Moreland v. Robinson
| Decision Date | 11 February 2016 |
| Docket Number | No. 15–3306.,15–3306. |
| Citation | 813 F.3d 315 |
| Parties | Samuel MORELAND, Petitioner–Appellant, v. Norm ROBINSON, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED:Jacob A. Cairns, Office of the Federal Public Defender, Columbus, Ohio, for Appellant. Katherine E. Mullin, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF:Jacob A. Cairns, Office of the Federal Public Defender, Columbus, Ohio, for Appellant. Katherine E. Mullin, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee.
Before BOGGS, ROGERS, and GRIFFIN, Circuit Judges.
ROGERS
, Circuit Judge.
In 1986, a three-judge panel convicted Samuel Moreland of killing his girlfriend Glenna Green, her adult daughter, and three of her grandchildren, and then sentenced him to death. In 2005, Moreland filed a federal habeas petition, which the district court denied and dismissed with prejudice. In 2012, while Moreland's appeal of that court's denial of his habeas petition was pending, Moreland filed two motions: a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)
and a motion to amend the already-denied 2005 petition under Federal Rule of Civil Procedure 15. In these motions, Moreland sought to raise claims about his waiver of his right to a jury trial, and his trial counsel's failure to use certain police reports and to obtain an expert to challenge the State's blood evidence.
Moreland's motions are second or successive habeas petitions that the district court lacked jurisdiction to consider. Rather than denying Moreland's motions, the district court should have transferred them to this court to review as requests for permission to be filed. Considered as requests for such permission, Moreland's requests do not meet the gatekeeping requirements for presenting claims in a second or successive habeas petition. Moreland therefore has not established a basis for relief from this court.
Our most recent opinion in this case sets forth most of the relevant facts. See Moreland v. Bradshaw, 699 F.3d 908 (6th Cir.2012)
. Here we describe only certain procedural facts relevant to this appeal.
In April 1986, after Moreland waived trial by jury, a three-judge panel found Moreland guilty of the aggravated murders of his girlfriend Glenna Green, her adult daughter Lana Green, and Glenna Green's three grandchildren Violana Green, Datwan Talbott, and Daytrin Talbott. Id. at 914–15
. The panel also held that Moreland was guilty of the attempted aggravated murders of Glenna Green's grandchildren Tia Green, Dayron Talbott, and Glenna Talbott. Id. at 915. The panel sentenced Moreland to prison and death. Id. He exhausted direct-appeal and state-post-conviction remedies. Id. at 916.
In 2005, Moreland filed a federal habeas corpus petition, which the district court denied and dismissed with prejudice. Moreland timely appealed on May 5, 2009. After briefing, this court heard oral argument on April 18, 2012.
On November 6 of that year—while the case was pending in this court and in the interim between oral argument and issuance of opinion—Moreland filed two motions in the district court: a Rule 60(b)
motion and a motion for leave to file an amended habeas petition.
Moreland's 2005 federal petition raised nine claims. His motion to amend that petition requested leave to (1) raise a new claim and (2) supplement with new evidence a claim already presented in that federal petition. The proposed new claim was that the failure to use certain police reports at trial violated Moreland's rights, either because the prosecutor withheld the evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
, or because trial counsel failed to use the evidence even though they had it, in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The claim to be supplemented—really, subclaim—was Subclaim 3(2): trial counsel provided ineffective assistance by failing to obtain a blood-analysis expert to challenge the State criminalist's analysis of the blood found on Moreland's pants.
motion sought to raise the same new claim presented in his motion to amend and to supplement Subclaim 3(2) with the same new evidence. The Rule 60(b) motion proceeded under the theory that, under the intervening Supreme Court decision in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), Moreland could raise these claims even though they would previously have been held defaulted. Martinez held that "[w]here, 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." 132 S.Ct. at 1320.
That same day, Moreland moved in this court to stay appellate proceedings and to remand his habeas case to the district court so that he could litigate the Rule 60(b)
motion. On November 15, 2012, this court affirmed the district court's denial of habeas relief. Moreland, 699 F.3d at 935. The same day, this court issued an order denying as moot the motion to stay proceedings. A copy of the latter order was filed in district court. On November 29, 2012, Moreland moved for rehearing and rehearing en banc.
Back in district court on December 13, 2012, the magistrate judge denied the motion to amend for lack of jurisdiction, but without prejudice to the motion's renewal once the mandate issued. Although the magistrate judge ruled directly on the motion to amend, he made only a recommendation on the motion for relief from judgment because that motion was "by definition post-judgment." Nonetheless, he recommended the same fate for the motion for relief from judgment: denial for lack of jurisdiction without prejudice to renewal once the mandate issued.
Six days later, on December 19, 2012, this court denied rehearing en banc. That same day, Moreland moved to stay the mandate pending his filing of a certiorari petition. Meanwhile, in district court, he filed no objections to the magistrate judge's recommendation that his Rule 60(b)
motion be denied without prejudice to renewal once the mandate issued.
On January 14, 2013, the district court adopted the magistrate judge's report and recommendation and denied Moreland's Rule 60(b)
motion. The next day, this court stayed the mandate pending Moreland's filing of a certiorari petition.
The Supreme Court denied Moreland's certiorari petition on October 7, 2013. Moreland v. Robinson, ––– U.S. ––––, 134 S.Ct. 110, 187 L.Ed.2d 81 (2013)
. The court of appeals mandate was issued two days later on October 9, 2013, and Sixth Circuit Case No. 09–3528 was closed.
On October 11, 2013, Moreland returned to district court and filed revised versions of his Rule 60(b)
motion and his motion to amend. Pursuant to a district-court order to digitize the record, Moreland later refiled the revised versions of these motions. Moreland's revised motions sought to raise the same new and supplemented claims that Moreland presented in his original motions. Moreland also sought to raise a new ineffective-assistance-of-trial-counsel claim in both of these motions. The new claim was that his trial counsel were ineffective when they had sodium pentothal administered to Moreland—allegedly involuntarily—shortly before his jury-waiver hearing, and when they allegedly allowed him to waive his jury-trial right while still under the influence of the drug. Further, in his revised Rule 60(b)
motion, Moreland also sought to supplement with new evidence another claim already presented in the original federal petition: Moreland's claim that he did not knowingly, intelligently, and voluntarily waive his right to trial by jury.
On September 2, 2014, the magistrate judge filed his report and recommendation. Moreland v. Robinson, No. 3:05–cv–334, 2014 WL 4351522 (S.D.Ohio Sept. 2, 2014)
. He recommended denying both the Rule 60(b) motion and the motion to amend because they actually constituted second or successive federal habeas corpus petitions, permission for which to file had not been obtained from this court. Id. at *2–5, *10. The magistrate judge, however, recommended granting a certificate of appealability. Id. at *10.
Two days later, this court issued Clark v. United States, 764 F.3d 653 (2014)
. In Clark, this court stated that "[a] motion to amend is not a second or successive [28 U.S.C.] § 2255 motion when it is filed before the adjudication of the initial § 2255 motion is complete—i.e., before the petitioner has lost on the merits and exhausted her appellate remedies." Clark, 764 F.3d at 658. The post-judgment motion in Clark was filed before the time to file an appeal from the habeas denial had expired. Id. at 659. Moreland filed objections to the magistrate judge's report and recommendations, contending that his motions were not second or successive habeas petitions under Clark. Rather than ruling on the objections, the district court recommitted the matter to the magistrate judge for a supplemental report.
The magistrate judge withdrew the earlier report and recommendation on Moreland's motions "in light of" Clark. Then he filed a new report and recommendation, in which he recommended holding that the motions, under Clark, were not second or successive petitions. Moreland v. Robinson, No. 3:05–cv–334, 2015 WL 127977, at *2–3 (S.D.Ohio Jan. 8, 2015)
. In concluding that the motions were not second or successive petitions, the magistrate judge appeared to accept Moreland's theory that "the judgment sought to be amended was not yet ‘final’ when he first moved for relief from it" because he originally filed his Rule 60(b) motion "while his appeal was pending." Id. at *3. Relying on this court's statement in Clark that "a party se...
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