is of no moment, because "there is no constitutional right to counsel in any civil case, and habeas is essentially a civil case," Tr. 38; and there is Second Circuit authority for the proposition that the failures of counsel in a civil case may justify relief under Rule 60(b)(6). See United States v. Cirami, 563 F.2d 26
(2d Cir. 1977) (a civil action brought by the government to recover unpaid taxes).
It seems to me that re-examination of these questions must begin with an effort to divine what effect, if any, the Second Circuit's opinion in Gitten has upon the broad language in Rodriguez, upon which I relied in the October Opinion and Harris continues to rely. That task is complicated, for this reader at least, by somewhat delphic aspects of the Gitten opinion. To paraphrase a public figure of yesteryear, perhaps a useful approach is to watch what the Second Circuit did in Gitten, not just what it said.
In order fully to comprehend what the court of appeals did in Gitten, it is necessary first to understand what the district court did. Defendant Maurice Karl Gitten was convicted for illegal entry following deportation in violation of 8 U.S.C. § 1326 (a) and (b)(2). District Judge Cote sentenced Gitten principally to 77 months in prison, taking the view that Gitten's prior convictions for robbery and attempted burglary were "aggravated felonies" as defined in 8 U.S.C. § 1101 (a)(43), a conclusion that enhanced Gitten's sentence. On direct appeal Gitten, represented by counsel, argued for the first time that the district court committed plain error in sentencing him under the 1998 version of the Sentencing Guidelines rather than the 1995 version. The Second Circuit affirmed the sentence. 231 F.3d 77 (2d Cir. 2000).
Gitten then filed in the district court a pro se petition for habeas corpus under 28 U.S.C. § 2255. United States v. Gitten, No. 00 Civ. 9100, 2001 WL 363052 (S.D.N.Y. Apr. 10, 2001). He argued (1) that his convictions prior to 1999 should not have been considered aggravated felonies for sentencing purposes; (2) his appellate counsel was ineffective for refusing to raise this argument on the direct appeal from his conviction; and (3) his conviction should be vacated because he reentered the United States more than five years before he was "found" in the United States and arrested, as that term is used in the governing statute. Id. at *1. Judge Cote rejected these arguments and dismissed Gitten's habeas petition. She denied a certificate of appealability. So did the court of appeals.
Gitten then moved pursuant to Rule 60(b)(4) and (6) to vacate the district court's denial of his § 2255 habeas petition. Gitten v. United States, No. 00 Civ. 9100, 2002 WL 662883 (S.D.N.Y. Apr. 23, 2002). He argued that the decision denying his petition must be vacated "because certain arguments regarding the validity of his underlying conviction were not presented to the habeas court," an argument that in Judge Cote's view "implicates the integrity of his habeas proceedings." Id. at *2. Gitten also "raised claims that implicate only the validity of his underlying conviction," id. at *3. In charting the proper course to follow, Judge Cote looked to the Second Circuit's decision in Rodriguez for guidance. She noted the Rodriguez court's observation the "the ground urged for the petitioner related to the `integrity of the federal habeas proceeding, not to the integrity of the state criminal trial,'" citing to 252 F.3d at 199, and went on to say:
In Rodriguez, the petitioner's Rule 60(b) motion
asserted that fraudulent representations had been
made to the habeas court and had deprived the
petitioner of evidence necessary to corroborate his
contentions during a hearing on his petition. In
such circumstances, the Rule 60(b) motion directly
implicated the "integrity of the federal habeas
proceeding." It appears then, that the first task of
a court receiving a Rule 60(b) motion attacking a
judgment rendered on the merits of a habeas petition
is to determine whether the motion is addressed to
the integrity of the federal habeas proceedings, or
is instead a vehicle for filing a second or
Id. at *2 (page citations omitted). Judge Cote carried out the task she had set for herself by denying Gitten's Rule 60(b) motion insofar as it was based on the ground that certain arguments were not presented to the habeas court (the "integrity" issue), and transferred the balance of the case to the court of appeals for consideration of certification pursuant to the AEDPA, 28 U.S.C. § 2244.
Apparently that attempted transfer went astray. See Gitten, 311 F.3d at 531 ("However, a search of this Court's records discloses no documents reflecting a transfer pursuant to the First 60(b) Ruling."). Gitten then filed a second Rule 60(b) motion to vacate the district court's denial of his habeas petition, amending with Judge Cote's permission the asserted grounds for relief. Gitten v. United States, No. 00 Civ. 9100, 2002 WL 1891338 (S.D.N.Y. Aug. 15, 2002). Steering the course she had previously laid out, Judge Cote denied Gitten's Rule 60(b) motion insofar as his argument "challenges the integrity of his federal habeas proceedings," id. at *1, and again transferred the balance of the case to the court of appeals for § 2244 certification consideration. This time the transfer went through, and so the stage was set for the Second Circuit's Gitten opinion.
Judge Newman began that opinion by saying that Gitten's application to the court of appeals for leave to file a second collateral attack on a criminal conviction "requires consideration of the procedures to be followed by district courts when a motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure, challenging a denial of a collateral attack, also includes one or more claims that appear to constitute a second collateral attack on the same conviction." 311 F.3d at 530. The court of appeals concluded in Gitten that "a district court has some flexibility in handling such situations, but must be careful not to precipitously treat a Rule 60(b) motion as a second collateral attack requiring referral to this Court to discharge its "gate-keeping' function under 28 U.S.C. § 2244 concerning successive applications for habeas corpus," and remanded the case to the district court for further consideration. Id.
Harris finds comfort in this language, but for purposes of the present analysis it is at least as important to pay attention to what Gitten said about Rodriguez. During the course of its review of pertinent cases, this is how the Gitten court described the holding in Rodriguez: "Rodriguez held that a Rule 60(b) motion challenging the `integrity' of a collateral attack proceeding should not be treated as a second collateral attack on a conviction, even though the motion ultimately seeks to overturn the conviction." 311 F.3d at 531. And again:
Several courts have ruled that a Rule 60(b) motion
challenging the denial of a collateral attack should
be treated as an application for a second or
successive collateral attack and sent to a court of
appeals for its gate-keeping decision. Rodriguez
ruled, however, that a Rule 60(b) motion that
challenges the validity of the denial of a
collateral attack on a conviction is not a second or
successive collateral attack (requiring permission
from the court of appeals to file), even though the
ultimate relief that the movant seeks is to have his
Id. at 532 (citation omitted).*fn7
The court of appeals remanded Gitten to the district court for further consideration in order to avoid the laying of a procedural trap for the unwary, a salutary purpose prompted by Judge Newman's acknowledgment that "[u]nderstanding the new AEDPA procedures is difficult enough for judges and lawyers, and pro se prisoners cannot be expected to have all the complexities of these procedures in mind." 311 F.3d at 533. The particular hazard for such litigants that the Second Circuit identified in Gitten arises from the reality that any portion of a Rule 60(b) motion a district court characterizes as a second or successive collateral attack "will be tested against the strict gate-keeping standards" of the AEDPA, so that "premature treatment of the converted portion of the 60(b) motion as a second collateral attack risks subjecting the prisoner not only to summary denial of that challenge but also to summary denial of any subsequent (i.e., third) challenge as an abuse of the writ." Id. The Second Circuit's opinion in Gitten concludes with this delineation of "the appropriate resolution of the problem posed by a 60(b) motion that includes new collateral attacks on a conviction":
The district courts must be careful not to
recharacterize a portion of the 60(b) motion as a
second or successive collateral attack and transfer
it to this Court until the prisoner has been
informed of the district court's intent to transfer
and afforded a sufficient opportunity to avoid the
transfer by withdrawing (perhaps for later refiling
explicitly as a new collateral attack) the portion
of his 60(b) motion that the district court believes
presents new challenges to the underlying
conviction. of course, after a district court has
denied as meritless the portion of the 60(b) motion
that the court considers to come within the scope of
Rule 60(b), the court always has the alternative of
simply denying, as beyond the scope of Rule 60(b),
the balance of the motion, i.e., the portion
believed to present new attacks on the conviction.
Id. at 534 (emphasis added). Applying these humane principles, the court of appeals remanded the case to the district court "to afford that Court an opportunity either to alert Gitten to his option to avoid transfer, or to deny the Rule 60(b) motion in its entirety." Id.
Examining Rodriguez through the prism of the Second Circuit's post-October Opinion decision in Gitten reveals that Rodriguez cannot sustain the broad reading I gave it in that Opinion and to which Harris still clings. The last-quoted language from Gitten demonstrates the Second Circuit's view that the permissible "scope" of a Rule 60(b) motion brought by a prisoner after denial of his habeas petition is limited to grounds for relief that cannot be characterized as "new attacks upon the conviction" (or, in the case at bar, upon the sentence). That view is consistent with the Gitten court's statement that Rodriguez held "a Rule 60(b) motion that challenges the validity of the denial of a collateral attack on a conviction is not a second or successive collateral attack," 311 F.3d at 532 (emphasis added). That interpretation of Rodriguez, thrice repeated in Gitten (twice in text and once in a footnote), must be taken as an authoritative expression by the Second Circuit of what it held in Rodriguez.*fn8
Accordingly I must abandon the broader interpretation of Rodriguez expressed in the October Opinion. The decisive question then becomes whether Harris' Rule 60(b) motion is in fact an attack upon the validity of his prior unsuccessful habeas proceeding; or whether, in Judge Cote's apt phrase, his Rule 60(b) motion "is instead a vehicle for filing a second or successive petition." Gitten, 2002 WL 662883, at *2.
On one level, it is perfectly apparent that Harris' Rule 60(b) motion is a "vehicle" for a second effort to obtain the same relief. As noted in the Procedural Background section of the October Opinion, 2002 WL 31427358 at *1-*6, the sentencing guidelines arguments Harris makes in his present Rule 60(b) motion are the same he asserted in a prior § 2241 habeas petition in the District of New Jersey. The District of New Jersey treated that petition as falling under § 2255, not § 2241; and, aware of Harris's first § 2255 habeas petition filed in this Court by Mr. Conway, the District of New Jersey transferred the case to the Second Circuit for that court's determination of whether Harris should be given permission under the AEDPA to file a second § 2255 petition. The court of appeals refused permission. Harris then filed this Rule 60(b) motion, making the same sentencing guidelines arguments and seeking the same relief, namely, a reduction in his sentence.
At first blush, it would certainly seem that Harris is using this Rule 60(b) motion as "a vehicle for filing a second or successive petition." However, as noted supra, I dealt with that aspect of the case in the October Opinion by concluding that even on a narrow reading of Rodriguez, "Harris is in fact attacking the integrity of the initial habeas proceedings submitted by Mr. Conway. Specifically, Harris contends that Mr. Conway rendered ineffective assistance of counsel by failing to include in the habeas petition the sentencing claims which Mr. Lewis's ineffective assistance caused to be omitted from the direct appeal." 2002 WL 31427358, at *11.
It is the validity of that conclusion that the government challenges under the Supreme Court decisions in Coleman and McCleskey, and Second Circuit decisions such as Bloomer. The government argues that since there is no constitutional right to the assistance of counsel in a habeas proceeding, it follows as the night the day that in habeas cases where a prisoner is represented, the ineffective assistance of that counsel cannot be said to affect the integrity, constitutional or otherwise, of the habeas proceedings. The Second Circuit seems to have adopted precisely that reasoning in Bloomer, having said that "a petitioner has no right to the effective assistance of counsel when he collaterally attacks his conviction,"*fn9 the court of appeals then took the second step to the conclusion ...