Lee Moore v. Betty Mitchell

848 F.3d 774, 2017 FED App. 0035P, 2017 WL 603849, 2017 U.S. App. LEXIS 2630
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 15, 2017
Docket15-3374
StatusPublished
Cited by12 cases

This text of 848 F.3d 774 (Lee Moore v. Betty Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee Moore v. Betty Mitchell, 848 F.3d 774, 2017 FED App. 0035P, 2017 WL 603849, 2017 U.S. App. LEXIS 2630 (6th Cir. 2017).

Opinions

BATCHELDER, J., delivered the opinion of the court in which GIBBONS, J., joined. MERRITT, J. (pp. 778-79), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Lee Moore, convicted of kidnapping, robbing, and murdering Melvin Olinger, appeals the district court judgment that denied his motion for relief from judgment filed pursuant to Federal Rule of Civil Procedure 60(b). He argues that the Supreme Court’s decision in Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and new evidence amount to extraordinary circumstances that justify relief under Rule 60(b)(6). But Trevino does not apply here. Trevino expanded the application of Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), only to cases in which a claim of ineffective assistance of trial counsel could not have been made meaningfully on direct appeal. But Moore brought a claim of ineffective assistance of trial counsel on direct appeal, and the Ohio Supreme Court adjudicated that claim on the merits. We therefore AFFIRM the decision of the district court.

I.

Moore was tried and convicted in 1994. The Ohio Court of Appeals affirmed his conviction and sentences in June 1996, and the Ohio Supreme Court affirmed in February 1998. State v. Moore, 81 Ohio St.3d 22, 689 N.E.2d 1 (1998). While his first appeal was pending, Moore filed a petition for post-conviction relief in the trial court. The trial court denied the petition, and the Ohio Court of Appeals affirmed that decision. State v. Moore, No. C-970353, 1998 WL 638353 (Ohio Ct. App. Sept. 18, 1998). The Ohio Supreme Court denied review in 1999. Moore applied to reopen his appeal under Ohio R. App. P. 26(B) in September 2000, claiming that his counsel in his first appeal had been ineffective. The Ohio Court of Appeals denied the application as untimely and on the basis of res judicata. The Ohio Supreme Court affirmed that decision, holding that Moore failed to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal. State v. Moore, 93 Ohio St.3d 649, 758 N.E.2d 1130, 1133 (2001).

Moore filed a petition for a writ of habe-as corpus in 2000, raising twenty-five claims. After a period of discovery, the district court expanded the record to include evidence developed in that discovery, and granted relief on Claim (2)(B) — that Moore had received ineffective assistance of counsel at sentencing — and on two claims alleging improper jury instructions in the penalty phase of his trial. We affirmed the district court’s judgment in part and vacated and remanded it in part, holding that Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), precluded the court from considering additional evidence that Moore had introduced in the district court in support of his claim of ineffective assistance of counsel at sentencing. Moore v. Mitchell, 708 F.3d 760, 784 (6th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 693, 187 L.Ed.2d 559 (2013). In that opinion, we [776]*776rejected Moore’s argument that Martinez required us to remand the case to the district court for factual development of his ineffective assistance of trial counsel claim. We held that Martinez applied “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding,” Martinez, 132 S.Ct. at 1320, and Moore had raised on direct appeal a claim of ineffective assistance of trial counsel. Moore, 708 F.3d at 785.

In January 2014, Moore filed a motion to set aside the judgment pursuant to Federal Rule of Civil Procedure 60(b), and amended the motion in March 2014. He argued that the Supreme Court’s 2013 decision in Trevino permitted him to use newly developed evidence of ineffective assistance of post-conviction counsel to establish cause and prejudice for his failure to present evidence to support his post-conviction claim of ineffective assistance of trial counsel.

The magistrate judge found that this court’s prior decision was the law of the case, that neither Trevino nor McGuire v. Warden, Chillicothe Correctional Institution, 738 F.3d 741 (6th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 998, 187 L.Ed.2d 847 (2014), changed that result, and that neither Trevino nor Martinez created an exception to the Pinholster limit on new evidence. The magistrate judge found.also that neither Martinez nor Trevino applied to this case because Moore did not procedurally default his claim of ineffective assistance of trial counsel. The district court adopted the magistrate judge’s findings and conclusions over Moore’s objections but granted a certificate of appealability.

II.

Federal Rule of Civil Procedure 60(b) provides grounds for relief from a final judgment for five particular reasons and “any other reason that justifies relief.” 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). “[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) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 135 S.Ct. 1708, 191 L.Ed.2d 683 (2015). We review for an abuse of discretion the denial of a Rule 60(b) motion. Coyer v. HSBC Mortg. Servs., Inc., 701 F.3d 1104, 1110 (6th Cir. 2012).

“Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). The law of the case doctrine “is not an inexorable command” but is “directed to a court’s common sense.” Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997) (internal quotations and citations omitted). “We previously have stated three reasons to reconsider a ruling: (1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority;' or (3) where a decision is clearly erroneous and would work a manifest injustice.” Id.

Moore argues that the district court abused its discretion by relying on the law of the case because Trevino

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Bluebook (online)
848 F.3d 774, 2017 FED App. 0035P, 2017 WL 603849, 2017 U.S. App. LEXIS 2630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-moore-v-betty-mitchell-ca6-2017.