PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

                  No. 12-2283
                  ___________

              ZACHARY WILSON,

                                Appellant

                        v.

SECRETARY PENNSYLVANIA DEPARTMENT OF
               CORRECTIONS;
  DONALD VAUGHN, Superintendent of the State
      Correctional Institution at Graterford
                  __________

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
             (D.C. No. 2-02-cv-00374)
    District Judge: Honorable John R. Padova
                   ___________

            Argued January 15, 2014
       Before: AMBRO, HARDIMAN and
       GREENAWAY, JR., Circuit Judges

             (Filed: March 16, 2015)
Michael Wiseman, Esq. [Argued]
P.O. Box 120
Swarthmore, PA 19081

      Attorney for Plaintiff-Appellant

Thomas W. Dolgenos, Esq. [Argued]
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

      Attorney for Defendants-Appellees

                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge

        Appellant Zachary Wilson holds the remarkable
distinction of having received writs of habeas corpus vacating
not one, but two murder convictions. These victories have
been Pyrrhic, however, as Wilson has remained incarcerated
since the Commonwealth of Pennsylvania decided to
prosecute him anew for both crimes. After his rearraignment
in state court, Wilson promptly returned to federal court and
filed motions seeking to bar a retrial. The District Court for
the Eastern District of Pennsylvania denied Wilson’s motions
and he filed this appeal.




                              2
                               I

        The facts underlying Wilson’s convictions have no
bearing here, but the unusual procedural posture of the case
requires us to describe in some detail what transpired in the
state courts and in the District Court.

       Wilson was convicted in 1984 by a jury in the
Philadelphia County Court of Common Pleas of murdering
David Swift and was sentenced to life in prison. Four years
later, a different Philadelphia jury convicted him of an
unrelated crime: the murder of Jamie Lamb. Wilson was
sentenced to death for that offense, in part because of his
previous conviction for murdering Swift.

       After Wilson exhausted his direct and collateral
appeals in state court, he filed a federal habeas petition under
28 U.S.C. § 2254 claiming that his conviction in the Swift
case was unconstitutional because the jury was empaneled in
violation of Batson v. Kentucky, 

(1986). On April
19, 2004, the District Court granted the writ, stating:

       IT IS HEREBY ORDERED that the Petition for
       a Writ of Habeas Corpus is GRANTED. IT IS
       FURTHER ORDERED that [Wilson’s]
       convictions of May 16, 1984 for First Degree
       Murder and Possessing an Instrument of Crime
       . . . are VACATED. The Commonwealth of
       Pennsylvania may retry [Wilson] on these
       charges within 180 days of the date of this
       Order.




                               

. Beard, 

, 450 (E.D. Pa. 2004).
The District Court’s opinion in support of its order noted that
Wilson was on death row for his conviction in the Lamb
murder. 

The Commonwealth appealed the order of
the District Court and we affirmed. Wilson v. Beard, 

(3d Cir. 2005).

        At no point during the federal court proceedings in the
Swift case did the Commonwealth ask the District Court to
stay its order pending appeal or for an extension of the 180-
day period established by the District Court. Yet Wilson was
neither retried nor released because he was on death row for
the Lamb murder. Between November 2, 2005, and February
18, 2010, there was no activity in the case.

       After the District Court vacated Wilson’s conviction
for the Swift murder and while that order was under review
by our Court, he filed a petition for writ of habeas corpus
seeking to invalidate his conviction for the Lamb murder.
This time, Wilson claimed the Commonwealth violated Brady
v. Maryland, 

(1963), by withholding exculpatory
information that would have allowed him to impeach the
three main witnesses against him. The District Court
conditionally issued a writ in August 2006, stating that the
Commonwealth “may retry [Wilson] on these charges within
180 days of the date of this Order,” Wilson v. Beard, 

, at *17 (E.D. Pa. Aug. 9, 2006). Once again, the
Commonwealth appealed and we affirmed the order of the
District Court. Wilson v. Beard, 

(3d Cir. 2009).

       Soon after we affirmed the District Court’s order
granting Wilson habeas relief in the Lamb case, the
Commonwealth moved to retry him for the Swift murder,
nearly five and a half years after the District Court had



                              4
vacated that conviction. On January 22, 2010, the
Philadelphia County Court of Common Pleas appointed
counsel for Wilson in connection with the Swift retrial, and
on February 16, 2010, he was arraigned.1

       Two days later, Wilson filed a motion to enforce writ
of habeas corpus in the District Court, seeking to prevent the
Commonwealth from retrying him because it waited more
than 180 days to do so. The District Court held argument on
the motion to enforce and scheduled an evidentiary hearing.
Prior to the scheduled hearing, Wilson filed a motion seeking
relief under Rule 60(b)(6) of the Federal Rules of Civil
Procedure.2 As with his motion to enforce, Wilson contended
the Commonwealth should be barred from retrying him
because it had failed to do so within the 180 days required by
the District Court’s order. In the alternative—that is, if the
Court interpreted “may retry . . . within 180 days” as “retry
within 180 days or else release him”—Wilson requested an
unconditional writ barring any retrial for the Swift murder.
App. 12-13.

       The District Court held four evidentiary hearings on
the motions, after which the parties filed proposed findings of
fact and conclusions of law. The District Court heard final
argument on April 11, 2012.

      1
       The Commonwealth also moved to retry Wilson for
the Lamb murder, arraigning him in October 2010.
      2
          The relevant portion of Rule 60(b) reads: “On motion
and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for
the following reasons:
        (6) any other reason that justifies relief.”



                              5
       Nine days later, Judge Padova issued a thorough
opinion denying Wilson’s motions. Wilson v. Beard, 

, *1 (E.D. Pa. April 20, 2012). He observed that
Wilson “cite[d] no authority for the proposition that we may
bar his retrial based solely on the Commonwealth’s failure to
retry him within 180 days,” and he opined that Wilson’s
arguments “evidence[d] a misunderstanding of the nature of a
conditional writ of habeas corpus.” 

According to the
District Court, the Commonwealth’s failure to retry Wilson
within 180 days automatically converted the conditional writ
to an absolute writ, which meant that after the deadline
passed, the Commonwealth could no longer imprison Wilson
based on the Swift murder conviction. 

unavailing
to Wilson, however, because he “was not held in custody in
connection with his conviction for the Swift murder at any
time after the [w]rit became absolute in this case.” 

In the District Court’s view: “between January 7, 1988 and
June 9, 2010, he was held as a convicted prisoner awaiting
execution for the murder of Jamie Lamb. Since June 9, 2010,
Wilson has been held as a pretrial murder defendant in
connection with his retrials for both the Swift and Lamb
murders.” 

District Court held that its
order granting the writ simply returned Wilson to the position
he was in before his incarceration: under indictment for the
crime. 

though the Commonwealth “failed to
commence proceedings related to the retrial within the 180
day time period,” it did not violate the terms of the writ. 

Court then denied Wilson’s Rule 60(b)
motion, which had sought essentially the same relief as the
motion to enforce, but on more complex grounds. There,
Wilson argued that he should not suffer a retrial “because the
Commonwealth’s delay in commencing the proceedings




                              6
related to his retrial . . . created extraordinary circumstances
which may be remedied only by such relief.” 

extraordinary circumstances for three
principal reasons. First, “the Commonwealth delayed
commencing his reprosecution for the Swift murder for more
than five years after [the District Court] granted the [w]rit.”

Second, “during the time in which the
Commonwealth delayed his retrial, his mental condition
deteriorated to such an extent that he is no longer competent
to stand trial.” 

attorneys “recently discovered
that the prosecution committed a Brady violation at his trial
with respect to [a key prosecution witness, whose] mental
condition has deteriorated so dramatically since 2005 that he
would not be competent to testify at Wilson’s retrial or to be
cross-examined about the alleged Brady issue.” 

opposed these claims on the merits, but also
argued that they constituted a Sixth Amendment speedy trial
claim that had to be exhausted in state court. 

Court agreed with the Commonwealth,
both procedurally and substantively, observing that “[t]he
prejudice Wilson claims he will suffer as the result of the . . .
delay is clearly the kind of prejudice the speedy trial right was
designed to protect against.” 

Because Wilson’s
claims of delay were new claims that arose after the District
Court issued the writ in 2004 and were unrelated to the
Batson claim that formed the basis for his petition, they had
to be exhausted in state court. 

The District Court
also rejected Wilson’s arguments that he was not required to
exhaust his Rule 60(b) claims and that there was no remedy
available to him in state court. 

Alternatively,
the District Court held that even if Wilson’s claims did not




                               7
have to be exhausted, he had not established extraordinary
circumstances. 

        After Wilson appealed only the District Court’s denial
of his Rule 60(b) motion, we asked counsel to brief the
following issues presented by this appeal’s unique procedural
posture: (1) whether a certificate of appealability is required
and “whether Harbison v. Bell, 

(2009), bears on
that issue;” (2) whether the District Court had jurisdiction to
adjudicate the motion to enforce and the Rule 60(b) motion;
and (3) whether the Commonwealth complied with the
District Court’s conditional habeas order by vacating
Wilson’s conviction on the Swift murder.

                                 II

        We begin, as we typically do, with the question of
jurisdiction. Although neither party claims the District Court
lacked jurisdiction to adjudicate Wilson’s motion to enforce
or his Rule 60(b) motion, “federal courts have an independent
obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties . . . elect not to press.”
Henderson ex rel. Henderson v. Shinseki, 

,
1202 (2011) (citing Arbaugh v. Y & H Corp., 

,
514 (2006)).

                                 A

       The parties assert that because Wilson is not appealing
the denial of the motion to enforce, the question of whether
the District Court had jurisdiction to entertain that motion is
now moot. We agree, though it is worth noting that the
District Court had the power to adjudicate the motion to




                                 8
enforce. See, e.g., Gibbs v. Frank, 

, 205 (3d Cir.
2007) (holding that district courts have “continuing
jurisdiction to address alleged noncompliance with
conditional writ of habeas corpus”) (citing Mickens-Thomas
v. Vaughn, 

, 303 (3d Cir. 2004)).

        The question of the District Court’s jurisdiction over
Wilson’s Rule 60(b) motion is not so clear. The issue arises
frequently after a petitioner is denied a writ of habeas corpus,
but this appears to be our first opportunity to consider it after
a petition was granted. Although we have found no
controlling authority directly on point, the Supreme Court’s
decision in Pitchess v. Davis, 

(1975) (per
curiam), suggests that the District Court had jurisdiction to
adjudicate Wilson’s Rule 60(b) motion. In Pitchess, a state
prisoner (Davis), won conditional habeas relief and the state
promptly moved to retry him. 

In advance of the
retrial, Davis learned that physical evidence had been
destroyed in a routine purge after his original trial but before
the conditional writ had issued. 

Davis then filed a
Rule 60(b) motion in the district court “seeking to ‘modify’
its prior conditional writ of habeas corpus and replace it with
an order granting an absolute writ and enjoining any retrial on
the pending state charges.” 

The district court
granted the motion, concluding that the destruction of
evidence not only violated Brady, but also constituted an
incurable defect that precluded Davis from ever receiving a
fair trial on the charges. 

affirmance by the
Ninth Circuit, the Supreme Court reversed, holding that Davis
had failed to exhaust state remedies on his destruction-of-
evidence claim. 

490.

      In its adjudication of the merits of Davis’s appeal, the
Supreme Court never suggested that the District Court lacked



                               9
jurisdiction to hear his Rule 60(b) motion. Likewise, in its
most recent case interpreting the rule, the Supreme Court
noted that “Rule 60(b) has an unquestionably valid role to
play in habeas cases,” including cases in which the writ has
been granted. Gonzalez v. Crosby, 

, 534 (2005).
Accordingly, we hold that the District Court had jurisdiction
to adjudicate Wilson’s Rule 60(b) motion.

                              B

       We next consider our jurisdiction given that the
District Court denied a certificate of appealability (COA)
under 28 U.S.C. § 2253(c). The Commonwealth claims a
COA is required; Wilson disagrees.

       In Morris v. Horn, 

, 340–41 (3d Cir.
1999), we held that a COA is required to appeal the denial of
a Rule 60(b) motion. However, the vitality of that decision is
undermined somewhat by the Supreme Court’s decision in
Harbison v. Bell, which stated that the COA requirement
“governs final orders that dispose of the merits of a habeas
corpus proceeding—a proceeding challenging the lawfulness
of the petitioner’s 

. Not all orders
in habeas cases fit that description, including the motion at
issue in Harbison, which was “[a]n order that merely denies a
motion to enlarge the authority of appointed counsel.” Id.; see
also Jones v. Ryan, 

, 832 n.3 (9th Cir. 2013)
(suggesting a COA may not be necessary to appeal the denial
or dismissal of “a valid Rule 60(b) motion,” as opposed to
one seeking habeas-style relief).

      Irrespective of the impact of Harbison, this appeal
does not require us to revisit our decision in Morris v. Horn.
As Wilson argues, the Sixth Circuit’s decision in D’Ambrosio




                              10
v. Bagley—which conflicts with the District Court’s decision
in this case—demonstrates that the issue Wilson presents is
“debatable among jurists of reason.” See Lozada v. Deeds,

, 432 (1991) (per curiam). We therefore grant a
COA limited to whether the District Court properly denied
Wilson’s motion to enforce and his Rule 60(b) Motion.
Accordingly, our jurisdiction lies under 28 U.S.C. § 1291 and
§ 2253.3

                              III

       Turning to the merits of Wilson’s appeal, the first and
most important legal principle guiding our inquiry is that we
analyze Rule 60(b) motions in the habeas context based on
the substance of the claim, not the form. 

–32. We exercise plenary review over the District
Court’s legal conclusion that Wilson had to exhaust state
remedies. Hankins v. Fulcomer, 

, 249 (3d Cir.
1991) (“[I]n a federal habeas corpus proceeding the
determination of whether state remedies have been exhausted
and whether exhaustion should be excused involves the
application and interpretation of legal precepts.” (citations
omitted)).



      3
          The Commonwealth relies on Eddleman v. McKee,

(6th Cir. 2009), to argue that we lack
jurisdiction over this appeal because the Commonwealth
complied with the writ the District Court issued. As far as the
motion to enforce is concerned, our precedent forecloses the
argument. See 

–206. And as for the
Rule 60(b) motion, Eddleman does not apply as it was not a
Rule 60 case.



                              11
                              A

       The crux of Wilson’s argument is that he need not
exhaust state remedies because he demonstrated
“extraordinary circumstances” under Rule 60(b). We
disagree.

        “The power of a court to invoke Rule 60(b) to vacate
its own earlier judgment is unquestioned.” Budget Blinds, Inc.
v. White, 

, 251 (3d Cir. 2008). Nevertheless, the
Supreme Court has made clear that Rule 60 applies only to
the extent it does not conflict with other statutes. See

. Because Wilson’s Rule 60(b)
motion raises new substantive claims unrelated to the original
habeas petition, he must exhaust the claims in state court
before a federal court can hear them unless “(i) there is an
absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B). The exhaustion requirement is not
jurisdictional, “but rather addresses federalism and comity
concerns by ‘afford[ing] the state courts a meaningful
opportunity to consider allegations of legal error without
interference from the federal judiciary.” Coady v. Vaughn,

, 488 (3d Cir. 2001) (alteration in original)
(quoting Vasquez v. Hillery, 

, 257 (1986)). The
state can waive the exhaustion requirement by failing to raise
it, 

n.2, but that did not
happen here. “The habeas petitioner has the burden of
proving exhaustion of all available state remedies.” 

.

       In Pitchess, the case we cited previously in support of
our jurisdictional holding, the Supreme Court made clear that



                             12
the exhaustion requirement applies to new claims that a
successful habeas petitioner may raise in a Rule 60(b) 

. In that case, Davis obtained a writ of habeas
corpus, but returned to the district court seeking additional
relief on a new constitutional claim after the state moved to
retry him. 

Like Wilson here, Davis filed a Rule
60(b) motion seeking to “modify” the prior order “and replace
it with an order granting an absolute writ and enjoining any
retrial on the pending state charges.” 

Reversing the
lower courts, the Supreme Court held that Davis was “entitled
to no relief based upon a claim with respect to which state
remedies have not been exhausted.” 

In doing so,
the Court rejected the very same argument Wilson makes:
that claims raised in a Rule 60(b) motion need not be
exhausted. 

       Wilson’s attempt to avoid exhaustion in state court is
foreclosed by Pitchess. His claims relating to the delayed
retrial—which the District Court properly characterized as
speedy trial claims—have never been presented to the state
courts and are unrelated to the Batson violation for which he
was granted habeas relief. As the District Court rightly noted,
it would be improper for the federal courts “to intervene in
[Wilson’s] state court criminal proceedings to prevent the
state court from committing possible future violations of his
Constitutional rights.” Wilson, 

at *19.

                               B

       Wilson attempts to distinguish Pitchess by relying
heavily on the Sixth Circuit’s decision in D’Ambrosio v.
Bagley, 

, 390 (6th Cir. 2011). In that case,
D’Ambrosio received a conditional writ of habeas corpus
because of a Brady violation. 

The order required



                              13
the state to either set aside his conviction and sentence or
conduct another trial within 180 days. 

moved to
retry him within the time allotted, but shortly before retrial
was set to begin, the state notified the defense team about
additional evidence, which caused the court to delay the trial
beyond the 180-day window. 

the state to
ask the federal district court to extend the deadline for the
retrial. 

by asking the federal court to
grant an unconditional writ and bar his reprosecution. 

The federal court partially granted D’Ambrosio’s
motion by issuing an unconditional writ because of the state’s
continued misconduct. 

The court declined to bar
retrial, however, because D’Ambrosio could not demonstrate
prejudice from the delay and the court had confidence in the
state’s ability to provide a fair retrial. 

time the district court declined to bar
retrial, the state’s key witness died, which required the
exclusion of his prior testimony under the Confrontation
Clause. 

filed a Rule 60(b) motion asking
the District Court to vacate its earlier order and bar his
reprosecution in light of the witness’s unavailability, as
D’Ambrosio had planned to cross-examine the witness about
the previously withheld Brady material. 

court
agreed, vacating a portion of its original judgment and
reasoning that the circumstances were sufficiently
“extraordinary” to bar D’Ambrosio’s reprosecution. 

The Sixth Circuit affirmed, holding that the district court
had jurisdiction to grant the Rule 60(b) motion, vacate its
prior judgment, and issue an unconditional writ of habeas
corpus. 

Circuit’s opinion relied in part on its
decision in Satterlee v. Wolfenbarger, which noted that



                              14
although the state usually is not precluded from retrying a
successful habeas petitioner, “in extraordinary circumstances,
such as when the state inexcusably, repeatedly, or otherwise
abusively fails to act within the prescribed time period . . . a
habeas court may forbid[] reprosecution.” 

, 370
(6th Cir. 2006) (internal quotations and citation omitted).
D’Ambrosio met that standard, the court reasoned, because
his Rule 60(b) motion relied on the same Brady claims that
formed the basis of his original habeas relief. That fact
distinguished D’Ambrosio from Fisher v. Rose, 

(6th Cir. 1985), a decision of the Sixth Circuit that ordered
exhaustion in state court when a petitioner sought an
unconditional writ based on a speedy trial issue distinct from
the Confrontation Clause claim raised in his original petition.

       Although Wilson accurately describes D’Ambrosio, we
are unpersuaded by that opinion. As Judge Boggs opined in
dissent: “Pitchess makes clear that Rule 60(b) cannot be used
to circumvent section 2254’s exhaustion requirement, and its
holding directly controls this case.” 

. We need not repeat the reasons underlying Judge
Boggs’s dissent because it suffices to say that they are
essentially the same reasons we have articulated regarding
Wilson’s duty to exhaust his state court remedies.

        But even assuming that D’Ambrosio was correct,
Wilson’s case is readily distinguishable. Unlike D’Ambrosio
(but like the petitioner in Fisher), Wilson does not reprise his
Batson claim in federal court. Rather, he makes what the
District Court rightly characterized as an entirely new claim,
namely, that he was denied his constitutional right to a speedy
trial. Wilson has never presented this claim to the state courts
and, unlike in D’Ambrosio—where the death of the key



                              15
witness demonstrated that no state retrial could rectify the
Brady violation at issue in the original trial—Wilson does not
contend that the Batson error that tainted his original trial will
be repeated at his retrial. This critical factual distinction
renders D’Ambrosio unhelpful to Wilson.

                                C

        Finally, Wilson argues that even if exhaustion is
required, it would be futile. Wilson Br. 33. Specifically,
Wilson notes that his health has deteriorated so much since
2004 that he may no longer be competent to stand trial. 

His “longstanding-delusional disorder” has
intensified, and according to his expert, he is “not able to
meaningfully assist counsel in the development of a defense
that is important to the continuance of this proceeding.” 

Wilson also contends that the Commonwealth’s main
witness against him in the Swift case has also “suffered a
significant and debilitating deterioration in his mental health
during the period of delay” and consequently may be
unavailable as a witness on retrial. 

Wilson
argues that the Commonwealth is responsible for these
delays—first, by concealing the evidence underlying his
Batson claim for ten years, and then by waiting more than
five years after the District Court granted habeas to move to
retry him.

       We express no opinion regarding the merits of these
claims, since our task is to determine which court should
adjudicate them in the first instance. As Wilson admitted
during oral argument in the District Court, he can “raise both
a Sixth Amendment speedy trial claim and a state law speedy
trial claim pursuant to Pennsylvania Rule of Criminal
Procedure 600 in the state court.” Wilson, 

                               16
at *11. This is inadequate, Wilson insists, because forcing
him to exhaust his new claims in state court “would subject
him to the very harm that he sought to prevent when he filed
the [Rule 60(b)] Motion.” Wilson Br. at 29. Reduced to its
essence, Wilson’s argument “assumes, ultimately, either the
incompetence or the bad faith of [the] state judiciary.”
Eddleman v. McKee, 

, 413 (6th Cir. 2009). But
as we have stated, “[b]y requiring exhaustion, federal courts
recognize that state courts, no less than federal courts, are
bound to safeguard the federal rights of state criminal
defendants.” Parker v. Kelchner, 

, 61 (3d Cir.
2005) (quoting Jones v. Keane, 

, 295 (2d Cir.
2003)). And although the exhaustion requirement in habeas
cases      recognizes      exceptions    for    “extraordinary
circumstances,” it presumes adequate state remedies. Moore
v. DeYoung, 

, 448 (3d Cir. 1975). Without more,
we have held, “[n]othing in the nature of the speedy trial right
. . . qualif[ies] it as a per se ‘extraordinary circumstance’”
exempt from the exhaustion requirement. 

       4
         Our sister courts have reached the same conclusion.
See, e.g., 

(reversing district
court’s decision to bar retrial, describing it as
“effectively . . . adjudicat[ing] a speedy-trial claim that had
never been presented to, much less ruled upon, by the . . .
state courts”); Capps v. Sullivan, 

, 353–54 (10th
Cir. 1993) (holding that successful habeas petitioner
complaining of delay in retrial may have speedy trial claim,
but would have to satisfy exhaustion requirement); Moore v.
Zant, 

, 320 (11th Cir. 1992) (noting that
successful habeas petitioner can assert speedy trial rights
related to the state’s post-habeas delays in his upcoming state



                              17
                             IV

       For the reasons stated, we hold that the District Court
had jurisdiction to adjudicate Wilson’s Rule 60(b) motion
filed after he had been issued a writ of habeas corpus. We
also hold that the District Court did not err when it required
Wilson to exhaust in state court the new claims he raised in
his Rule 60(b) motion. We will affirm the judgment of the
District Court.




proceedings); Fisher v. Rose, 

, 791–92 (6th Cir.
1985) (indicating that speedy trial claims, including those
stemming from delay in retrying successful habeas
petitioners, are ordinarily subject to exhaustion and listing
other cases that held the same).




                             18