Associate Chief Justice NEHRING, opinion of the Court:
¶ 1 Troy Michael Kell brought a motion under rule 60(b) of the Utah Rules of Civil Procedure in an effort to resuscitate his petition for postconviction relief, which had been denied by the district court and affirmed by us on appeal. The district court determined that relief was unavailable under rule 60(b) because we had already affirmed its rejection of his petition and the case was therefore no longer "pending." Mr. Kell appeals. We affirm on alternate grounds.
¶ 2 Mr. Kell was convicted of murder and sentenced to death.
¶ 3 In January 2009, four months after we ruled on his appeal, Mr. Kell, representing himself, filed a 60(b) motion, asking the district court to relieve him from its earlier dismissal of his petition for postconviction relief.
¶ 4 The State responded with a Motion to Dismiss and for Partial Summary Judgment. In short, the State argued that relief was not appropriate under rule 60(b) because the case was no longer "pending," that Mr. Kell had no right to effective assistance of postconviction counsel, and that he could not show that his postconviction counsel was in fact ineffective.
¶ 5 Mr. Kell did not respond to this motion, but again requested the appointment of counsel, stating that he needed counsel to help him reply to the complex arguments contained in the State's opposition memorandum.
¶ 6 The district court denied Mr. Kell's 60(b) motion and his motion to appoint counsel. The district court held that because Mr. Kell's postconviction petition had been dismissed, appealed, and affirmed on appeal,
¶ 7 Mr. Kell first contends that the district court erred when it held that a motion filed under rule 60(b) of the Utah Rules of Civil Procedure must be filed while the action remains "pending." We typically review a district court's denial of a 60(b) motion for the abuse of discretion because "most are equitable in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review."
¶ 8 Next, Mr. Kell contends that the district court erred when it found that he was not entitled to the appointment of qualified and competent counsel to aid him in filing his Motion for Relief from and to Set Aside Judgment under rule 60(b). The district court's order "implicates issues of statutory and constitutional interpretation that we ... review for correctness."
¶ 9 We turn first to whether the district court erred when it denied Mr. Kell's 60(b) motion on the grounds that the motion was barred because the case was no longer "pending." Mr. Kell asks us to reverse the district court's ruling and remand to allow him to develop his 60(b) motion and other postconviction matters.
¶ 10 Before we address this on the merits, however, we pause to consider whether the issue was preserved and thus available for review on the merits. The State argues that it was not preserved because Mr. Kell did not directly argue to the district court that he was allowed to bring a 60(b) motion under these circumstances. He did not fully develop his argument or offer appropriate citation to authority. The State notes that it argued that a 60(b) ruling was not appropriate and Mr. Kell did not respond.
¶ 11 The State misconstrues the preservation requirement. "The two primary considerations underlying the [preservation] rule are judicial economy and fairness."
¶ 12 As to fairness, "[i]t generally would be unfair to reverse a district court for a reason presented first on appeal." "Notions of fairness... dictate that a party should be given an opportunity to address the alleged error in the trial court. Having been given such a chance, the party opposing a claim of error might have countered the argument."
¶ 13 We next consider whether the district court erred when it determined that the 60(b) motion could not be brought because the case was no longer pending. Rule 60(b) allows "the court ... in the furtherance of justice [to] relieve a party or his legal representative from a final judgment, order, or proceeding" for one of five enumerated reasons or "any other reason justifying relief from the operation of the judgment."
¶ 14 Mr. Kell did not specify which of rule 60(b)'s subsections he relied upon, but his sole argument was that his postconviction attorneys were grossly negligent in representing him and provided him ineffective assistance. This claim does not fall within any of the five specified subsections of rule 60(b). In Menzies v. Galetka, we determined that Mr. Menzies' ineffective assistance of counsel claim fell under the province of subsection (b)(6).
¶ 15 The district court evaluated whether the petition was still "pending." It analyzed the meaning of "pending," including its use in the corollary federal statute, 28 U.S.C. § 2244(d)(2). The district court then turned to Utah case law to determine that "a case is pending from the time of its commencement until its final determination on appeal."
¶ 16 The language of rule 60(b) does not, by its terms, require that an action be "pending." Rule 60(b) does, however, attempt to grapple with the tension between "the competing interests of finality and fairness."
¶ 17 We concede that the procedural posture of Mr. Kell's 60(b) motion is novel, if not unique, and that it raises peculiar questions of its legitimacy. We are reticent, however, to embrace the district court's reasoning and its necessary inference that rule 60(b) can never provide relief after an appellate court
¶ 18 We consider instead the appropriate uses of rule 60(b) more broadly. Rule 60(b) is designed to provide relief to a party that has lost its case. The remedies provided by rule 60(b) should not be understood to be "a substitute for appeal."
¶ 19 We allowed rule 60(b) to be invoked in Menzies, and in fact, stated that "the rule is designed to be remedial and must be liberally applied,"
¶ 20 In this situation, however, Mr. Kell did not move to set aside a default judgment in the hopes of obtaining a hearing. He moved to set aside a judgment that had been heard, ruled on, and appealed, but he attempted to do so on the grounds that the proceedings should be disregarded because his counsel had been ineffective. The generous language of Menzies directed at default judgments therefore does not control this case.
¶ 21 We decline to adopt the district court's rule that a 60(b) motion can never be used after we have reviewed the underlying action. Instead, we would allow a 60(b) motion after an appellate court has affirmed the underlying judgment only in "unusual and exceptional circumstances." And we note that where this court has already had the opportunity to rule on the very motion being attacked, those circumstances would have to be very unusual and exceptional indeed.
¶ 22 Furthermore, those "unusual and exceptional circumstances" would have to be circumstances that did not manipulate or circumvent the Post-Conviction Remedies Act (PCRA), now codified in Utah Code sections 78B-9-101 to -110. The PCRA allows "a person who has been convicted and sentenced for a criminal offense [to] file an action in the district court ... for postconviction relief to vacate or modify the conviction or sentence."
¶ 23 In 2008, the legislature amended the PCRA to prohibit claims of ineffective assistance of postconviction counsel in a capital case: "Nothing in this chapter shall be construed as creating the right to the effective assistance of post-conviction counsel, and relief may not be granted on any claim that post-conviction counsel was ineffective."
¶ 24 Because the PCRA allows postconviction petitions only under circumstances defined by statute, we foresee that 60(b) motions might be brought in an attempt to evade the PCRA. This is not permitted by law.
¶ 25 Mr. Kell's motion provides us with the first opportunity to explore the tension between rule 60(b) and the PCRA. By "tension," we mean the activity at the intersection of two conflicting legal principles. The PCRA and rule 60(b) can be in direct conflict. Where that occurs, the PCRA prevails. On the other hand, the PCRA does not fully extinguish the relevance of rule 60(b). The task of courts is to discriminate in a principled way between postconviction uses of rule 60(b) that are legitimate and those that are forbidden. Other jurisdictions have developed rules of discernment and we draw on their analysis for guidance. The federal system, for example, has a similar, but not identical, problem. The federal equivalent to the PCRA is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. § 2244(b). Like the PCRA, the AEDPA prohibits a petitioner from raising a claim in a "second or successive habeas corpus application" if that claim was previously raised.
¶ 26 The United States Supreme Court described the intersection of the AEDPA and federal rule 60(b) this way:
¶ 27 However, the court drew a sharp distinction between the above examples, "when a Rule 60(b) motion attacks ... some defect in the integrity of the federal habeas proceedings,"
¶ 28 We agree with this reasoning. Although we have established in this case that the mere fact that an appellate court has affirmed an underlying district court decision does not per se bar a 60(b) motion, rule 60(b) may not circumvent conflicting statutory mandates if a statute occupies the field that would otherwise be controlled by rule 60(b). Thus, the rule might be an appropriate avenue when the motion does not attempt to achieve relief that the PCRA would bar. But when a 60(b) motion acts as a substitute for a prohibited postconviction petition, we cannot allow its use.
¶ 29 In this case, Mr. Kell argues that his 60(b) motion was proper — not a substitute for a second postconviction petition — because counsel's inadequate representation undermined the "integrity" of the entire proceeding. Although Mr. Kell filled many pages with arguments allegedly overlooked by his lawyers, his entire 60(b) motion was brought under one overarching theory: that his postconviction counsel rendered such ineffective assistance as to make his effort to have a fair evaluation of his claims of error meaningless. He frames his argument not as an ineffective assistance of counsel claim, but as an attempt to regain his postconviction process entirely. He contends that he "did not ask to supplement his amended petition with one, two, or even twenty claims which his appointed counsel had previously overlooked. Instead, he asked the district court to `set aside the entire course of [PCRA counsel's] prior representation, appoint me qualified and adequately-funded counsel to assist me, and provide me the opportunity to properly develop my case.'"
¶ 30 Stated differently, Mr. Kell contends that there are varying degrees of ineffectiveness, and that very ineffective assistance satisfies the "extraordinary circumstances" standard of rule 60(b). Following this reasoning, a defendant who received moderately ineffective assistance would be barred by the PCRA from challenging the proceedings, but a defendant who received grossly ineffective assistance would be allowed to do so under rule 60(b). This would present the district court with an unusual factual inquiry: When is a lawyer's assistance just generically ineffective and when is it egregiously ineffective? This is an unworkable and unnecessary test. We are unconvinced that the two-part test established in Strickland v. Washington
¶ 31 We therefore are unpersuaded by Mr. Kell's assertion that, while some claims of ineffective assistance are appropriately raised under the PCRA, claims of especially gross or egregious ineffectiveness may be raised under rule 60(b). And because Mr. Kell's entire 60(b) motion is barred by the PCRA's prohibition against subsequent postconviction petitions, we conclude that it may not be brought under rule 60(b). We therefore affirm the district court's conclusion that Mr. Kell's motion was improper under rule 60(b), but do so on the alternate grounds set forth in this opinion.
¶ 32 Next, Mr. Kell contends that the district court erred when it determined that, because he was not entitled to file his rule 60(b) motion, he was also not entitled to counsel to assist him with filing his 60(b) motion. He argues that he had a "statutory and possibly constitutional right to the appointment of counsel to represent him in his post-conviction matter," including the 60(b) motion.
¶ 33 He relies on Menzies v. Galetka, in which we determined that Mr. Menzies, in bringing his rule 60(b) motion, "ha[d] a statutory right to the effective assistance of counsel" under the PCRA.
¶ 34 But Mr. Menzies' statutory right to counsel to assist him with his 60(b) motion was not squarely at issue in that case. Instead, we focused on his statutory right to counsel — and whether counsel was effective-in his postconviction petition.
¶ 35 Here, Mr. Kell requested counsel to assist him with a 60(b) motion, not with a postconviction petition. The PCRA's statutory grant of appointed counsel does not apply. We affirm the district court's conclusion that Mr. Kell is not statutorily entitled to counsel to assist him with his 60(b) motion.
¶ 36 Mr. Kell also suggests that he has a "possibly constitutional" right to counsel. He cites article I, section 12 of the Utah Constitution but develops the point no further. This argument was not preserved in the district court, however, and "the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that `exceptional circumstances' exist or `plain error' occurred."
¶ 37 Rule 60(b) does not have a "pending" requirement and is not necessarily inappropriate in all cases in which this court has already ruled. Rule 60(b) might have application in cases even where we have already affirmed the district court's underlying decision, though those circumstances will be particularly extraordinary and we will be particularly
¶ 38 We also affirm the district court's conclusion that Mr. Kell did not have a statutory right to the assistance of counsel in preparing his 60(b) motion. We decline to address his "possibly constitutional" argument because it was not preserved.
Associate Chief Justice NEHRING authored the opinion of the Court, in which Chief Justice DURRANT, Justice DURHAM, Justice PARRISH, and Justice LEE joined.