In re ABU -ALI ABDUR ’RAHMAN v. RICKY BELL , Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0410p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re ABU -ALI ABDUR ’RAHMAN ,
Movant.
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ABU -ALI ABDUR ’RAHMAN ,
Petitioner-Appellant,
v.
RICKY BELL , Warden,
Respondent-Appellee.
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Nos. 02-6547/6548
Filed: October 7, 2005
Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE,
COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and
GRIFFIN, Circuit Judges.
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ORDER
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On August 1, 2005, the United States Supreme Court vacated our prior judgment in this case,
In re Abdur’Rahman, 392 F.3d 174, 187 (6th Cir. 2004), and remanded the case for further
consideration in light of Gonzalez v. Crosby, 545 U.S. __, 125 S.Ct. 2641 (2005). Bell v.
Abdur’Rahman, __U.S.__, 125 S.Ct. 2991 (2005). The case is hereby returned to the panel to which
it was originally submitted for consideration as directed by the Supreme Court.
It is so ORDERED.
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Nos. 02-6547/6548 In re Abdur’Rahman Page 2
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DISSENT
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BOYCE F. MARTIN, JR., Circuit Judge, with whom Judges Daughtrey, Moore, Cole and
Clay join dissenting. On June 28, 2005, this Court’s opinion in In re Abdur’ Rahman v. Bell, 392
F.3d 174 (6th Cir. 2004), was vacated by the Supreme Court and remanded for further consideration
in light of Gonzalez v. Crosby, 125 S.Ct. 2641 (2005). Bell v. Abdur’ Rahman, 125 S.Ct. 2991
(2005). In the order today, a majority of this Court remands this case to the original panel instead
of remanding the case back to the district court. We respectfully dissent from this decision.
In Alley v. Bell, we unanimously held that the appropriate procedure for a case to consider
a new Rule 60(b) standard was to remand that case to the district court in order to determine whether
the case can be considered a proper Rule 60(b) motion. 405 F.3d 371 (6th Cir. 2005). In the present
case, the Court is asked to address the same situation, but comes to an opposite conclusion. Instead
of returning the case to the district court, as is this Court’s generally accepted practice for any
remand from the Supreme Court, the majority instead has chosen to bypass the creation of a new
factual record and proceed straight to the appeal process.
Additionally, this case should be remanded to the district court for the purpose of insuring
the record has the necessary evidence to follow the mandate of the Supreme Court and permit review
in light of Gonzalez. If, as it now stands, the original three-judge panel should hold that the
petitioner’s motion is properly viewed as a Rule 60(b) motion under Gonzalez v. Crosby, the district
court would remain in the best position to evaluate the equitable considerations peculiar to the
petitioner, 125 S.Ct. at 2651, 2653, and the case would still have to be returned to the district court.
Even if it turns out that the petitioner’s motion is not properly viewed as a Rule 60(b) motion under
Gonzalez v. Crosby, the panel is in no better position to make that decision than the district court.
Although not a point of dissent with the majority’s order, we must also raise a procedural
question with the composition of our en banc court in light of our two newest members. This case
was originally heard by an en banc panel on December 3, 2003. Since that date, we have welcomed
two new members to the Court, Judges McKeague and Griffin. These two new members were a
part of the en banc Court which voted on this order. It seems counter-intuitive that a case that has
already come before this Court as an en banc proceeding should have the composition of that court
altered during the appeals process because of these additions while the case was under consideration
by the Supreme Court. At this point, our statutes and rules of procedure leave this question
unanswered and, after this order, it remains so.
For the above reasons, we respectfully dissent from the order remanding this case to the
panel.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk

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