Date: 01-16-2018

Case Style:

Case Number: 14-6445

Judge: Julia Smith Gibbons

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Tennessee (Knox County)

Plaintiff's Attorney: Jennfer Lynn Smith

Defendant's Attorney: Stephen M. Kissinger

Description: 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-counsel (IATC) claim in light of Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013), Miller now appeals the district court’s denial
of his motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). For the
reasons that follow, we affirm the decision of the district court.
I.
A.
We previously reviewed the facts underlying Miller’s conviction in Miller v. Colson,
694 F.3d 691 (6th Cir. 2012). As relevant here, Lee Standifer was murdered in Knoxville,
Tennessee, on May 20, 1981. Id. at 693. She was stabbed with a large knife and a fireplace
poker, bound with a rope, and dragged into a wooded area. Id. The evidence at trial established
that Miller and Standifer had been on a date that night. Id. At some point, they returned to the
home of Benjamin Thomas, where Miller was staying. Id. When Thomas returned home, he
found Miller cleaning the basement floor, found streaks of blood inside the house, and later
found Standifer’s body in his backyard along with a blood-stained t-shirt belonging to Miller. Id.
Miller was arrested and, after waiving his Miranda rights, admitted to hitting Standifer with his
fist and dragging her outside. Id.
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.1. 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
No. 14-6445 Miller v. Mays Page 3
competency to stand trial. Id. The court instructed Gee to determine both Miller’s mental state
at the time of Standifer’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 believe 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
impermissibly 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 Ake v. Oklahoma, 470 U.S. 68 (1985). Miller, 694 F.3d at 694–95.
The trial court denied the motion without explanation and a second jury sentenced Miller to
death. Id. The Tennessee Supreme Court affirmed. Id. Miller’s request for state postconviction
relief was also denied. Miller v. State, 54 S.W.3d 743 (Tenn. 2001).
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, 694 F.3d at 701. We considered only whether denying state funds for an independent
mental-health expert during the guilt phase of Miller’s trial violated Ake v. Oklahoma and
No. 14-6445 Miller v. Mays Page 4
whether the jury instructions at trial were proper. Id. at 696–701. Finding no error, we affirmed.
Id at 701.1
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,
566 U.S. at 1, Trevino, 569 U.S. at 413, and Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013),
because he had presented a substantial claim of ineffective assistance of trial counsel, because
post-conviction counsel was ineffective for failing to raise this claim, and because the balance of
equities favored a federal merits-based review of his claim.
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, 738 F.3d 741, 750 (6th Cir. 2013),
established that Martinez and Trevino, alone, do not constitute extraordinary circumstances for
the purposes of Rule 60(b)(6). The court noted that Martinez and Trevino did not change the
constitutional rights of criminal defendants but rather impacted access to federal statutory relief.
The district court then considered whether other equitable factors, on balance, 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
1We note, at the outset, that the Supreme Court’s recent decision in McWilliams v. Dunn, 137 S. Ct. 1790
(2017), held that Ake clearly established a defendant’s right to an independent expert. Although this may be relevant
to Miller’s habeas claim regarding the denial of state funds for an independent health expert during the guilt phase
of his trial, it does not impact our decision here that the district court properly denied Miller’s request for Rule
60(b)(6) relief as to his IATC claim.
No. 14-6445 Miller v. Mays Page 5
2013. Considering these factors together, the district court concluded that Rule 60(b)(6) relief
was inappropriate.
Alternatively, the court held that 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 in Rule 60(b). West v. Carpenter, 790 F.3d
693, 696–97 (6th Cir. 2015) (citing McGuire, 738 F.3d at 750). Rule 60(b)(6) applies only in
“exceptional or extraordinary circumstances where principles of equity mandate relief,” id., but
such circumstances “rarely occur” in the habeas context. Sheppard v. Robinson, 807 F.3d 815,
820 (6th Cir. 2015) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).
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, 790 F.3d at 697 (quoting McGuire, 738 F.3d at 750). These factors can
include “the risk of injustice to the parties” as well as “the risk of undermining the public’s
confidence in the judicial process.” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (citation omitted).
We review the denial of a Rule 60(b) motion for an abuse of discretion. West, 790 F.3d
at 697. In the Rule 60(b)(6) context, this discretion is “especially broad due to the underlying
equitable principles involved.” Id. (citing Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014)).
No. 14-6445 Miller v. Mays Page 6
III.
As a general rule, there is no constitutional right to an attorney in state post-conviction
proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Consequently, a petitioner
generally cannot claim ineffective assistance of post-conviction counsel during federal habeas
review to excuse the procedural default of claims not raised in state court. Id. The Supreme
Court, however, carved out a “narrow exception” to this rule, allowing a prisoner to show cause
to excuse an otherwise-defaulted IATC claim. Martinez, 566 U.S. at 9. To qualify for this
exception, a petitioner must present a substantial IATC claim, show that state law required him
to bring the IATC claim during an initial-review post-conviction proceeding, and show that he
received either no assistance or ineffective assistance during that initial state post-conviction
proceeding. Id. at 14. Trevino expanded this exception to situations where there was no
meaningful opportunity to present the IATC claim on direct appeal. 569 U.S. at 413.
Although we initially suggested that Martinez did not apply in Tennessee, see Hodges v.
Colson, 711 F.3d 589, 612 (6th Cir. 2013), amended by 727 F.3d 517 (6th Cir. 2013), we have
since recognized that Martinez and Trevino apply in the state, see Sutton v. Carpenter, 745 F.3d
787, 795 (6th Cir. 2014). The applicability of this exception, however, does not necessarily
result in the availability of Rule 60(b)(6) relief. We have consistently held that Martinez and
Trevino, as intervening decisions, do not alone “sufficiently change[] the balance of the factors
for consideration under Rule 60(b)(6) to warrant relief.” Henness v. Bagley, 766 F.3d 550, 557
(6th Cir. 2014); see also Abdur’Rahman v. Carpenter, 805 F.3d 710, 714 (6th Cir. 2015); Wright
v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670, 672 (6th Cir. 2015). This is because
we do not interpret Martinez and Trevino as “a change in the constitutional rights of criminal
defendants, but rather [as] an adjustment of an equitable ruling . . . as to when federal statutory
relief is available.” McGuire, 738 F.3d at 750–51. Such a change in decisional law “is usually
not, by itself, an extraordinary circumstance meriting Rule 60(b)(6) relief.” Id. at 750 (quoting
Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007) (internal quotation marks and citation
omitted)). The district court thus correctly recognized that Martinez and Trevino are not enough
and proceeded to consider Miller’s other arguments in equity. We will do the same.
No. 14-6445 Miller v. Mays Page 7
IV.
Miller maintains that, in addition to Martinez and Trevino, he has shown 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.2 As we discuss
below, the district court did not abuse its discretion in weighing these equitable interests and
concluding that Miller’s equitable arguments failed to show extraordinary circumstances
warranting Rule 60(b)(6) relief.
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, 749 F.3d at 510. We evaluate
reasonableness by considering a petitioner’s diligence in seeking relief. See Sheppard, 807 F.3d
at 821; Wright, 793 F.3d at 672. In situations similar to Miller’s, we examine the time between
the date of the decision constituting a change in the law and the date that the Rule 60(b)(6)
motion was filed. See Gonzalez, 545 U.S. at 536–37 (finding an eight-month delay was not
diligent); Wright, 793 F.3d at 672 (noting that a Rule 60(b) motion was diligently filed when
done within twelve months of Martinez). We also look to whether the petitioner raised the issue
in his petition for rehearing or for Supreme Court review. See Sheppard, 807 F.3d at 821
(finding a petitioner was not diligent when Martinez could have been, but was not, raised in a
certiorari petition); see also Gonzalez, 545 U.S. at 537 (finding a petitioner was not diligent
when he did not raise the issue in either his rehearing or certiorari petition).
2The 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
any 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.
No. 14-6445 Miller v. Mays Page 8
The Supreme Court decided Martinez on March 20, 2012. 566 U.S. at 1. At that point,
we had heard argument on Miller’s § 2254 petition but had yet to issue a decision. See Miller,
694 F.3d at 691. Miller did not bring Martinez to our attention prior to our decision on
September 13, 2012, nor did he raise the issue in his petition for rehearing. Id. And when Miller
sought Supreme Court review of his § 2254 petition on March 21, 2013, he made no argument
with respect to Martinez. On March 26, 2013, we decided Hodges v. Colson, which suggested
that Martinez did not apply in Tennessee. 711 F.3d at 612. On May 28, 2013, the Supreme
Court decided Trevino, which expanded the Martinez exception. Trevino, 569 U.S. at 413. That
same day, the Court denied Miller’s petition for a writ of certiorari, making the dismissal of his
§ 2254 petition final. On August 14, 2013, we amended Hodges such that it no longer decided
the question of Martinez’s applicability to Tennessee prisoners.3 Compare Hodges, 711 F.3d at
612, with Hodges, 727 F.3d at 540. Miller filed his Rule 60(b)(6) motion on September 20,
2013.
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, 566 U.S. 901 (2012) (Mem.), where a similarly situated prisoner had argued
for Martinez relief in his certiorari petition, to suggest that Miller could have done the same.
Additionally, the district court looked to the Supreme Court’s decision in Ryan v. Schad,
570 U.S. 521, n.2 (2013) (per curiam), which it interpreted to disapprove of a four-month delay
in seeking to vacate a judgment under Martinez.
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, and 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
3We did not explicitly determine that Martinez and Trevino applied in Tennessee until March 19, 2014,
when we decided Sutton, 745 F.3d at 792.
No. 14-6445 Miller v. Mays Page 9
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, 545 U.S. at 537, and the twelve-month
delay that we accepted as diligent in Wright, 793 F.3d at 672. Furthermore, Miller failed to raise
Martinez in his certiorari petition, a fact we previously found dispositive on the question of
diligence. Sheppard, 807 F.3d at 821. On these facts, we cannot say that Miller was diligent in
pursuing relief under Martinez.
B.
There is no question that Tennessee has an interest in the finality of its judgments.
Wright, 793 F.3d at 672. And even in cases involving the death penalty, we must afford
“profound respect” to the finality interests stemming from our prior decision denying habeas
relief. Sheppard, 807 F.3d at 821 (citing Calderon v. Thompson, 523 U.S. 538, 556 (1998)).
However, we still must balance these interests against the Supreme Court’s admonition that
“[c]onventional notions of finality . . . have no place where life or liberty is at stake and
infringement of constitutional rights is alleged,” Sanders v. United States, 373 U.S. 1, 8 (1963);
see also Wright, 793 F.3d at 673; Thompson v. Bell, 580 F.3d 423, 444 (6th Cir. 2009), and our
recognition that finality interests must be considered in concert with the “more irreversible
finality of [Miller’s] execution.” Wright, 793 F.3d at 673 (quoting Thompson, 580 F.3d at 444).
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,
674 S.W.2d 279, 280 (Tenn. 1984). His conviction and sentence were reviewed on direct appeal
by the Tennessee Supreme Court, which affirmed his conviction but remanded his case for
resentencing. Id. at 284. After he was again sentenced to death, the Tennessee Supreme Court
No. 14-6445 Miller v. Mays Page 10
affirmed and the United States Supreme Court denied his petition for a writ of certiorari. State
v. Miller, 771 S.W.2d 401 (Tenn. 1989), cert. denied, 497 U.S. 1031 (1990). Miller also had the
opportunity to seek state post-conviction relief. See Miller v. State, No. 03C01-9805-CR-00188,
1999 WL 1046415 (Tenn. Crim. App. Nov. 19, 1999). The Tennessee Supreme Court denied his
request for post-conviction relief and the U.S. Supreme Court again declined to grant his
certiorari petition. Miller v. State, 54 S.W.3d 743 (Tenn. 2001), cert. denied, 536 U.S. 927
(2002). Miller then raised twenty-five claims for relief on federal habeas review, the dismissal
of which we affirmed on appeal. See Miller, 694 F.3d at 693. Again, in May 2013, the Supreme
Court declined to review Miller’s case when it denied his petition for a writ of certiorari on the
§ 2254 petition. See Miller v. Colson, 569 U.S. 1007 (2013) (Mem.).
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, 807 F.3d at 821. Because neither of Miller’s
proposed interests overcomes the state and judicial interests in finality and because those finality
interests are strengthened given the extended history of this case, we agree with the district court
that the balance of these interests does not favor Rule 60(b)(6) relief in this case.
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, 137 S. Ct. at 775–80, our decision in Wright,
No. 14-6445 Miller v. Mays Page 11
793 F.3d at 673, and a recent Third Circuit decision, Cox v. Horn, 757 F.3d 113, 124–25 (3d Cir.
2014).
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, 137 S. Ct. at 775. When the Court
considered whether the petitioner had established extraordinary circumstances under Rule
60(b)(6), it looked to only three factors: (1) that Buck “may have been sentenced to death in part
because of his race,” which would have punished him on the basis of an immutable
characteristic; (2) that the state had conceded error and had consented to resentencing in
similarly situated cases; and (3) that the state had a competing finality interest. Id. at 777–79.
Contrary to Miller’s argument on appeal, the Buck Court did not consider the merits of the
ineffective-assistance claim for the purposes of Rule 60(b)(6), nor did it assign greater weight to
the change in the law because of the substantiality of that claim. Instead, it was focused on the
injection of race into the sentencing determination, the state’s actions in similar cases, and
notions of finality.
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, 793 F.3d at 673. In that case, we credited the petitioner for being diligent in
pursuing relief, but held that his diligence was outweighed by state and judicial interests in the
finality of judgments. Id. at 672–73. We also noted that the weakness of the underlying
ineffective-assistance claim was “important” in finding that the equities weighed against
reopening the case. Id. at 673. Similarly, the Third Circuit has said it was “appropriate” to
consider the merits of the underlying claim because “[a] court need not provide a remedy under
60(b)(6) for claims of dubious merit that only weakly establish ineffective assistance . . . .” Cox,
757 F.3d at 124–25.
No. 14-6445 Miller v. Mays Page 12
Because Rule 60(b)(6) determinations are fact-specific and require “a case-by-case
inquiry,” West, 790 F.3d at 697 (citation omitted), we cannot say that we must, as a matter of
course, consider the merits of Miller’s IATC claim simply because it was appropriate to do so in
Wright and Cox. However, we will assume it is appropriate in this case and proceed to evaluate
Miller’s IATC claim for the purpose of considering whether it changes the balance of equities
with respect to his Rule 60(b)(6) motion.
2.
In his habeas petition, Miller argued that Olive was constitutionally ineffective at
resentencing for “fail[ing] 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 resentencing 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 resentencing 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.
No. 14-6445 Miller v. Mays Page 13
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, 559 F.3d 398, 405
(6th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
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, 466 U.S. at 689. However, the “failure
to reasonably investigate the defendant’s background and present mitigating evidence to the jury
at sentencing can constitute ineffective assistance of counsel.” Goodwin v. Johnson, 632 F.3d
301, 318 (6th Cir. 2011) (citing Wiggins v. Smith, 539 U.S. 510, 521–22 (2003)). In making this
determination, we focus “on whether the investigation supporting counsel’s decision not to
introduce mitigating evidence . . . was itself reasonable.” Clark v. Mitchell, 425 F.3d 270, 284
(6th Cir. 2005) (citation omitted). This turns on both “the quantum of evidence known to
counsel . . . as well as whether that evidence should have led a reasonable attorney to investigate
further.” Id. Choices “made after less than a complete investigation are reasonable precisely to
the extent that a reasonable professional judgment supported the limitations on the
investigation.” Goodwin, 632 F.3d at 318–19 (quoting Wiggins, 539 U.S. at 528). Such choices
include whether to present expert testimony at the penalty phase. See Jackson v. Bradshaw,
681 F.3d 753, 771 (6th Cir. 2012); see also Hartman v. Bagley, 492 F.3d 347, 360 (6th Cir.
2007) (“[C]ounsel might quite reasonably have made a strategic decision to present [an expert’s
report as to] mitigation findings through the more sympathetic lens of family members’
testimony.”).
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
No. 14-6445 Miller v. Mays Page 14
head trauma, hearing voices, and experiencing 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 resentencing:
The capacity of the defendant to appreciate the wrongfulness of his conduct or to
conform his conduct to 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
resentencing. See Goodwin, 632 F.3d at 318. Had Olive consulted with an expert, or even
requested the opportunity to do so, and then declined to present expert testimony, we would be
much more likely to say that such a decision was objectively reasonable. Indeed, our past
decisions suggest that establishing deficiency is considerably more difficult when counsel has
made an informed decision regarding mitigation after consulting with experts. See Landrum v.
Mitchell, 625 F.3d 905, 931–32 (6th Cir. 2010) (counsel was not deficient when, after
completing a thorough investigation and obtaining a court-appointed expert, he made the
“strategic decision not to present [the expert’s] underdeveloped testimony”); Hartman, 492 F.3d
at 359–60 (counsel was reasonable in declining to present expert testimony after consulting with
4Although 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.
No. 14-6445 Miller v. Mays Page 15
a forensic psychologist and deciding to present the psychologist’s findings “through the more
sympathetic lens” of the defendant’s family members); Broom v. Mitchell, 441 F.3d 392, 410
(6th Cir. 2006) (counsel was not objectively unreasonable because he had “attempted to obtain
psychological testimony as well as the services of a mitigation expert” as part of a broader
investigation); Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir. 2001) (counsel’s failure to detect
defendant’s mental disorder was reasonable because he had relied on the evaluation of a
psychologist).
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 deathpenalty
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, 466 U.S. at 695. Prejudice from the deficient
investigation or presentation of mitigating evidence requires “new evidence” that “differ[s] in a
substantial way—in strength and subject matter—from the evidence actually presented at
sentencing.” Clark, 425 F.3d at 286 (quoting Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.
2005)). We then “reweigh the evidence in aggravation against the totality of available mitigating
evidence, both that adduced at trial and that adduced in post-conviction proceedings.” Goodwin,
632 F.3d at 327.
In order to find prejudice, we must assume that the expert called to testify would have
presented new evidence that favored mitigation. See Clark, 425 F.3d at 286. To do so, we start
with the evidence that Olive did present in his case for mitigation at resentencing. Olive
presented a theory of mitigation focused on Miller’s background. This included testimony from
Miller’s mother about the absence of Miller’s biological father, her struggle with alcoholism, and
the physical abuse Miller suffered at the hands of his stepfather—including a serious untreated
head injury. Olive also presented testimony that Miller had been seriously injured while he was
in foster care and that he had been subject to sexual abuse as a young adult. In its summation,
the state attempted to minimize the strength of testimony and argument as to how Miller’s age,
upbringing, and intoxication—from both alcohol and LSD—constituted sufficient factors to
preclude the death penalty. Finally, the jury was explicitly instructed to consider whether
No. 14-6445 Miller v. Mays Page 16
Miller’s capacity and impairment by way of mental disease, mental defect, or intoxication
substantially affected his judgment.
On federal habeas review, Miller presented declarations from three expert witnesses in
the areas of psychiatry, psychology, 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 neurocognitive 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 Decl., 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.5 Lisak Decl., App. 85.
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
resentencing. See Clark, 425 F.3d at 286–87. Olive “presented most of the same facts that the
post-conviction mitigation witnesses said should have been presented.” Landrum, 625 F.3d at
932–33 (finding that expert testimony drawing conclusions from a defendant’s troubled
upbringing did not “differ[] significantly both in strength and subject matter from the evidence
actually presented at sentencing”); see also Hartman, 492 F.3d at 360–61 (finding postconviction
expert testimony was not new when compared to mitigation evidence provided
5Although 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.
No. 14-6445 Miller v. Mays Page 17
exclusively from lay witnesses). Olive’s theory of mitigation encompassed Miller’s neglect and
abuse as a child, the possibility that he suffered a traumatic head injury, and his drug and alcohol
use around the time of Standifer’s murder. Although Olive used lay witnesses to do so, he
presented the same facts that now underlie the evidence Miller claims is new. Thus, we question
whether Miller can succeed in establishing the prejudice prong of his IATC claim.
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.
* * *
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 presented 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, 807 F.3d at 821. Thus, in light of the Supreme Court’s instruction that extraordinary
circumstances are rare in the habeas context, Gonzalez, 545 U.S. at 535, and the “especially
broad” discretion we must give to the district court in this context, West, 790 F.3d at 697, we
conclude that the district court did not abuse its discretion in finding that Miller failed to
establish extraordinary circumstances under Rule 60(b)(6). We therefore affirm the district
court’s denial of Miller’s request for Rule 60(b)(6) relief.6
V.
For the foregoing reasons, we affirm the denial of Miller’s Rule 60(b)(6) motion.
6If 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, 566 U.S. at 14; Trevino, 569 U.S. at 429. Because we conclude that the district court was
within its discretion in denying Miller Rule 60(b)(6) relief, we need not reach these questions.
No. 14-6445 Miller v. Mays Page 18
_________________
DISSENT
_________________
HELENE N. WHITE, Circuit Judge, dissenting. Because Miller’s case presents a “rare”
circumstance in which Rule 60(b)(6) relief is appropriate in a habeas proceeding, cf. Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005), I respectfully dissent.
Relief under Rule 60(b)(6) is available only in “exceptional or extraordinary
circumstances where principles of equity mandate relief.” West v. Carpenter, 790 F.3d 693,
696–97 (6th Cir. 2015) (citation omitted). As the majority observes, a “change in decisional law
is usually not, by itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief,” Stokes v.
Williams, 475 F.3d 732, 735 (6th Cir. 2007) (citation omitted), and this court has held that
Martinez/Trevino, by themselves, are not “extraordinary” in the Rule 60(b)(6) context, see
Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014). Further, determining whether a
circumstance presented in a 60(b)(6) motion is “exceptional or extraordinary” involves a “caseby-
case inquiry . . . [that] 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, 790 F.3d at 697 (citation omitted). Whether a
habeas petitioner presents “extraordinary” circumstances is determined partly in view of how
diligent he was in seeking Rule 60(b)(6) relief after a change in decisional law. See Gonzalez,
545 U.S. at 537; see also Fed. R. Civ. P. 60(c)(1) (a movant must file his motion “within a
reasonable time”).
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 7.
Eighteen months elapsed between the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1
No. 14-6445 Miller v. Mays Page 19
(2012) on March 20, 2012 and Miller’s filing of his 60(b)(6) motion on September 20, 2013.
Alternatively, the majority reasons that sixteen months elapsed between Martinez and the
60(b)(6) motion, deducting the two months between this court’s decision in Hodges v. Colson,
711 F.3d 589, 612 (6th Cir. Mar. 26, 2013) (which cast doubt on Martinez’s application in
Tennessee) and the Supreme Court’s decision in Trevino v. Thaler, 569 U.S. 413 (2013) (which
was decided on May 28, 2013 and extended Martinez’s equitable holding to states that make it
“virtually” impossible to bring an ineffective-assistance claim on direct appeal). Trevino,
569 U.S. at 417. It is this sixteen-month period that the majority “cannot excuse,” especially in
light of cases in which twelve and eight months between a change in law and the filing of a
60(b)(6) motion showed, respectively, diligence and a lack thereof. Maj. Op. at 9 (citing Wright
v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670, 672 (6th Cir. 2015) and Gonzalez,
545 U.S. at 537).
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). 793 F.3d at 672. Although
Wright may have been diligent in pressing his Martinez claim, as a Tennessee petitioner, that
claim was not available to him at that time. The Supreme Court drew a clear line in Martinez,
stating that it was recognizing only a “narrow exception” to the rule of Coleman v. Thompson,
501 U.S. 722 (1991), that ineffective assistance of post-conviction counsel is not cause to excuse
a procedural default. 566 U.S. at 9. This narrow exception applied only “where the State barred
the defendant from raising [ineffective-assistance] claims on direct appeal.” Id. at 17 (emphasis
added). Martinez did not apply nationwide, only to states that placed claims of ineffective
assistance outside the direct-appeal process. We observed in our first Hodges opinion that
“Tennessee’s system does not implicate the same concerns as those that triggered the rule in
Martinez because in Tennessee a collateral proceeding is not ‘the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial.’” 711 F.3d at 612 (quoting Martinez,
566 U.S. at 8).
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
No. 14-6445 Miller v. Mays Page 20
present” that claim. Trevino, 569 U.S. at 428. Indeed, despite Wright’s diligence in raising his
Martinez claim, if we had decided the merits and had only Martinez (and not Trevino) to follow,
we would have been bound to hold that Tennessee is not covered by Martinez. In other words,
absent the intervening decision Trevino, the diligence of the petitioner in Wright could not have
mattered because he would have had no applicable change in law to rely on. The same goes for
Miller. We cannot expect habeas petitioners to be diligent in bringing futile motions.
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 certiorari. 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 systemic operation, denies a meaningful opportunity to do so.” 569 U.S.
at 429. That was a holding applicable to Tennessee, as we implicitly recognized when we
amended Hodges to remove the suggestion that Martinez was inapplicable to Tennessee
convictions. 727 F.3d 517 (6th Cir. Aug. 14, 2013). Under the circumstances, Miller’s filing his
60(b)(6) motion just shy of four months after Trevino was diligent.
(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 9 (quoting Wright,
793 F.3d at 673). See Calderon v. Thompson, 523 U.S. 538, 556 (1998) (“A State’s interests in
finality are compelling when a federal court of appeals issues a mandate denying federal habeas
relief.”); but see Sanders v. United States, 373 U.S. 1, 8 (1963) (“Conventional notions of
finality of litigation have no place where life or liberty is at stake and infringement of
constitutional rights is alleged.”).
The majority emphasizes that Miller has had multiple opportunities, in state and federal
proceedings, to obtain review of his conviction and sentence; and although his ineffectiveassistance
claim has never been addressed on the merits, this is a consequence of his procedural
No. 14-6445 Miller v. Mays Page 21
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 showing 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” cannot be said to “overcome the [state’s] finality interests at stake,” Maj. Op. at 10, 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 13. 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, 466 U.S.
668, 695 (1984). This probability is sufficient to “undermine confidence in the outcome” of
Miller’s re-sentencing. Id. at 694.
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
No. 14-6445 Miller v. Mays Page 22
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 made him “particularly susceptible to impulsive and inappropriate behavior under periods
of emotional distress[,]” and that Miller’s substance abuse was likely an attempt at selfmedication.
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, 137 S. Ct. 1790, 1801 (2017).
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 abuse . . . .”. Lisak Decl. 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 15, 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, 625 F.3d 905 (6th Cir. 2010), for its
conclusion that Miller was not prejudiced because the mental-health experts supporting his
No. 14-6445 Miller v. Mays Page 23
federal habeas petition do not present evidence that “differs significantly both in strength and
subject matter from the evidence actually presented at sentencing.” Id. at 933. But Miller’s case
is far different from Landrum. In Landrum, we concluded that defense counsel was not
ineffective. Counsel obtained funds for a psychologist, had her examine Landrum, and made the
strategic decision not to present her testimony. Id. at 932. Here, defense counsel obtained no
expert mental-health assistance on the mitigation issue at all, and we have concluded that he was
ineffective. Further, the evidence of prejudice that Landrum observed was absent in that case is
present here. Cf. id. at 933 (“In Landrum’s case, nothing in the post-conviction record suggests
that his childhood was drastically different from what the jury heard or that he suffers from a
mental or physical condition that would explain or significantly mitigate his crimes.”). The
opinions of the post-conviction experts here do suggest that Miller’s mental and neurological
conditions would explain and significantly mitigate his crime.
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, 466 U.S. at 695.
***
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, 790 F.3d at 697 (citation omitted). I would reverse the district court’s denial of this relief.

Outcome: For the foregoing reasons, we affirm the denial of Miller’s Rule 60(b)(6) motion.

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