William H. Smith, Petitioner-Appellee/cross-Appellant v. Carl S. Anderson, Warden, Respondent-Appellant/cross-Appellee

concurring in part and dissenting in part.

I agree with the majority’s ultimate decision to vacate the stay of execution and to deny the certificate of appealability. However, I write separately because I would not rely on the majority’s jurisdictional basis to vacate the stay. I also disagree with the majority’s decision to expand the record on appeal to include the affidavit of the Warden’s expert.

I

The state relies on Abdur’Rahman v. Bell, 392 F.3d 174 (6th Cir.2004), to show that Smith’s motion should be treated as a second or successive habeas petition, and not as a Rule 60(b) motion. It…