Lead Opinion
GIBBONS, J., dеlivered the opinion of the court in which SILER, J., joined. WHITE, J. (pp. 706-10), delivered a separate dissenting opinion.
OPINION
David Miller was convicted and sentenced to death for the 1981 murder of Lee Standifer. His sentence was upheld by the Tennessee Supreme Court and we affirmed the dismissal of his § 2254 habeas petition. Seeking to revisit his ineffective-assistance-of-trial-eounsel (IATC) claim in light of Martinez v. Ryan,
I. •
A.
We previously reviewed the facts underlying Miller’s conviction in Miller, v. Colson,
On June 11, 1981, Miller was examined by Dr. George Gee, a psychiatrist at the Helen Ross McNabb Mental Health Center. Id. at 694 n.l. In a written evaluation, Gee described Miller as “sociopathic but certainly mentally competent to stand trial.” Id.
Miller was subsequently indicted for Standifer’s murder. Id. at 693. The trial court granted Miller’s motion for a second psychiatric examination in order to determine his competency to stand trial. Id. The court instructed Gee to determine both Miller’s mental state at the time of Standi-fer’s death and whether he was currently competent to stand trial. Id. at 693-94. After again examining Miller, Gee issued a letter stating that Miller’s affect and thought processes were normal and that he did not believе Miller was insane at the time of the offense. Id. at 694. Prior to trial, Miller requested that the trial court appoint a psychiatrist to assist in the preparation of his defense. Id. The court denied the motion, finding Miller was not entitled to a second expert. Id. Miller was convicted of first-degree murder and sentenced to death. Id.
Miller appealed his conviction and sentence, arguing, in part, that the trial court erred by refusing to provide him with an independent psychiatrist. Id. The Tennessee Supreme Court affirmed Miller’s conviction but remanded the case for resentencing because the State had im-permissibly introduced evidence of prior arrests during the sentencing phase. Id. On remand, Miller renewed his motion for a new trial, arguing that the trial court’s refusal to grant him the assistance of a psychiatric expert during the guilt phase violated his due-process rights in light of the then-recent decision in Alte v. Oklahoma,
B.
In May 2002, Miller filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising twenty-five grounds for relief. Miller’s thirteenth claim alleged that he had received ineffective assistance of counsel at resentencing because his attorneys failed to investigate mitigating evidence and failed to retain competent mental-health experts to diagnose Miller and explain how his mental disorders led to Standifer’s death. The district court found this claim procedurally defaulted because Miller had failed to raise it during state post-conviction proceedings and had not shown cause and prejudice to excuse the default. On appeal, we did not consider this IATC claim because there was not a certificate of appealability (COA) on the issue. See Miller,
C. .
In September 2013, Miller filed a motion for relief from judgment under Rule 60(b)(6). He argued that the procedural default of his IATC claim could now be excused under Martinez,
The district court denied Miller’s motion, finding that he had not shown sufficient extraordinary circumstances to merit relief. The district court first recognized that our decision in McGuire v. Warden, Chillicothe Correctional Institution,
The district court then considered whether other equitable factors, on bal-anee, favored Miller’s request for Rule 60(b)(6) relief. First, the district court recognized that although Miller had presented new evidence in the affidavit submitted by John Halstead, Miller’s post-conviction counsel, the affidavit of Mark Olive, Miller’s counsel at resentencing, was substantially similar , to the testimony Olive had previously presented in connection with Miller’s § 2254 petition. Second, the court held that policy considerations, including the finality of judgments, did not weigh in Miller’s favor. Third, the district court concluded that Miller had not been diligent in pursuing relief because he had not raised his Martinez claim for eighteen months— from the time Martinez was decided in March 2012 until Miller filed his Rule 60(b)(6) motion in September 2013. Considering these factors together, the district court concluded that Rule 60(b)(6) relief was inappropriatе.
Alternatively, the court held thát even if Rule 60(b)(6) relief was appropriate, Martinez and Trevino still did not excuse the default of Miller’s IATC claim because he had not put forward a “substantial claim” of ineffective assistance. The court noted that Olive, as trial counsel, was objectively reasonable in investigating and presenting Miller’s background despite the fact that he did not renew his request for funds to hire a psychological expert. It also held that Olive could not be blamed for failing to persuade a series of state courts to provide Miller an expert. The court did not reach the question of prejudice.
Miller was granted a COA as to whether, in light of Martinez and Trevino, he had demonstrated extraordinary circumstances meriting Rule 60(b)(6) relief. Miller now appeals.
II.
Federal Rule of Civil Procedure 60(b)(6) is a “catchall provision” providing relief from a final judgment for any reason not otherwise captured & Rule 60(b). West v. Carpenter,
Rule- 60(b)(6) motions necessitate “a case-by-case inquiry” in which the district court “intensively balance[s] 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 light of all the facts.” West,
We review the denial of a Rule 60(b) motion for an abuse of discretion. West,
' III.
As a general rule, there is no constitutional right to an attorney in state post-conviction, proceedings. Coleman v. Thompson,
Although ‘we initially suggested that Martinez did not apply in Tennessee, see Hodges v. Colson,
' IV.
Miller maintains that, in addition to Martinez and Trevino, he has shоwn extraordinary circumstances warranting Rule 60(b)(6) relief because (1) he was diligent in pursuing Rule 60(b)(6) relief; (2) he has a substantial life interest in avoiding the death penalty; (3) the finality interest is diminished here because his IATC claim has not yet been litigated on the merits in either state or federal court; and (4) he has presented a substantial IATC claim. The district court rejected these arguments, finding that Miller was not diligent, giving considerable weight to the finality of judgments, and holding that his IATC claim was not substantial.
A.
A Rule 60(b)(6) motion must be made “within a reasonable time.” Fed. R. Civ.- P. 60(c)(1). This is a fact-specific determination. Tyler,
The Supreme Court decided Martinez on March 20, 2012,
The district court held that Miller was not diligent because eighteen months had elapsed between the time Martinez was decided and his Rule 60(b)(6) motion. The district court looked to Smith v. Colson,
On appeal, Miller relies heavily on the argument that he was precluded from seeking relief under Martinez and-Trevino until our original decision in Hodges was amended in August 2014, аnd thus, he was diligent in pursuing relief because he filed his Rule 60(b)(6) motion within six weeks of Hodges being amended. We find this argument unpersuasive. First, it ignores the fact that Miller could have, but did not, challenge the procedural default of his IATC claim in the twelve months between the time Martinez was decided (March 2012) and the point at which we first decided Hodges (March 2013). Second, nothing prevented Miller from immediately seeking Rule 60(b)(6) relief after Trevino was decided—a case that necessarily called into question our initial decision in Hodges. Even if we accepted the proposition that Hodges initially provided a valid bar, we would not extend that bar past the point at which Trevino was decided in May 2013.
We cannot excuse Miller’s failure to challenge the procedural default of his IATC claim for more than sixteen months—the twelve months between Martinez and Hodges and the four months between Trevino and his Rule 60(b)(6) motion. Miller has gone beyond the eight-month delay that constituted a lack of diligence in Gonzalez,
B.
There is no question that Tennessee has an interest in the finality of its judgments. Wright,
The state and federal courts have provided Miller with considerable opportunities for review. Miller was tried, convicted, and sentenced to death in 1982. See State v. Miller,
Miller argues that despite this procedural history, he has not had an opportunity to litigate his IATC claim on the merits in the course of his federal habeas proceedings. It is difficult to dispute this point given that- the district court refused to consider his IATC claim on the grounds that it was procedurally defaulted. We refuse to accept, however, that this alone outweighs the finality interests at stake when Miller had the opportunity to challenge the procedural default of his IATC claim before his habeas judgment became final but failed to do so. Similarly, we cannot say that Miller’s interest in avoiding the death penalty is, by itself, enough to overcome the finality interests at stake. See Sheppard,
C.
Although the district court did consider the merits of Miller’s IATC claim in response to Miller’s pending motion, it is unclear whether the court was determining only that Miller had not presented a “substantial” IATC claim as required by Martinez, or whether it was evaluating the merits of Miller’s underlying claim as an equitable factor weighing for or against Rule 60(b)(6) relief. On appeal, Miller argues that the strength of his IATC claim is an equitable factor that we must consider in determining whether Rule 60(b)(6) relief is appropriate. In doing so, he relies on the Supreme Court’s recent decision in Buck,
1.
As an initial matter, we are hesitant -to agree that Buck, Wright, and Cox necessarily require us to consider the merits of Miller’s IATC claim. Although the Supreme Court, in deciding Buck, considered the merits of the petitioner’s ineffective-assistance-of-counsel claim, it did so because one issue before the Court was the substantive question as to whether the petitioner had received ineffective assistance. Buck,
Miller is correct that we have previously considered the merits of the underlying ineffective-assistance claim in .deciding whether a district court erred in denying Rule 60(b)(6) relief. See Wright,
Because Rule 60(b)(6) determinations are fact-specific and require “a case-by-case inquiry,” West,
2.
In his habeas petition, Miller argued that Olive was constitutionally ineffective at resentencing for “failing] to retain competent mental health professionals with the skill and knowledge to diagnose [Miller’s] mental disorders and/or disturbances ... or to explain how those disturbances led to ... Standifer’s death,” which left the re-sentencing .jury “uninformed ... regarding an important statutory mitigating factor” and without a “scientific explanation for [Miller’s] otherwise incomprehensible acts.” DE 18, Page ID 89; JA 22. In his Rule 60(b)(6) motion, Miller restates this claim more broadly as Olive’s “failure to present compelling evidence that Miller’s actions ... were directly attributable to his profound mental illness at the time of the offense and that his mental illness was directly attributable to the almost unspeakable physical and sexual trauma he suffered as a child, and/or organic brain damage.” DE 112, Page ID 486; CA6 R. 12, at 27-28. Miller now faults Olive for both failing to call an expert and failing to “fully” or “adequately investigate” Miller’s background and history of trauma. DE 112, Page ID 489, At oral argument, Miller clarified that this claim is grounded in Olive’s failure to request any expert assistance at resentencing. Miller argues that this was deficient performance because there was no strategic justification or excuse for Olive not to have pursued all reasonably available mitigating evidence. And that it was prejudicial because expert testimony would have allowed him to present a “far different story” to the resen-tencing jury that would have explained the “bizarre aspects” of the murder and resulted in at least one juror voting against the death penalty. CA6 R. 12, at 33.
3.
To demonstrate that his counsel was constitutionally ineffective, Miller must show that “(1) his counsel’s performance was deficient, that is, objectively unreasonable under prevailing professional norms, and (2) it prejudiced his defense.” Cornwell v. Bradshaw,
In considering the deficiency prong, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and attempt “to eliminate the distorting effects of hindsight.” Strickland,
We cannot excuse Olive’s failure to engage any expert in support of Miller’s case for mitigation, Olive does not claim, and the record does not indicate, that the court would have refused access to a neutral expert, such as Gee, for the purposes of resentencing. The record indicates that Olive had notice of how expert testimony could have helped Miller’s case at the penalty phase. His pre-trial investigation uncovered evidence of physical abuse, sexual abuse, abandonment, and neglect. He also learned of numerous instances of Miller suffering severe head trauma, hearing voices, and experienсing blackouts. Prior to resentencing, Olive obtained additional social-services and educational records providing further evidence that Miller had suffered physical and sexual abuse. This evidence suggested that Miller may have been suffering from a head injury, mental defect, or mental disease. But Olive chose not to consult with any expert to further investigate Miller’s condition or present testimony connecting Miller’s background and condition with Standifer’s murder, evidence that would have been consistent with the theory of mitigation Olive presented.
Instead, Olive presented Miller’s background, evidence of abuse, and the theory that Miller may have suffered an adolescent head injury through lay testimony. Olive framed this to the resentencing jury as a non-statutory mitigating factor. He also requested, and received, the following statutory mitigating instruction at resen-tencing:
The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct tо the requirements of the law was subsequently impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment.4
App. 109; Supp. App. 98. But Olive made these decisions without consulting—or even requesting to consult with—an expert to understand what testimony, if any, such an expert could provide or whether there was something more to investigate with respect to Miller’s mental health. This leads us to seriously question the reasonableness of Olive’s investigation at resen-tencing. See Goodwin,
Even if Olive’s performance was deficient, Miller must still show prejudice to succeed on his IATC claim. This presents a much more difficult hurdle for Miller. In the context of a death-penalty proceeding, the Supreme Court defines prejudice as “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland,
In order to find prejudice, we must assume that the expert called to testify would have presented new evidence that favored mitigation. See Clark,
On federal habeas review, Miller presented declarations from three expert witnesses in the areas of psychiatry, psyсhology, and neurology. Pablo Stewart, a clinical and forensic psychiatrist, expressed his opinion that Miller developed Posttraumatic Stress Disorder and severe depression as a result of his childhood and adolescence and that Miller suffered from auditory and visual hallucinations around the time of Standifer’s murder, as well as other “clear symptoms of psychosis and dissociation.” App. 53. Stewart concluded that Miller suffered from “multiple neurocogni-tive disorders.” App. 54. Thomas Hyde, a neurology expert, opined that Miller’s behavior was “consistent with developmental or acquired frontal lobe dysfunction” that could have been a result of traumatic head injury and would have impacted his ability to control his impulses and manage his anger. Hyde Deck, App. 61. David Lisak, a clinical psychologist, stated that Miller’s alcohol and drug use stemmed from his history of psychological trauma and physical abuse. Lisak also opined that Miller’s behavior during Standifer’s murder was consistent with “an outburst of unbridled rage and aggression” that could be associated with heavy alcohol and drug use.
Miller continues to cite these reports as the new evidence in support of his claim that Olive was constitutionally ineffective. Although we recognize that the conclusions offered by Miller’s post-conviction experts were not presented at resentencing, the reports are not evidence that is substantially different in strength and subject matter from what Olive presented at re-sentencing. See Clark,
Finally, even if we were to credit Miller’s evidence and assume that an expert would have presented similarly favorable testimony, we would still have to find that the evidence sufficiently changed the balance such that at least one juror would have voted against death. See Tenn. Code Ann. § 39-13-204(i). Because we have sufficient concerns with Miller’s ability to establish new evidence, we decline to engage in such balancing here.
⅜ ⅜ ‡
Given our uncertainty as to Miller’s ability to establish prejudice, we cannot agree that his IATC claim is “unquestionably meritorious.” Nor can we say that he has prеsented such a clear case of ineffective assistance that it overcomes the other relevant equitable factors weighing against Rule 60(b)(6) relief, especially Miller’s lack of diligence in raising his Martinez claim—a factor to which we have previously given considerable weight. See Sheppard,
V.
For the foregoing reasons, we affirm the denial of Miller’s Rule 60(b)(6) motion.
DISSENT
Notes
. We note, at the outset, that the Supreme Court’s recent decision in McWilliams v. Dunn, — U.S. -,
. The district court also considered whether the affidavits from both trial and post-conviction counsel presented new evidence related to his IATC claim. It concluded that the affidavit from trial counsel did not present ány new evidence and that the affidavit from post-conviction counsel, although new, addressed only the deficiencies in Miller's post-conviction representation and not the underlying IATC claim, For this reason, it does not appear that the district court considered the affidavits to weigh in favor of finding extraordinary circumstances. Because Miller. does not challenge this determination on appeal, we do not consider it here.
. We did not explicitly determine that Martinez and Trevino applied in Tennessеe until March 19, 2014, when we decided Sutton,
. Although the resentencing court agreed to the instruction, it did note that it was "difficult to see” evidence in the record to support such an instruction. App. 109.
. Although we adopt these conclusions here for the purposes of evaluating Miller’s claim of new evidence, we question whether a neutral, court-appointed expert would have reached such conclusions given Gee’s testimony at trial that Miller was neither insane nor incompetent.
. If Miller had shown extraordinary circumstances entitling him to Rule 60(b)(6) relief, he would still need to show that his underlying IATC claim was.a "substantial'' one and , that he had received ineffective assistance of counsel during'his initial post-conviction proceedings in order to show that he was eligible for consideration on the merits. See Martinez,
Dissenting Opinion
dissenting.
Because Miller’s case presents a “rare” circumstance in which Rule 60(b)(6) reliéf is appropriate in a habeas proceeding, cf. Gonzalez v. Crosby,
Relief under Rule 60(b)(6) is available only in “exceptional or extraordinary circumstances where principles of equity mandate relief.” West v. Carpenter,
I consider these same balancing factors but reach a different conclusion: that the equities weigh heavily in favor of Miller, and accordingly that- the district court abused its discretion in denying him relief under Rule 60(b)(6).
(1) Diligence
As the majority explains, we examine the time between the date of the decision constituting a change in law and the date the Rule 60(b)(6) motion was filed. Maj. Op. at 699. Eighteen months elapsed between the Supreme Court’s decision in Martinez v. Ryan,
We found the petitioner in Wright was diligent in filing his 60(b)(6) motion twelve months after Martinez was decided (but months before Trevino was).
It was not until Trevino was decided on May 28, 2013 that the narrow Martinez exception to Coleman was extended to cover states that allow a prisoner to raise a claim of ineffective assistance on direct appeal but do not provide defendants with a “meaningful opportunity to present” that claim. Trevino,
This is all to say that I disagree with the majority that Martinez’s date of decision is the proper point from which to measure whether Miller was diligent in filing his 60(b)(6) motion. Instead, the proper starting point is Trevino, decided the same day the Court denied Miller’s petition for cer-tiorari. Trevino extended Martinez to apply to “a State that in theory grants permission [to bring an ineffective-assistance claim on direct appeal] but, as a matter of procedural design and systеmic operation, denies a meaningful opportunity to do so.”
(2) Finality
I agree with the majority that Tennessee has a strong finality interest in its criminal judgment, and agree as well that this interest must be balanced against Miller’s interest in avoiding the “more irreversible finality of [his] execution.” Maj. Op. at 701 (quoting Wright,
The majority emphasizes that Miller has had multiple opportunities, in state and federal proceedings, to obtаin review of his conviction and sentence; and although his ineffective-assistance claim has never been addressed on the merits, this is a consequence of his procedural default of the issue. But not all defaulted claims are equal. It matters that counsel’s ineffectiveness goes to the heart of the jury’s decision to impose a death sentence, and, as I discuss below, that Miller’s claim is a substantial one.
At re-sentencing, the paramount defense objective was to avoid the imposition of the death penalty. Mitigating evidence show-mg that Miller suffered from mental illness, trauma, or organic brain damage was the most “significant factor” in arguing in favor of that objective, and expert mental-health assistance was needed to evaluate, prepare, and present it. The state’s interest in the finality of its judgments must be “tempered by its interest in the fair and accurate adjudication of criminal cases.” Cf. id. at 7-9. Here, if Miller’s “interest in avoiding the death penalty” cаnnot be said to “overcome the [state’s] finality interests at stake,” Maj. Op. at 701-02, it also cannot be said that the latter overcomes the former. The interests are at least in equipoise.
(3) Merits
I join the majority in assuming that consideration of the merits is appropriate, and, for the same reasons set out in the majority opinion, I agree that trial counsel Olive’s “failure to engage any expert in support of Miller’s case for mitigation” is inexcusable. Id. at 703. I respectfully disagree, however, with the conclusion that Olive’s ineffectiveness did not prejudice Miller. Had Olive obtained the assistance of a mental-health expert, whether neutral or independent, there was a “reasonable probability ... that the [jury] would have concluded that the balance of aggravating and mitigating factors did not warrant death.” Strickland v. Washington,
In finding a lack of prejudice, the majority asserts that the lay witnesses’ mitigation testimony at re-sentencing did not vary in a substantial way in strength and subject matter from the evidence Miller now offers in the form of declarations by Drs. Stewart, Hyde, and Lisak. I disagree.
The evidence given by lay witnesses was “troubled youth” testimony, including that Miller was neglected and physically abused by his parents. At most, these lay witnesses could support that Miller’s background drove him to substance abuse. The lay witnesses were not equipped to analyze Miller’s school, child protective services, medical, or penal records. Nor could the lay testimony address Miller’s psychological problems or organic brain damage.
In contrast, Dr. Hyde, a neurologist, examined Miller and found that he suffered from developmental or acquired frontal-lobe dysfunction, which can cause individuals to “have difficulty with impulse control, prioritization, judgment, reasoning, and anger management.” Hyde Decl. at 5. Dr. Hyde also noted that Miller had an extensive history of bipolar disorder, which madе him “particularly susceptible to impulsive and inappropriate behavior under periods of emotional distress[,]” and that Miller’s substance abuse was likely an attempt at self-medication. Id. at 5-6. As the three declarations Miller obtained for his federal habeas petition show, an expert could have explained to the jury how Miller’s traumatic childhood affected him psychologically and neurologically and influenced him to murder Standifer in a violent rage. The lay witnesses were of no help on this issue. The expert testimony is substantially different in strength and subject matter, and “[t]here is reason to think that” “access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.” McWilliams v. Dunn, — U.S. —,
Further, although Olive did argue that Miller was the victim of sexual abuse as a young adult at the hands of a clergyman, he completely failed to inform the re-sentencing jury about the prolonged sexual abuse Miller was subjected to by his own mother, which Dr. Lisak opined caused “rage that stemmed from the confluence of his step-father’s brutality, and his mother’s incestuous abuseLisak Deck at 27. Miller committed the sudden, brutal, murder of a female intimate partner. There is reason to think that the jury would have viewed this crime differently had Miller been examined by a competent expert who could explain that it was influenced by childhood abuse that left him with “untreated, profound levels of rage that he directed at women.” Id. Further, when Miller’s mother was cross examined about what the majority acknowledges was “a serious untreated head injury,” Maj. Op. at 705, she agreed with the government that Miller “didn’t receive any serious injuries from that episode.” Resentencing Tr. at 636. Expert testimony would have made the serious nature of the' injuries clear.
The majority finds support in Landrum v. Mitchell,
In sum, Miller’s post-conviction experts show the types of mitigating evidence that Olive could have uncovered had he sought the expert mental-health assistance— whether independent or neutral—that Miller was entitled to at his re-sentencing. Had the jury heard such evidence, there is a reasonable probability that it would have concluded that “the balance of aggravating and mitigating circumstances did not warrant death.” See Strickland,
* * *
Miller diligently brought, his Rule 60(b)(6) motion less than four months after Trevino was decided. Both Miller and the State of Tennessee have considerable finality interests—Miller in avoiding the judgment of a death sentence and the state in enforcing it. Miller raises a substantial ineffective-assistance claim that his trial counsel was ineffective for failing to seek any expert mental-health assistance at re-sentencing, and has shown that there is a reasonable probability that this failure prejudiced him. Together, these factors give rise to the “exceptional or extraordinary circumstances where principles of equity mandate relief’ under Rule 60(b)(6). West,