ED CARNES, Chief Judge:
Florida prisoner Michael Griffin asks us to reconsider the single-judge order denying him a certificate of appealability (COA). He argues that jurists of reason could debate whether Federal Rule of Civil Procedure 60(b)(5) and 60(b)(6) permit him to challenge the district court's judgment denying his § 2254 petition by seeking a retroactive application of the Supreme Court's decisions in Trevino v. Thaler and Martinez v. Ryan. See Trevino, ___ U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013); Martinez, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
Insofar as the Rule 60(b)(6) part of the application is concerned, it is squarely foreclosed by our decision in Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir.2014). For that reason, no COA should issue on it. See Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1261 (11th Cir.2009) (holding that a COA should be denied where the claim "is foreclosed by a binding decision [of] this Court") (quotation marks omitted). The Rule 60(b)(5) part of the application is not already covered by binding precedent precisely on point, so we will discuss it. Griffm's contention is that the final clause in Rule 60(b)(5), which permits litigants to challenge "a final judgment [when] applying it prospectively is no longer equitable," permits him to use Martinez and Trevino to raise ineffective-assistance-of-counsel claims that in his previous federal habeas proceeding were denied based on procedural default.
Griffin shot and killed Officer Joseph Martin while attempting to evade the police after burglarizing a Florida hotel. Griffin v. State, 639 So.2d 966, 967 (Fla. 1994). He was convicted of first-degree murder, along with several other felonies,
Griffin then turned to federal court, filing a 28 U.S.C. § 2254 petition in October 2008. The district court denied his petition a year later. Griffin v. McNeil, 667 F.Supp.2d 1340, 1373 (S.D.Fla.2009). In its order, the court rejected five of Griffin's ineffective-assistance-of-counsel claims on the grounds that they were (1) procedurally barred and (2) meritless. See id. at 1357-62, 1366-67. Both the district court and this Court denied Griffin's motions for a COA, and the Supreme Court denied certiorari in May 2012. See Griffin v. Tucker, ___ U.S. ___, 132 S.Ct. 2440, 182 L.Ed.2d 1070 (2012).
Two years later, Griffin filed a motion in the district court under Federal Rule of Civil Procedure 60(b) seeking relief from the court's judgment denying his § 2254 petition. He argued that, based on the Supreme Court's recent decisions in Trevino and Martinez, he should be allowed to present four of his five ineffective-assistance-of-counsel claims that had been held to be procedurally barred when his federal habeas petition was denied in 2009. The district court denied the motion, reasoning that, among other things, Griffin's challenge could not be brought under Rule 60(b). Griffin then filed a motion under Federal Rule of Civil Procedure 59(e) asking the court to alter or amend its order denying Griffin's Rule 60(b) motion. The court denied that motion as well. Having failed to persuade the district court, Griffin filed a notice of appeal and requested a COA, but the district court declined to grant one.
Griffin thereafter filed a motion in this Court seeking a COA, which a single judge of this panel denied. Griffin responded by filing a motion requesting that the Court reconsider the denial of a COA and grant one on the following issue: "Whether Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) entitles Mr. Griffin to relief from the denial of his habeas petition under Federal Rule of Civil Procedure 60(b)(5) or 60(b)(6) such that the District Court should excuse Mr. Griffin's procedural default barring his ineffective-assistance-of-trial-counsel claim?" As we have already explained, the Rule 60(b)(6) part of the issue is squarely foreclosed by our decision in Arthur, 739 F.3d at 631. We turn now to whether a COA should be granted on the Rule 60(b)(5) part of it.
To appeal the denial of a Rule 60(b)(5) motion, a habeas petitioner must be granted a COA. See 28 U.S.C. § 2253(c)(1); Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir.2006). Where the issue involves both a procedural and a substantive component, a COA may not issue unless the petitioner makes the required showings: (1) "that he had a valid claim of the denial of a constitutional right," and (2) "that the procedural ruling is wrong."
Griffin relies on the last clause in Rule 60(b)(5), which states that "the court may relieve a party . . . from a final judgment" if "applying it prospectively is no longer equitable." Fed.R.Civ.P. 60(b)(5). None of the advisory committee notes define "prospectively," but the word means "[e]ffective or operative in the future." See Black's Law Dictionary 1417 (10th ed.2014). The plain meaning of "prospectively" in this context is reinforced by decisions of the Supreme Court and this Court.
The Supreme Court has made it clear that Rule 60(b)(5) applies in ordinary civil litigation where there is a judgment granting continuing prospective relief, such as an injunction, but not to the denial of federal habeas relief. In Agostini v. Felton, the Board of Education of the City of New York sought relief from a permanent injunction that was based on the Supreme Court's earlier interpretation of the Establishment Clause in Aguilar v. Felton. See Agostini, 521 U.S. 203, 208-09, 117 S.Ct. 1997, 2003, 138 L.Ed.2d 391 (1997) (citing Aguilar, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985)). The Agostini Court held that the Board was entitled to relief under Rule 60(b)(5) because later Establishment Clause decisions had effectively overruled Aguilar, making ongoing injunctive relief based on that decision inequitable. See Agostini, 521 U.S. at 237, 117 S.Ct. at 2017.
In its Agostini opinion, the Supreme Court limited its holding in the course of rejecting the argument that the decision would create "a deluge of Rule 60(b)(5) motions premised on nothing more than the claim that various judges or Justices have stated that the law has changed." Id. at 238, 117 S.Ct. at 2018. The Court explained that, because the last clause of Rule 60(b)(5) applies only to judgments with "prospective application," there would be:
Agostini, 521 U.S. at 239, 117 S.Ct. at 2018. The Court's citation of Teague was to contrast federal habeas with "ordinary civil litigation where the propriety of continuing prospective relief is at issue." Id. With federal habeas, the operative provision was not Rule 60(b)(5) but the retroactivity test announced in the Teague decision. That test, as the Court noted, is
The reason there was no need to worry about "a deluge of Rule 60(b)(5) motions" based on nothing more than a change in the law, the Court reasoned, is that the rule does not apply in most civil cases including, for example, federal habeas cases. Id. at 238-39, 117 S.Ct. at 2018. The reason it does not apply is that, unlike civil cases in which the judgment granted injunctive relief of some sort, there is no injunctive relief or continuing prospective effect within the meaning of Rule 60(b)(5) in federal habeas cases. In this way the Court sent a clear message in its Agostini opinion that Rule 60(b)(5) does not apply in federal habeas proceedings, at least the typical ones where the judgment is an unconditional denial of habeas relief with no injunctive relief.
The Supreme Court bolstered Agostini's interpretation of Rule 60(b)(5) in Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). The Court explained that the portion of Rule 60(b)(5) governing prospective judgments "may not be used to challenge the legal conclusions on which a prior judgment or order rests." Id. at 447, 129 S.Ct. at 2593. Which is precisely what Griffin seeks to do here: use Rule 60(b)(5) to challenge the district court's legal conclusion that his four ineffective-assistance-of-counsel claims are procedurally barred. Because reasonable jurists would not debate whether habeas petitioners may use Rule 60(b)(5) to do what the Supreme Court has forbidden, there is no question that it does not provide a vehicle here for Griffin to relitigate the denial of his § 2254 petition.
There is no later decision from the Supreme Court that could reasonably be read as undermining Agostini's teaching. Griffin cites the Supreme Court's statement in Frew ex rel. Frew v. Hawkins that Rule 60(b)(5) "encompasses the traditional power of a court of equity to modify its decree in light of changed circumstances." 540 U.S. 431, 441, 124 S.Ct. 899, 906, 157 L.Ed.2d 855 (2004). But he ignores the fact that Frew's reference to a "decree" is limited to consent decrees, a unique form of civil remedy that has "elements of both
While we have yet to address Rule 60(b)(5) in the context of § 2254 proceedings, binding decisions of this Court have defined the term "prospectively" in a way that forecloses any reasonable possibility that the rule could apply here. Our most comprehensive discussion of Rule 60(b)(5) comes from the decision in Cook v. Birmingham News, 618 F.2d 1149, 1151-53 (5th Cir.1980).
Cook means that Rule 60(b)(5) does not apply to decisions denying habeas relief because they do not "involve the supervision of changing conduct or conditions," they do not order either party to take any action, they do not include a retention of jurisdiction over the case, and "the need to achieve finality in litigation" is at its height in federal habeas proceedings. See id.; see also Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982) ("Federal habeas challenges to state convictions . . . entail greater finality problems and special comity concerns."); Gonzalez, 366 F.3d at 1269 ("The central
Other decisions of our Court have expounded Cook's interpretation of the word "prospectively" in Rule 60(b)(5). In Lee v. Talladega County Board of Education, 963 F.2d 1426, 1432-33 (11th Cir.1992), we held that the order at issue, which dissolved a previous injunction, did not operate "prospectively" for purposes of Rule 60(b)(5) because "[t]here was nothing for the court to implement after" it entered the order. The same is true of orders denying habeas relief. And in Gibbs v. Maxwell House, 738 F.2d 1153, 1155 (11th Cir.1984), we held that "[t]he judgment of dismissal in this case was not prospective within the meaning of 60(b)(5)" because "[i]t was final and permanent." We explained that the fact the "plaintiff remains bound by the dismissal is not a `prospective effect' within the meaning of rule 60(b)(5) any more than if [the] plaintiff were continuing to feel the effects of a money judgment against him." Id. at 1156. The same is true of judgments denying habeas relief.
Our precedent construing the "prospective" requirement for application of Rule 60(b)(5) is more law that places beyond reasonable debate the issue of whether that rule can be used by § 2254 petitioners to attack final district court judgments denying them habeas relief. When the district court entered its judgment denying Griffin's petition for a federal writ of habeas corpus, it did not include any features having prospective effect.
We note that our sister circuits have also interpreted Rule 60(b)(5) in a manner that forecloses any reasonable debate as to whether it can be used to challenge the denial of a § 2254 petition based on later Supreme Court decisions. The vast majority of them have adopted the D.C. Circuit's interpretation of "prospectively," which limits the relevant subsection of Rule 60(b)(5) to final judgments that are either: (1) "executory," in that they have not been fully executed; or (2) involve "the supervision of changing conduct or conditions." Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C.Cir. 1988) (quotation marks omitted); see In re Racing Servs., Inc., 571 F.3d 729, 733 (8th Cir.2009); Kalamazoo River Study Grp. v. Rockwell Int'l Corp., 355 F.3d 574, 587 (6th Cir.2004); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 630 (7th Cir.1997); Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995); DeWeerth v. Baldinger, 38 F.3d 1266,
The three circuits that have not yet adopted the Twelve John Does standard have nevertheless interpreted Rule 60(b)(5) in a manner that unquestionably forecloses Griffin's argument. Two of those three circuits follow the precedent of this Court that we discussed in the previous section. The Fifth Circuit follows its (and our predecessor court's) decision in Cook. See Picco v. Global Marine Drilling Co., 900 F.2d 846, 851 (5th Cir.1990) (citing Cook, 618 F.2d at 1151). And the Fourth Circuit has adopted our decision in Gibbs. See Schwartz v. United States, 976 F.2d 213, 218 (4th Cir.1992) (citing Gibbs, 738 F.2d at 1155-56). That means the Fifth and Fourth Circuits have adopted an interpretation of Rule 60(b)(5) under which the denial of habeas relief is not a prospective judgment subject to modification under Rule 60(b)(5). Finally, the Third Circuit has held that judgments that are "inherently final" cannot be "prospective" for purposes of Rule 60(b)(5). Marshall v. Bd. of Ed., 575 F.2d 417, 425 (3d Cir.1978) (quotation marks omitted); see Kock v. Gov't of Virgin Islands, 811 F.2d 240, 244-45 (3d Cir.1987) (explaining that "a final judgment having conclusive, res judicata effect" is not prospective under Rule 60(b)(5)). The district court's denial of Griffin's § 2254 petition was an inherently final judgment because, as we explained above, it brought habeas proceedings in the district court to a close.
In the face of this Court's and every other circuit's decisions interpreting Rule 60(b)(5), reasonable jurists could not find the district court's decision refusing to apply that rule wrong.
Griffin offers two arguments for why reasonable jurists could debate whether Rule 60(b)(5) allows a § 2254 petitioner to challenge a final judgment based on subsequent Supreme Court decisions. Neither has merit.
Griffin's first argument is that: "While the judgment remains in force, the underlying state court adjudication also remains in force, and so, too, does Mr. Griffin's death sentence. Mr. Griffin's continued imprisonment and pending death at the hands of the State is thus `prospective' under Rule 60(b)(5)." Motion to Reconsider at 17. But that reasoning conflates the federal habeas judgment with the state court judgment and the death sentence. As the D.C. Circuit explained in a non-habeas case:
Twelve John Does, 841 F.2d at 1138. And as we explained in Gibbs, the fact that a
This argument of Griffin's cannot be squared with the Supreme Court's opinion in Agostini. If he is right, every judgment denying a § 2254 petition by a state prisoner on death row is a "prospective" judgment under Rule 60(b)(5) and can be challenged whenever the Supreme Court issues a decision that changes, or might change, constitutional or habeas law. That result would eviscerate our binding precedent holding that Martinez (the Supreme Court decision that Griffin wants to apply retroactively) is not retroactively applicable. See, e.g., Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 945-46 (11th Cir.2014); Arthur, 739 F.3d at 633. It would also make it much easier for habeas petitioners to attack the denial of their § 2254 petitions using Supreme Court decisions issued after the judgment denying relief became final. After all, Rule 60(b)(5) requires only that the moving party demonstrate "a significant change . . . in law." Horne, 557 U.S. at 447, 129 S.Ct. at 2593 (quotation marks omitted). That is a much lower bar than what a § 2254 petitioner must meet in order to receive the retroactive application of a Supreme Court decision or to challenge a final judgment under Rule 60(b)(6). See, e.g., Schriro v. Summerlin, 542 U.S. 348, 351-53, 124 S.Ct. 2519, 2522-23, 159 L.Ed.2d 442 (2004) (explaining that few decisions should have retroactive effect under Teague); Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.1996) (explaining that Rule 60(b)(6) provides an "extraordinary remedy" that is limited to "extraordinary circumstances," and that "a `mere' change in the law" will not justify relief) (quotation marks omitted). And, once again, the Court in Agostini indicated that Rule 60(b)(5) does not permit federal habeas petitioners to use the rule as a means to circumvent the "more stringent standard for recognizing changes in the law . . . in federal habeas corpus proceedings." 521 U.S. at 239, 117 S.Ct. at 2018.
Griffin's second argument is that because two members of this Court have issued single-judge orders granting COAs on the issue of whether Rule 60(b)(5) permits retroactive application of Martinez and Trevino, we must agree that reasonable jurists would find the district court's decision debatable. Motion to Reconsider at 14-15 (citing Order, Jimenez v. Fla. Dep't of Corr., No. 14-13932 (11th Cir. Feb. 2, 2015); Order, Quintero v. Sec'y, Dep't of Corr., No. 13-15896 (11th Cir. Aug. 29, 2014)). We have, however, never held that the "reasonable jurists" standard under 28 U.S.C. § 2253(c) is a subjective one that turns on the view of a particular judge or judges. And we will not do so now.
Such a holding would conflict with how the Supreme Court has defined "reasonableness"
Griffin's any-one-is-enough rule for applying the reasonable-jurists standard for COAs misses the point that the two judges who issued those single-judge orders did not actually conclude that there was merit to his argument that Rule 60(b)(5) could be applied to reopen final judgments denying federal habeas relief. They instead concluded only that it was an issue about which reasonable jurists could disagree. That is the same question that is before us, and a single judge's expression of views in an order does not bind a panel of three judges. See 11th Cir. R. 27-1(d)(2) (providing that single judge's COA order is "subject to review by the court"); 11th Cir. R. 27-1(g) ("A ruling on a motion . . . by a single judge . . . is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it."); see also Boone v. Sec'y, Dep't of Corr., 377 F.3d 1315, 1317 (11th Cir.2004) (vacating the COA granted by the district court).
Even if we misconstrued the issuance of a COA on an issue to reflect a belief of the issuing judge that there actually is merit to the petitioner's position on that issue—something it does not reflect—the fact that one or two judges believed an issue has merit would not compel us to issue a COA when we believe it does not.
Griffin's contrary position, his any-one-is-enough rule, would have far-reaching implications and effectively make it impossible to deny a COA on any issue. Under his rule, we would not know that an issue is not reasonably debatable unless and until
And, of course, there are the other eleven geographic circuits with a total of approximately 1,200 district and court of appeals judges. Under Griffin's any-one-is-enough rule, if even one of those 1,200 judges believes that a COA should be granted on the issue, we would be required to grant a COA. The any-one-is-enough rule cannot be, and is not, the law.
Griffin's motion for reconsideration is