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Moore v. Mitchell

United States Court of Appeals, Sixth Circuit

February 15, 2017

Lee E. Moore, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.

          Argued: April 27, 2016

         Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:00-cv-00023-Susan J. Dlott, District Judge.

          ARGUED: Laurence E. Komp, Manchester, Missouri, for Appellant.

          Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

          ON BRIEF: Laurence E. Komp, Manchester, Missouri, Michael J. O'Hara, O'HARA, RUBERG, TAYLOR, SLOAN & SERGENT, for Appellant.

          Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

          Before: MERRIT, BATCHELDER, and GIBBONS, Circuit Judges.

          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, 133 S.Ct. 1911 (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, 132 S.Ct. 1309 (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, 689 N.E.2d 1');">689 N.E.2d 1 (Ohio 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, 758 N.E.2d 1130, 1133 (Ohio 2001).

         Moore filed a petition for a writ of habeas 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 (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, 134 S.Ct. 693 (2013). In that opinion, we rejected 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, 134 S.Ct. 998 (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 ...


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