Zagorski v. Mays

• Decision Date: 29 October 2018
• Docket Number: No. 18-6052,18-6052
• Citation: 907 F.3d 901
• Parties: Edmund ZAGORSKI, Petitioner-Appellant, v. Tony MAYS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

907 F.3d 901

Edmund ZAGORSKI, Petitioner-Appellant,

v.Tony MAYS, Warden, Respondent-Appellee.

No. 18-6052

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 29, 2018

COUNSEL ON BRIEF: Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE, Nashville, Tennessee, for Appellee.

Before: COLE, Chief Judge; COOK and GRIFFIN, Circuit Judges.

COOK, J., delivered the opinion of the court in which GRIFFIN, J., joined. COLE, C.J. (pp. 908–12), delivered a separate dissenting opinion.

COOK, Circuit Judge.

Edmund Zagorski, a Tennessee capital prisoner, appeals from the district court's denial of relief from judgment under Federal Rule of Civil Procedure 60(b), asserting that his impending execution, an intervening Supreme Court decision, and the merits of three procedurally defaulted constitutional claims mandate equitable relief. Giving due deference to the district court's discretion in balancing the equities, we AFFIRM.

I.

Like most capital cases, this case presents a tangled procedural history. In 1984, a Tennessee jury convicted Edmund Zagorski of two first-degree murders and sentenced him to death. The Tennessee Supreme Court affirmed both the convictions and sentence on direct appeal. State v. Zagorski , 701 S.W.2d 808, 810 (Tenn. 1985).

After state courts denied all post-conviction relief, Zagorski petitioned a federal court for a writ of habeas corpus. Among numerous other claims, Zagorski alleged that his trial counsel was ineffective for failing to investigate an alternative suspect, that the trial court erred by improperly instructing the jury on the meaning of mitigating circumstances, and that the jury could not constitutionally impose the death penalty because prosecutors originally offered a plea deal for two life sentences. Finding all three arguments procedurally defaulted, the district court denied habeas relief, we affirmed, and the Supreme Court denied certiorari. See Zagorski v. Bell , 326 F. App'x 336 (6th Cir. 2009), cert. denied , 559 U.S. 1068, 130 S.Ct. 2094, 176 L.Ed.2d 723 (2010).

In 2012, the Supreme Court decided Martinez v. Ryan , permitting ineffective assistance of counsel at initial-review collateral proceedings to establish cause for a prisoner's procedural default of an ineffective assistance claim at trial. 566 U.S. 1, 9, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ; see also Trevino v. Thaler , 569 U.S. 413, 417, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Zagorski returned to district court and moved for postjudgment relief under Federal Rule of Civil Procedure 60(b)(6). He alleged that a combination of Martinez and Edwards v. Carpenter , 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), excused his procedural defaults, permitting him to litigate the merits of his underlying substantive claims. The district court denied all relief, but nonetheless granted a certificate of appealability. Certificate in hand, Zagorski appealed.

This court scheduled briefing, but with the date of his execution looming, Zagorski moved for a stay to permit full consideration of the merits of his Rule 60(b)(6) appeal. His concurrent requests for the stay in district and appellate court yielded contrary results: the district court denied Zagorski's motion, and a divided panel of this court granted it. Ultimately, the Supreme Court vacated our stay. Mays v. Zagorski , No. 18A385, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2018 WL 4934191 (U.S. Oct. 11, 2018). A timely-issued reprieve from execution, however, provides this court the opportunity to take up the merits.

II.

The "catchall" provision in Rule 60(b)(6) vests courts with a deep reservoir of equitable power to vacate judgments "to achieve substantial justice" in the most "unusual and extreme situations." Stokes v. Williams , 475 F.3d 732, 735 (6th Cir. 2007). And with great power comes great responsibility; in deciding these motions, a district court must "intensively balance numerous factors, including the competing policies of the finality of judgments and the incessant command of the court's conscience that justice be done in the light of all the facts." McGuire v. Warden , 738 F.3d 741, 750 (6th Cir. 2013) (citation omitted). Out of deference to this highly fact-bound process, this court asks not whether we think that Zagorski presented extraordinary circumstances warranting relief, but rather whether the district court abused its discretion in deciding that he did not. See Tyler v. Anderson , 749 F.3d 499, 509 (6th Cir. 2014).

III.

Zagorski submits that the district court incorrectly denied his Rule 60(b)(6) motion because it failed to consider the merits of three claims originally raised in his habeas petition: (1) his trial counsel ineffectively failed to fully investigate other suspects; (2) the trial court incorrectly instructed the jury on the meaning of mitigating circumstances in violation of Lockett v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ; and (3) his capital sentence violated United States v. Jackson , 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), because the prosecution originally offered two life sentences in exchange for pleas of guilty to each murder before trial. Although the district court found all three claims procedurally defaulted on habeas review, Zagorski now argues that a combination of Martinez and Edwards overcomes all defaults. He also maintains that because this capital case involves "significant and substantial" constitutional claims that a court has never reviewed, the balance of the equities demands Rule 60(b)(6) relief. As did the district court, we evaluate each argument in turn.

A. Claims Raised on Habeas Review

Although the district court denied habeas relief on Zagorski's ineffective assistance of trial counsel claim, he contends that Martinez resuscitates it. In Martinez , the Supreme Court delineated a very narrow exception to the Coleman rule prohibiting a habeas petitioner from demonstrating cause for a procedural default by claiming ineffective assistance of trial counsel during state post-conviction proceedings. Martinez , 566 U.S. at 8, 132 S.Ct. 1309 ; Coleman v. Thompson , 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But Martinez did not change a criminal defendant's constitutional rights; it merely adjusted the equitable rules as to when he might avail himself of federal statutory relief. Wright v. Warden , 793 F.3d 670, 672 (6th Cir. 2015). And like most of our sister circuits, we have determined that changes in decisional law alone do not establish grounds for Rule 60(b)(6) relief. Abdur’Rahman v. Carpenter , 805 F.3d 710, 714 (6th Cir. 2015) ; see also Miller v. Mays , 879 F.3d 691, 698–99 (6th Cir. 2018). A petitioner must present something more than just the availability of statutory relief from which he was previously barred. Recognizing this, the district court rightly discounted this factor.

The district court also denied relief for Zagorski's procedurally defaulted Lockett and Jackson claims. In his Rule 60(b) motion, Zagorski took a new tack, arguing ineffective assistance because his trial counsel failed to object to both the jury instructions and the imposition of death. But these brand new ineffective assistance of counsel claims—presented for the very first time in this motion—are themselves procedurally defaulted. See Hodges v. Colson , 727 F.3d 517, 530 (6th Cir. 2013). To excuse this default, Zagorski points to Edwards , which "require[s] a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim." 529 U.S. at 451, 120 S.Ct. 1587. Thus, Zagorski argues, Edwards supports his contention that, under Martinez , the ineffective assistance of post-conviction counsel establishes the cause and prejudice to excuse the newly raised and procedurally defaulted ineffective assistance of trial counsel claims, which in turn overcomes the procedural bar to the original Lockett and Jackson claims that Zagorski raised in his habeas petition.

As the district court recognized, permitting a two-layer showing of cause to excuse the default of a substantive constitutional claim would detonate Coleman 's procedural default bar. 501 U.S. at 732, 111 S.Ct. 2546. Coleman ensures state courts the first opportunity to correct any constitutional violations stemming from their own mistakes. See id. at 730–32, 111 S.Ct. 2546. Zagorski's reading flouts the very principle of federalism that the Supreme Court took pains to protect, and would permit habeas petitioners to resurrect procedurally defaulted claims in a motion for Rule 60(b)(6) relief by newly invoking the phrase: "post-conviction counsel ineffectively failed to raise an ineffective assistance of trial counsel claim." We cannot read Martinez as the exception that swallows this rule. "If Coleman 's revetment is to be torn down, it is not for us to do it. Rather, we must follow the case which directly controls" and leave the Supreme Court to overrule its own decisions. Hunton v. Sinclair , 732 F.3d 1124, 1127 (9th Cir. 2013) (quotation omitted).

But even if we credited this expansive reading of Martinez and Edwards , we cannot address a habeas claim disguised as a motion for Rule 60(b) relief. The Supreme Court instructs us to construe a Rule 60(b) motion as a successive habeas petition if it "seeks to add a new ground for relief." Gonzalez v. Crosby , 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ; see also Moreland v. Robinson , 813 F.3d 315, 322–23 (6th Cir. 2016) ("A movant is not making a habeas claim when he seeks only to lift the procedural bars that prevented adjudication of certain claims on the merits. But he is making a habeas claim when he seeks to add a new ground for relief or seeks to present ‘new evidence in support of a claim already litigated.’ " (quoting Gon...