The opinion of the court was delivered by: Judge McClure
Before the court is the motion of David M. Griggs under Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from our December 21, 2004 order denying his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Griggs filed a brief in support of his motion on January 9, 2006.
Griggs has already appealed the December 21, 2004 order he now moves the court to reconsider. On June 21, 2005, a panel of the Third Circuit denied Griggs's request for a certificate of appealability. United States v. Griggs, No. 05-1892 (3d Cir. June 21, 2005). After Griggs moved the court of appeals for rehearing, the Third Circuit denied his petition for en banc rehearing on August 1, 2005. United States v. Griggs, No. 05-1892 (3d Cir. Aug. 1, 2005).
For the following reasons we will consider those aspects of Griggs's Rule 60(b) motion that address the manner in which we ruled on his motion under section 2255 and deny his Rule 60(b) motion.
I. Application of Rule 60(b) to Griggs's Habeas Petition
Rule 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" for a list of enumerated reasons. Griggs's motion argues that there were mistakes in the court's factual findings and that his conviction was in part based on a fraudulent affidavit by a police officer. The instant motion, filed within a year of our order denying his motion under section 2255, is timely under the test of Rule 60(b).
Now we examine whether Grigg's Rule 60(b) motion is a second or successive motion under AEDPA that would prevent us from hearing the case without petitioner's first getting the permission of the Third Circuit. How a district court may address a Rule 60(b) motion varies according to what the petitioner challenges in his motion. The Third Circuit's recent holding in Pridgen v. Shannon, explained the matters a district court could consider in an unsuccessful habeas petitioner's Rule 60(b) motion as follows:
[I]n those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition. We believe that this rule is consonant with Congress's goal of restricting the availability of relief to habeas petitioners.
In closing, the Third Circuit in Pridgen counseled that "when a Rule 60(b) motion is in conflict with provisions of AEDPA or is a direct attack on a state conviction, it constitutes the equivalent of a successive habeas corpus petition and should be dismissed." Id. at 729; see also Rules Section 2255 Proceedings Rule 12 (stating Fed. R. Civ. P. may be applied to a 2255 proceeding to the extent they are not inconsistent with statutory provisions or rules governing section 2255). Griggs filed his Rule 60(b) motion after the Third Circuit had already denied him a certificate of appealability (COA), which was necessary for him to appeal our dismissal of his petition under 28 U.S.C. § 2253(c).
We are uncertain as to whether a habeas petitioner's use of a Rule 60(b) motion addressing a dismissed habeas petition is appropriate after the court of appeals has denied the petitioner a COA on that very petition, or whether it would be considered use of a Rule 60(b) motion in a manner that conflicts with provisions of AEDPA. We find it plausible that filing a Rule 60(b) motion after the court of appeals has denied a COA is more like a second or successive motion under AEDPA than filing a Rule 60(b) motion seeking to correct an error in the district court's handling of a petition before a COA is sought. Cf. Tavares v. Meyers, 129 F. App'x 694, 696 (3d Cir. 2005) (affirming district court's decision not to transfer filing construed as Rule 60(b) motion to proper United States District Court of Massachusetts where United States Court of Appeals for the First Circuit had already considered issue in ...