Janie Cockrell, the Director of the Texas Department of Criminal Justice, Institutional Division, appeals the district court's grant of Jeffrey Hess' petition for a writ of habeas corpus. The district court had previously dismissed Hess' petition as time-barred, but granted relief from that judgment after Hess filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure. We are persuaded that Hess failed to demonstrate the requisite "extraordinary circumstances" to justify relief under Rule 60(b)(6), and we must vacate the able district court's grant of the writ.

* Jeffrey Hess was convicted of aggravated sexual assault of a child, his three-year-old daughter, in July 1994, after a guilty plea. He was sentenced to 15 years in prison. Hess filed his first petition for postconviction relief in state court in May 1996. It was denied as procedurally barred. The Texas Court of Criminal Appeals denied Hess' appeal without written order.

Hess then filed a 28 U.S.C. § 2254 petition in district court on April 24, 1997. The district court read our decision in United States v. Flores1 to require that the petition be dismissed as time-barred. The district court did not have the benefit of our later opinion in Flanagan v. Johnson,2 which held that petitions filed on April 24, 1997 are timely under Flores.3

In November 1999 (over two years after the dismissal of his first petition and over one year after this court's decision in Flanagan), after a second unsuccessful attempt at relief in state court, Hess filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(5), alleging he was entitled to relief because his first habeas petition had been timely. The district court adopted the recommendations of the magistrate that: (1) while relief was unavailable under 60(b)(5), it should be granted under Rule 60(b)(6) because Hess had shown the "extraordinary circumstances" required for such relief and (2) a writ of habeas corpus be granted on Hess' ineffective assistance claim.

Appellant first argues that the district court was without jurisdiction to entertain Hess' motion because it was, in fact, a second or successive habeas petition within the meaning of 28 U.S.C. § 2244.4 We have stated that Rule 60(b) motions seeking to amend or alter the judgment of a first habeas proceeding "should be construed as successive habeas petitions."5 Here, the parties dispute whether or not this circuit has completely closed the door on Rule 60(b) motions in habeas cases — in other words whether all such Rule 60(b) motions must be construed as successive petitions.6 While nothing on their face suggests that Rule 60(b) motions are to be seen as anything other than successive petitions, we need not decide here whether there are no circumstances under which they would not be because relief under Rule 60(b) is, in any event, unavailable to Hess.

* We review the district court's grant of relief under Rule 60(b) for abuse of discretion.7

Appellant argues that the district court abused its discretion by awarding relief based upon Rule 60(b)(6) when Hess' motion was in fact based upon Rule 60(b)(5).8 We stated in Bailey v. Ryan Stevedoring Co.9 that "the catch-all clause of Rule 60(b)(6) cannot be invoked when relief is sought under one of the other grounds enumerated in Rule 60."10 However, what was meant in Bailey was that the first five clauses of Rule 60(b) and the sixth are mutually exclusive, not that simply moving under Rule 60(b)(5) prevented the award of relief under Rule 60(b)(6) if the court ruled that relief was unavailable under (b)(5).11 This is confirmed by Bailey's citation to Transit Casualty Co. v. Security Trust Co.,12 where this court stated that "Rule 60(b)(1) and Rule 60(b)(6) are not pari passu and are mutually exclusive.... The reason for relief set forth in Rule 60(b)(1) cannot be the basis for relief under Rule 60(b)(6)."13 It is further evidenced by the treatment of Bailey in the district courts.14

Thus, it was not an abuse of discretion to construe petitioner's Rule 60(b)(5) motion as a Rule 60(b)(6) motion.

Rule 60(b)(6) provides that a court may act to relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment."15 It is a catch-all provision, meant to encompass circumstances not covered by Rule 60(b)'s other enumerated provisions.16 Rule 60(b)(6) motions "will be granted only if extraordinary circumstances are present."17

Under our precedents, changes in decisional law, such as our opinion in Flanagan, do not constitute the "extraordinary circumstances" required for granting Rule 60(b)(6) relief.18 Hess responds to this with two arguments. First he contends that Flanagan was not a change in decisional law, but a straightforward application of circuit precedent, and therefore his circumstances qualify as "extraordinary." Second he points to dicta in our decision in Batts v. Tow-Motor Forklift Co.19 rejecting the proposition that "a change in decisional law can never be an extraordinary circumstance," in part because "[c]ourts may find a special circumstance warranting relief where a change in the law affects a petition for habeas corpus, where notions of finality have no place."20

Hess' first argument runs afoul of the unfortunate (for him) fact that Rule 60(b)(6) motions are not substitutes for timely appeals. "[A] Rule 60(b) appeal may not be used as a substitute for the ordinary process of appeal ... particularly [] where, as here, a mistake of law is alleged to be the primary ground of the appeal."21 Hess has offered no explanation for his failure to appeal. Thus, either way Flanagan is characterized — as a change of decisional law or as an application of existing circuit precedent — Hess must lose, because if Flanagan is a change of decisional law he has not demonstrated extraordinary circumstances and if Flanagan is not a change in decisional law he has offered no excuse for his failure to appeal the initial denial of habeas relief.

Hess' second argument also fails. The dicta in Batts suggesting that the rule for changes in decisional law might be different in the habeas corpus context because finality is not a concern is now flatly contradicted by, among other things, AEDPA.22

We therefore conclude that the district court abused its discretion in granting relief under Rule 60(b)(6) because Hess did not demonstrate the requisite "extraordinary circumstances."23

Hess also argues that the district court could have granted relief under the independent action doctrine. The independent action doctrine gets its name from the portion of Rule 60(b) which states that the rule "does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding." "This is not an affirmative grant of power but merely allows continuation of whatever power the court would have had to entertain an independent action if the rule had not been adopted."24 While Hess did not raise this alternative argument below, we may consider it as long as the adverse party is not prejudiced.25

No relief is available under the independent action doctrine. The elements of an independent action are

(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law.26

Hess cannot satisfy these requirements — especially (3) and (4). There was no fraud alleged in this case, and this court has only awarded relief "on the ground of mistake... where mutual mistake is shown and where the party seeking relief is without fault or negligence in the premises."27 Hess was also negligent in failing to pursue his remedies on direct appeal.

For the foregoing reasons, the district court's grant of the writ of habeas corpus is VACATED. Hess' motions to dismiss his counsel, appoint substitute counsel, appear pro se, and for an out-of-time appeal are all DENIED; and Appellant's motion to supplement the record is DENIED AS MOOT.