The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Petitioner Edward Jerome Harbison ("Harbison"), a Tennessee inmate under sentence of death, has filed a fee-paid petition for a writ of habeas corpus, pursuant to 28 U.S.C.§ 2241, et seq., or in the alternative, a motion for relief from judgment, under Fed. R. Civ. P. 60(b)(6) and Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 2648 and n.4 (2005) [Court File No. 135]; as well as a motion for a stay of his execution, now scheduled for February, 22, 2007 [Court File Nos. 146, 148]. Harbison, who is represented by counsel, has also filed an application to proceed in forma pauperis in connection with any additional fees or costs, which is supported by his financial affidavit and a copy of his inmate trust account statement [Court File Nos. 136, 137]. Based upon the financial data included in those documents, it appears Harbison lacks the wherewithal to pay any subsequent fees or costs of this litigation. Therefore, the application will be GRANTED.
In 1983, a jury in the Hamilton County, Tennessee Criminal Court convicted Harbison of second-degree burglary, grand larceny, and first degree murder and, upon a finding of one aggravating circumstance, sentenced him to death for the murder. After the Tennessee courts denied his appeal and several collateral attacks (including post-conviction, habeas corpus, and coram nobis petitions), Harbison brought a petition for a federal writ of habeas corpus, pursuant to 28 U.S.C.§ 2254. Subsequently, the Court dismissed it. Harbison v. Bell, Civil Action No. 1:97-cv-52 (E.D.Tenn. Mar. 6, 2001) (order denying petition). The decision was affirmed on appeal,and the petition for a writ of certiorari which followed was denied by the United States Supreme Court. Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005), cert. denied, 126 S.Ct. 1888 (2006). Following the entry of the Court's judgment denying his § 2254 application, he returned to the state courts to raise various claims, but did not receive relief. See Harbison v. State, No. E2004-00885-CCA-R28-PD, 2005 WL 1521910 (Tenn. Crim. App. June 27, 2005), permission to app. denied (Tenn. Dec. 19, 2005). Harbison now brings this instant pleading/Rule 60(b)motion, supported by various documents, including the record of those recent state court proceedings.*fn1
Respondent Warden has filed a response [Ct. File No. 140], citing to 28 U.S.C.§ 2244(b) and arguing this instant filing amounts to a "second or successive" petition, which must be transferred to the Court of Appeals. The Respondent also argues that, even if treated as a Rule 60(b) motion, the motion states no grounds upon which to grant relief.
Harbison has submitted a reply [Court File No. 143] and, not surprisingly, offers several counterarguments. First, he denies that his petition qualifies as a second or successive petition, reasoning that the two issues raised in this instant petition originated in the state coram nobis proceeding and, therefore, could not have been raised in his initial § 2254 petition. He takes the position that this petition, though numerically his second, does not qualify as a second or successive petition under 28 U.S.C.§ 2244(b).
His next suggestion is that, if indeed his petition is a second or successive one, it was filed within one year of the state court decision which furnished the factual predicate for his claims. His third argument is constructed in the alternative and rests on the ruling in Gonzalez. Harbision maintains he is entitled to Rule 60(b) relief because, just as the petitioner in Gonzalez, he is not asserting errors in his state convictions but instead, is challenging this Court's finding of procedural default-a ruling which prevented a merits review of his claims. The procedural-default ruling, according to Harbision, amounts to a defect in the integrity of the initial federal habeas proceeding because it was constructed on this Court's "erroneous fact findings and erroneous conclusions regarding state law; errors recently confirmed by the state court."
Since the Clerk chose to file Harbison's first submission in his previous habeas corpus case, Civil Action No. 1:97-cv-52 , the Court turns first to the alternative Rule 60(b) aspect of that filing.
A. Motion for Relief from Judgment
Rule 60(b) of the Federal Rule of Civil Procedure permits a party to ask a Court to relieve him from a judgment and reopen a case for certain enumerated reasons, among them mistake, inadvertence, surprise, fraud, and newly discovered evidence. The sixth subsection of Rule 60(b) - the catchall provision under which Harbison brings his motion - allows relief to be granted for "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6).
In Gonzalez, the case on which Harbison primarily relies,*fn2 the Supreme Court addressed the applicability of a Rule 60(b) motion to § 2254 habeas corpus proceedings, concluding that a Rule 60(b) motion was permitted in such a context and could be harmonized with AEDPA's restrictions on second and successive petitions. 125 S.Ct. at 2649-50. The Court explained that, if, after a denial of a habeas petition, a Rule 60 motion attempts to advance a substantive claim, then it is properly characterized as a second or successive petition. Presenting a claim not offered in the original petition because of mistake or excusable neglect; seeking to submit newly discovered evidence not contained in the original petition; and asking for relief predicated on an alleged modification of law since the petition was denied - all illustrate a second or successive petition packaged as a Rule 60(b) motion. By contrast, an authentic Rule 60(b) motion is one which assails "some defect in the integrity of the federal habeas proceedings" but does not challenge "the substance of the federal court's resolution of a claim on the merits." Id. at 2648. For example, an assertion of error with respect to a previous ruling, such as finding of procedural default, which precluded a merits determination, does not constitute an attack on the disposition of a claim on the merits and, therefore, is properly raised in a Rule 60(b) motion. Id. and n.4. Finally, success on a Rule 60(b) motion hinges on a showing of "extraordinary circumstances," though these circumstances rarely occur in the habeas context. Id. at 2649.
2. Characterizing the Instant Filing
In his motion, Harbison maintains the Court incorrectly ruled that certain claims raised in his original petition had never been presented to the state courts, could not then be presented, and, therefore, were procedurally barred. He asserts that, following the entry of the Court's judgment denying his § 2254 application, he returned to the state courts and exhausted the two claims now offered in his Rule 60(b) motion-one alleging the Chattanooga Police Department's records were not disclosed to the defense, in violation of the rule in Brady v. Maryland, and the other alleging the attorney who represented him in his motion for a new trial and on appeal had a conflict of interest in that counsel also represented a primary suspect in the murder before being appointed to represent Harbison. Harbison submits the state court decision shows the above rulings were defective and those defects undermine the integrity of the judgment.
Because "[a] motion that... challenges the District Court's failure to reach the merits does not warrant  treatment [as a successive habeas petition]," Gonzalez, 125 S.Ct. at 2651, the part of the motion attacking the Court's prior procedural default determinations, which prevented the Court from reaching the merits of the claims, is properly characterized as a Rule 60(b) motion. Therefore, it "can be ruled ...