Abdur'Rahman v. Carpenter

• Decision Date: 04 November 2015
• Docket Number: No. 13–6126.,13–6126.
• Citation: 805 F.3d 710
• Parties: Abu–Ali ABDUR'RAHMAN, Petitioner–Appellant, v. Wayne CARPENTER, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

805 F.3d 710

Abu–Ali ABDUR'RAHMAN, Petitioner–Appellant

v.Wayne CARPENTER, Warden, Respondent–Appellee.

No. 13–6126.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: Nov. 4, 2015.

Rehearing En Banc Denied March 2, 2016.

ON BRIEF:Thomas C. Goldstein, Eric F. Citron, Goldstein & Russell, P.C., Washington, D.C., for Appellant. Andrew C. Coulam, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: COLE, Chief Judge; SILER and BATCHELDER, Circuit Judges.

SILER, J., delivered the opinion of the court in which BATCHELDER, J., joined, and COLE, C.J., joined in part. COLE, C.J. (pp. 717–24), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SILER, Circuit Judge.

Abu–Ali Abdur'Rahman (formerly known as James Lee Jones), a Tennessee death-row prisoner, appeals the district court's judgment denying his Fed.R.Civ.P. 60(b) motion for relief from the 1998 judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Abdur'Rahman has also filed a motion to remand. For the reasons stated below, we AFFIRM the district court's judgment and DENY the motion to remand.

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Abdur'Rahman was convicted of first-degree murder, assault with intent to commit first-degree murder, and armed robbery. He was sentenced to death for the murder charge and to life imprisonment for the other charges. The Tennessee Supreme Court affirmed the convictions and sentences. State v. Jones, 789 S.W.2d 545 (Tenn.1990). Abdur'Rahman petitioned for post-conviction relief in state court. He alleged, inter alia, ineffective assistance of counsel at sentencing and prosecutorial misconduct for failing to turn over exculpatory evidence. The trial and appellate courts denied him relief. See Jones v. State, No. 01C01–9402–CR–00079, 1995 WL 75427 (Tenn.Crim.App. Feb. 23, 1995). Abdur'Rahman filed his § 2254 petition in 1996. In 1998, the district court granted Abdur'Rahman relief on his claim that trial counsel performed ineffectively by failing to investigate and present mitigating evidence. Abdur'Rahman v. Bell, 999 F.Supp. 1073, 1091–1102 (M.D.Tenn.1998). This court vacated the district court's decision, concluding that Abdur'Rahman was not prejudiced by his counsel's performance at sentencing. Abdur'Rahman v. Bell, 226 F.3d 696, 708–09, 715 (6th Cir.2000).

Abdur'Rahman filed a Rule 60(b) motion in 2001. After procedural rulings by the district court, this court, and the Supreme Court, we granted Abdur'Rahman a certificate of appealability with respect to two claims: whether the prosecution violated Abdur'Rahman's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding his codefendant's pretrial statements, and whether the prosecution violated Brady by withholding a police report which indicated that Abdur'Rahman was mentally disturbed at the time of his arrest. We held that the prosecution did not violate Brady with respect to the codefendant's pretrial statements because Abdur'Rahman knew the content of the statements and knew that the codefendant had met with the prosecution before trial. Abdur'Rahman v. Colson, 649 F.3d 468, 474–75 (6th Cir.2011). Regarding Abdur'Rahman's behavior after he was arrested, we found that trial counsel knew something happened after his arrest, interviewed the police officer about what happened, and could have obtained a separate report on the incident. Therefore, the suppression of the report did not undermine our confidence in Abdur'Rahman's sentence. Id. at 475–76. Abdur'Rahman also argued that the two Brady claims certified for appeal should have been cumulated with prosecutorial misconduct or ineffective assistance of counsel claims from his habeas petition. We concluded that because Abdur'Rahman had failed to raise a cumulative error claim in state court he could not raise one for the first time in habeas. Id. at 473. Moreover, review of the cumulative error arguments was foreclosed because they were not certified for appeal. Id.

The subject of this appeal is the Rule 60(b) motion Abdur'Rahman filed in March 2013. He asked the district court to reopen claims he alleged had been found procedurally defaulted, arguing that in the wake of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), “the federal courts have no interest in enforcing a judgment now shown to be predicated on non-existent procedural defaults.” The district court directed Abdur'Rahman to state each claim for which he sought relief from judgment, cite where that claim appears in the Amended Petition, and cite where the district court dismissed the claim on procedural grounds. Abdur'Rahman responded by stating that he was presenting two claims: (1) cumulative error affecting his sentencing arising from prosecutorial misconduct and ineffective assistance of counsel; and (2) an improper jury instruction regarding accomplice testimony and trial counsel's and appellate counsel's failure to challenge the instruction. The district court concluded that Martinez and Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), did not apply to cases arising in Tennessee because Tennessee courts offer a meaningful opportunity to raise claims of ineffective assistance of trial counsel on direct appeal. However, the district court subsequently granted a certificate of appealability on “the issue of whether the Respondent's procedural defenses to certain claims are still viable in light of the Supreme Court's decisions in Martinez ... and Trevino. ”

After the district court issued its certificate of applicability, this court ruled that Martinez and Trevino are applicable to criminal convictions in Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 789 (6th Cir.2014). In response to that decision, Abdur'Rahman filed a motion for remand back to the district court. The motion was subsequently referred to this panel for consideration along with the merits.

STANDARD OF REVIEW

This court reviews the denial of a Rule 60(b) motion for an abuse of discretion.

See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 998, 187 L.Ed.2d 847 (2014). A movant seeking relief under Rule 60(b)(6) must show “extraordinary circumstances” justifying the reopening of a final judgment, and such circumstances rarely occur in habeas cases. Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ; Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir.2009). “[I]t ‘is well established that a change in decisional law is usually not, by itself, an “extraordinary circumstance” meriting Rule 60(b)(6) relief.’ ” Henness v. Bagley, 766 F.3d 550, 557 (6th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1708, 191 L.Ed.2d 683 (2015) (quoting McGuire, 738 F.3d at 750 ; see also Stokes v. Williams, 475 F.3d 732, 735 (6th Cir.2007) ; Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001) ).

APPLICABLE LAW

In Martinez, the Supreme Court held that ineffective assistance or lack of collateral counsel may constitute cause to excuse the procedural default of an ineffective assistance of trial counsel claim. Martinez, 132 S.Ct. at 1320. “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. A substantial claim is one that has some merit and is debatable among jurists of reason. Id. at 1318–19 (citing Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ). Martinez only permits ineffective assistance of post-conviction counsel to excuse the default of ineffective assistance of trial counsel claims, and does not extend to “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Martinez, 132 S.Ct. at 1320. Moreover, Martinez does not apply to excuse the default of a claim of ineffective assistance of appellate counsel. Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.2013), cert. denied, ––– U.S. ––––, 135 S.Ct. 1545, 191 L.Ed.2d 642 (2015).

Trevino applied the Martinez exception to Texas “where ... state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” 133 S.Ct. at 1921. Because Martinez and Trevino apply in Tennessee, “ineffective assistance of post-conviction counsel can establish cause to excuse a Tennessee defendant's procedural default of a substantial claim of ineffective assistance at trial.” Sutton, 745 F.3d at 795–96 (citing Martinez, 132 S.Ct. at 1320 ). Tennessee's procedural law makes it almost impossible for a defendant to present an ineffective assistance of trial counsel claim on direct appeal, and Tennessee courts have directed defendants to raise such claims on collateral review. Id. at 792–93.

DISCUSSION

In light of our decision in Sutton, it is clear that the district court erred when it ruled that Martinez and Trevino did not apply to a case arising in Tennessee. However, the issue certified for appeal was whether Martinez and Trevino had an impact on the specific claims raised by Abdur'Rahman, and we may affirm a district court's ruling on any ground supported by the record. United States v. Phillips, 752 F.3d 1047, 1049 (6th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 464, 190 L.Ed.2d 348 (2014).

Although Martinez applies to cases arising in Tennessee, it does not apply to the claims in Abdur'Rahman's motion. The first claim is not one of ineffective assistance of...