Edmund Zagorski v. Tony Mays , 907 F.3d 901 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0241p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EDMUND ZAGORSKI, ┐
Petitioner-Appellant, │
│
> No. 18-6052
v. │
│
│
TONY MAYS, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:99-cv-01193—Aleta Arthur Trauger, District Judge.
Decided and Filed: October 29, 2018
Before: COLE, Chief Judge; COOK and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL OF
TENNESSEE, Nashville, Tennessee, for Appellee.
COOK, J., delivered the opinion of the court in which GRIFFIN, J., joined. COLE, C.J.
(pp. 10–15), delivered a separate dissenting opinion.
_________________
OPINION
_________________
COOK, Circuit Judge. Edmund Zagorski, a Tennessee capital prisoner, appeals from the
district court’s denial of relief from judgment under Federal Rule of Civil Procedure 60(b),
asserting that his impending execution, an intervening Supreme Court decision, and the merits of
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three procedurally defaulted constitutional claims mandate equitable relief. Giving due
deference to the district court’s discretion in balancing the equities, we AFFIRM.
I.
Like most capital cases, this case presents a tangled procedural history. In 1984, a
Tennessee jury convicted Edmund Zagorski of two first-degree murders and sentenced him to
death. The Tennessee Supreme Court affirmed both the convictions and sentence on direct
appeal. State v. Zagorski, 701 S.W.2d 808, 810 (Tenn. 1985).
After state courts denied all post-conviction relief, Zagorski petitioned a federal court for
a writ of habeas corpus. Among numerous other claims, Zagorski alleged that his trial counsel
was ineffective for failing to investigate an alternative suspect, that the trial court erred by
improperly instructing the jury on the meaning of mitigating circumstances, and that the jury
could not constitutionally impose the death penalty because prosecutors originally offered a plea
deal for two life sentences. Finding all three arguments procedurally defaulted, the district court
denied habeas relief, we affirmed, and the Supreme Court denied certiorari. See Zagorski v. Bell,
326 F. App’x 336 (6th Cir. 2009), cert. denied, 559 U.S. 1068 (2010).
In 2012, the Supreme Court decided Martinez v. Ryan, permitting ineffective assistance
of counsel at initial-review collateral proceedings to establish cause for a prisoner’s procedural
default of an ineffective assistance claim at trial. 566 U.S. 1, 9 (2012); see also Trevino v.
Thaler, 569 U.S. 413, 417 (2013). Zagorski returned to district court and moved for post-
judgment relief under Federal Rule of Civil Procedure 60(b)(6). He alleged that a combination
of Martinez and Edwards v. Carpenter, 529 U.S. 446 (2000), excused his procedural defaults,
permitting him to litigate the merits of his underlying substantive claims. The district court
denied all relief, but nonetheless granted a certificate of appealability. Certificate in hand,
Zagorski appealed.
This court scheduled briefing, but with the date of his execution looming, Zagorski
moved for a stay to permit full consideration of the merits of his Rule 60(b)(6) appeal. His
concurrent requests for the stay in district and appellate court yielded contrary results: the district
court denied Zagorski’s motion, and a divided panel of this court granted it. Ultimately, the
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Supreme Court vacated our stay. Mays v. Zagorski, No. 18A385, 2018 WL 4934191 (U.S. Oct.
11, 2018). A timely-issued reprieve from execution, however, provides this court the
opportunity to take up the merits.
II.
The “catchall” provision in Rule 60(b)(6) vests courts with a deep reservoir of equitable
power to vacate judgments “to achieve substantial justice” in the most “unusual and extreme
situations.” Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007). And with great power comes
great responsibility; in deciding these motions, a district court must “intensively balance
numerous factors, including the competing policies of the finality of judgments and the incessant
command of the court’s conscience that justice be done in the light of all the facts.” McGuire v.
Warden, 738 F.3d 741, 750 (6th Cir. 2013) (citation omitted). Out of deference to this highly
fact-bound process, this court asks not whether we think that Zagorski presented extraordinary
circumstances warranting relief, but rather whether the district court abused its discretion in
deciding that he did not. See Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014).
III.
Zagorski submits that the district court incorrectly denied his Rule 60(b)(6) motion
because it failed to consider the merits of three claims originally raised in his habeas petition:
(1) his trial counsel ineffectively failed to fully investigate other suspects; (2) the trial court
incorrectly instructed the jury on the meaning of mitigating circumstances in violation of Lockett
v. Ohio, 438 U.S. 586 (1978); and (3) his capital sentence violated United States v. Jackson,
390 U.S. 570 (1968), because the prosecution originally offered two life sentences in exchange
for pleas of guilty to each murder before trial. Although the district court found all three claims
procedurally defaulted on habeas review, Zagorski now argues that a combination of Martinez
and Edwards overcomes all defaults. He also maintains that because this capital case involves
“significant and substantial” constitutional claims that a court has never reviewed, the balance of
the equities demands Rule 60(b)(6) relief. As did the district court, we evaluate each argument
in turn.
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A. Claims Raised on Habeas Review
Although the district court denied habeas relief on Zagorski’s ineffective assistance of
trial counsel claim, he contends that Martinez resuscitates it. In Martinez, the Supreme Court
delineated a very narrow exception to the Coleman rule prohibiting a habeas petitioner from
demonstrating cause for a procedural default by claiming ineffective assistance of trial counsel
during state post-conviction proceedings. Martinez, 566 U.S. at 8; Coleman v. Thompson,
501 U.S. 722, 752 (1991). But Martinez did not change a criminal defendant’s constitutional
rights; it merely adjusted the equitable rules as to when he might avail himself of federal
statutory relief. Wright v. Warden, 793 F.3d 670, 672 (6th Cir. 2015). And like most of our
sister circuits, we have determined that changes in decisional law alone do not establish grounds
for Rule 60(b)(6) relief. Abdur’Rahman v. Carpenter, 805 F.3d 710, 714 (6th Cir. 2015); see
also Miller v. Mays, 879 F.3d 691, 698–99 (6th Cir. 2018). A petitioner must present something
more than just the availability of statutory relief from which he was previously barred.
Recognizing this, the district court rightly discounted this factor.
The district court also denied relief for Zagorski’s procedurally defaulted Lockett and
Jackson claims. In his Rule 60(b) motion, Zagorski took a new tack, arguing ineffective
assistance because his trial counsel failed to object to both the jury instructions and the
imposition of death. But these brand new ineffective assistance of counsel claims—presented for
the very first time in this motion—are themselves procedurally defaulted. See Hodges v. Colson,
727 F.3d 517, 530 (6th Cir. 2013). To excuse this default, Zagorski points to Edwards, which
“require[s] a prisoner to demonstrate cause for his state-court default of any federal claim, and
prejudice therefrom, before the federal habeas court will consider the merits of that claim.”
529 U.S. at 451. Thus, Zagorski argues, Edwards supports his contention that, under Martinez,
the ineffective assistance of post-conviction counsel establishes the cause and prejudice to
excuse the newly raised and procedurally defaulted ineffective assistance of trial counsel claims,
which in turn overcomes the procedural bar to the original Lockett and Jackson claims that
Zagorski raised in his habeas petition.
As the district court recognized, permitting a two-layer showing of cause to excuse the
default of a substantive constitutional claim would detonate Coleman’s procedural default bar.
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501 U.S. at 732. Coleman ensures state courts the first opportunity to correct any constitutional
violations stemming from their own mistakes. See id. at 730–32. Zagorski’s reading flouts the
very principle of federalism that the Supreme Court took pains to protect, and would permit
habeas petitioners to resurrect procedurally defaulted claims in a motion for Rule 60(b)(6) relief
by newly invoking the phrase: “post-conviction counsel ineffectively failed to raise an
ineffective assistance of trial counsel claim.” We cannot read Martinez as the exception that
swallows this rule. “If Coleman’s revetment is to be torn down, it is not for us to do it. Rather,
we must follow the case which directly controls” and leave the Supreme Court to overrule its
own decisions. Hunton v. Sinclair, 732 F.3d 1124, 1127 (9th Cir. 2013) (quotation omitted).
But even if we credited this expansive reading of Martinez and Edwards, we cannot
address a habeas claim disguised as a motion for Rule 60(b) relief. The Supreme Court instructs
us to construe a Rule 60(b) motion as a successive habeas petition if it “seeks to add a new
ground for relief.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see also Moreland v.
Robinson, 813 F.3d 315, 322–23 (6th Cir. 2016) (“A movant is not making a habeas claim when
he seeks only to lift the procedural bars that prevented adjudication of certain claims on the
merits. But he is making a habeas claim when he seeks to add a new ground for relief or seeks to
present ‘new evidence in support of a claim already litigated.’” (quoting Gonzalez, 545 U.S. at
531)). By now asserting ineffective assistance of trial counsel claims in an attempt to revive his
Lockett and Jackson claims, Zagorski presents new constitutional bases for habeas relief. 1 Thus,
he needed this court’s authorization to pursue those claims. Moreland, 813 F.3d at 322 (citing
28 U.S.C. § 2244(b)(3)).
Although we need not address the merits, see Sheppard v. Robinson, 807 F.3d 815, 820
(6th Cir. 2015), we note that to prevail under 28 U.S.C. § 2244(b)(2)(A), Zagorski must show
that each new ineffective assistance of trial counsel claim “relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was previously
1The dissent suggests that Zagorski’s newly-raised ineffective assistance of counsel argument presents a
procedural hurdle and not a substantive claim. This cannot be true. Zagorski’s theory of Martinez and Edwards
permits us to reach the underlying Lockett and Jackson claims only through an ineffective assistance of trial counsel
claim. This ineffective assistance of trial counsel claim raises substantive concerns about Zagorki’s Sixth
Amendment right to counsel. Thus, though the dissent correctly states that Zagorski seeks “to lift the procedural
bars that prevented consideration of his Lockett claim,” he attempts to do so with a substantive claim. Dissent at 13.
No. 18-6052 Zagorski v. Mays Page 6
unavailable[.]” Because he relies on Martinez—an equitable rather than constitutional rule—he
cannot. See Moreland, 813 F.3d at 326.
B. Other Equitable Factors
In addition to his Martinez arguments, Zagorski argues that his capital sentence and the
merits of his constitutional claims present extraordinary circumstances warranting Rule 60(b)(6)
relief, and that the district court abused its discretion when it concluded otherwise. We disagree.
“[E]ven in cases involving the death penalty, we must afford ‘profound respect’ to the
finality interests stemming from our prior decision denying habeas relief.” Miller, 879 F.3d at
700–01 (quoting Sheppard, 807 F.3d at 821). This does not mean that we ignore the
“irreversible finality of [an impending] execution,” or that we do not take seriously the Supreme
Court’s instruction that “[c]onventional notions of finality of litigation have no place where life
or liberty is at stake and infringement of constitutional rights is alleged.” Thompson v. Bell,
580 F.3d 423, 444 (6th Cir. 2009) (quoting Sanders v. United States, 373 U.S. 1, 8 (1963)). But
as the district court recognized, impending capital punishment does not mandate Rule 60(b)
relief, especially when the merits of Zagorski’s defaulted claims do not support such an
extraordinary remedy. See Miller, 879 F.3d at 701; see also Gonzalez, 545 U.S. at 535–36
(noting that habeas cases rarely present the appropriate circumstances for exercising a court’s
equitable authority under Rule 60(b)(6)).
Like the panel in Miller, we do not necessarily agree that our cases require us to consider
the merits of Zagorski’s underlying constitutional claims when evaluating whether the district
court abused its discretion in balancing the equities and denying Rule 60(b)(6) relief. See Miller,
879 F.3d at 702–03. Neither a Third Circuit case, Cox v. Horn, 757 F.3d 113, 124–25 (3d Cir.
2014),2 nor an entirely distinguishable Supreme Court case involving the denial of a certificate of
2The dissent relies on Cox to support adopting a “flexible, multifactor approach” that more seriously
weighs changes in decisional law when balancing the equities for Rule 60(b)(6) relief. Yet the Third Circuit’s more
flexible approach presents a minority position within the circuits. See 12 J. Moore, Moore’s Federal Practice
§§ 60.48[5][b]–[c] (3d Ed. 2018). Most circuits—including our own—require something much more
“extraordinary” than the change in a law that an appellant originally decided not to appeal, but now seeks to benefit
from. See Ackermann v. United States, 340 U.S. 193, 202 (1950) (“Neither the circumstances of petitioner nor his
excuse for not appealing is so extraordinary as to bring him within . . . Rule 60(b)(6).”) And notably, none of the
cases that the dissent cites ultimately granted a habeas petitioner Rule 60(b)(6) relief.
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appealability and a substantive question as to whether a petitioner had received ineffective
assistance of counsel, Buck v. Davis, 137 S. Ct. 759, 775–80 (2017), persuades us otherwise.
Permitting appellants to evade habeas jurisdictional bars by raising the merits of a procedurally
defaulted claim in a Rule 60(b)(6) motion could “expose federal courts to an avalanche of
frivolous postjudgment motions.” Gonzalez, 545 U.S. at 534–35. But Miller acknowledged that
our cases presented some uncertainty as to the proper course of action, see Wright, 793 F.3d at
673–74, and assumed it appropriate to consider the merits to decide “whether it changes the
balance of equities with respect to [the appellant’s] Rule 60(b)(6) motion.” 879 F.3d at 702. We
do the same.
To prevail on his underlying ineffective assistance of trial counsel claim, Zagorski must
show that trial counsel’s alleged failure to investigate other suspects for the murders constituted
deficient performance that resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Because “there can be no finding of ineffective assistance of counsel without prejudice,”
Phillips v. Bradshaw, 607 F.3d 199, 216 (6th Cir. 2010), we look first to whether Zagorski shows
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Zagorski cannot satisfy this burden. He provided several statements to the police
“implicat[ing] himself in the killings” along with “other mercenaries,” but declined to identify
any other individuals he claimed were involved. Zagorski, 701 S.W.2d at 811–12. As the
district court explained, given the overwhelming evidence against Zagorski, a more thorough
investigation of another suspect would not have reasonably been likely to affect the outcome of
the trial.
Next, Zagorski’s Lockett claim requires us to examine “whether the [allegedly
unconstitutional] instruction by itself so infected the entire trial that the resulting conviction
violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Significantly, a juror in a
capital case may “not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604. As the district court
No. 18-6052 Zagorski v. Mays Page 8
noted, no such violation occurred here. When asked by the jury to define what constitutes a
mitigating circumstance, the trial court stated:
Mitigating circumstances are within your province, if there are any. You have
heard the evidence of the case, and no additional evidence was produced at the
sentencing hearing, so you may consider all of the evidence that was presented
in the entire case. The law sets out certain mitigation circumstances which have
no particular applicability in this case, but you’re not limited to those, so you
can consider any mitigating circumstances that in your judgment would
comply with the instructions given.
Citing a dissent from a denial of certiorari to the Supreme Court, Hodge v. Kentucky, 568 U.S.
1056 (2012) (Sotomayor, J., dissenting), Zagorski takes exception with the trial court’s follow-
up, when the jury foreman requested a definition of “mitigating”:
Mitigating would mean any circumstance which would have a tendency to lessen
the aggravation, which would have any tendency to — (Pause) — give a reason
for the act, I cannot think of a better definition right now, except that it’s opposed
to aggravating and would have a tendency to lessen or tend — not “to”,
necessarily, but tend to justify, and to take away any of the aggravation of the
circumstance.
But here, all the mitigating evidence Zagorski marshalled during his habeas petition had already
been presented to the jury during the guilt phase of trial. See Zagorski, 701 S.W.2d at 810–11.
The court had already instructed the jury that it could consider that evidence; its later instruction
changed nothing.
Finally, Zagorski’s claim under United States v. Jackson also necessarily fails. Zagorski
asserts that because prosecutors offered him two life sentences if he pleaded guilty to the
murders, imposing the death penalty after trial unconstitutionally burdened his rights to assert his
innocence and demand a jury trial. But Jackson invalidated a sentencing provision in the Federal
Kidnapping Act because it permitted a court to impose the death penalty on only those
defendants who insisted on invoking their constitutional rights to plead not guilty and present
their case to a jury. 390 U.S. at 582–83. It did not hold that prosecutors may not offer lesser
sentences in exchange for a guilty plea in capital cases. See, e.g., Brady v. United States, 397
U.S. 742, 747 (1970). To the contrary, many Supreme Court cases repudiate such a notion, see
United States v. Mezzanatto, 513 U.S. 196, 210 (1995), and specifically reinforce the teaching
No. 18-6052 Zagorski v. Mays Page 9
that “a State may encourage a guilty plea by offering substantial benefits in return for the plea.”
Corbitt v. New Jersey, 439 U.S. 212, 219 (1978). Although plea bargaining certainly
discourages a defendant from exercising his Fifth and Sixth Amendment rights, “the imposition
of these difficult choices [is] . . . an inevitable attribute of any legitimate system which tolerates
and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973).
IV.
Because the district court did not abuse its discretion when it decided that none of
Zagorski’s proposed equitable considerations merit relief from judgment under Rule 60(b)(6), we
AFFIRM.
No. 18-6052 Zagorski v. Mays Page 10
_________________
DISSENT
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COLE, Chief Judge, dissenting. Zagorski’s motion for relief rests on Rule 60(b)(6),
which permits relief “only in exceptional or extraordinary circumstances[.]” Olle v. Henry &
Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (citations omitted). In denying Zagorski’s
motion, the district court held that Martinez v. Ryan, 566 U.S. 1 (2012), “is not an extraordinary
circumstance warranting Rule 60(b)(6) relief.” This finding is unobjectionable and accords with
our precedent. But the Rule 60(b)(6) inquiry does not end with the determination that Martinez
alone is insufficient to warrant relief, because Zagorski does not request relief based on Martinez
alone. The combination of a change in decisional law, a meritorious underlying constitutional
claim, and the irreversible finality of capital punishment warrants relief. In failing to fully
consider the combined weight of these factors, the district court abused its discretion.
I.
Zagorski presents two claims of ineffective assistance of trial counsel. First, he claims
that, “in violation of the Eighth Amendment and Lockett v. Ohio, 438 U.S. 586 (1978), the trial
court erroneously defined ‘mitigating evidence,’ thereby precluding full consideration of
mitigating evidence of the circumstances of the offense,” and “trial counsel was ineffective in
failing to object” to this constitutional violation. Second, he claims that “trial counsel failed to
effectively show Jimmy Blackwell’s involvement in these murders (for purposes of showing
reasonable doubt at the guilt phase or residual doubt at sentencing).” Appellant Br. 10.
Zagorski concedes both claims were procedurally defaulted. But “counsel’s
ineffectiveness in failing properly to preserve the claim for review in state court” can suffice as
“‘cause’ to excuse a procedural default” of a substantive claim. Edwards v. Carpenter, 529 U.S.
446, 451 (2000). And “[i]nadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Martinez, 566 U.S. at 9. Taken together, Zagorski argues these holdings instruct that
ineffective assistance of post-conviction counsel “supplies the ‘cause’ for the otherwise defaulted
No. 18-6052 Zagorski v. Mays Page 11
cause argument that trial counsel was ineffective for failing to object, under Lockett, to the trial
judge’s instructions.” Appellant Br. at 8.
In my view, Zagorski is correct. As the district court observed, our cases counsel against
reading Martinez any more broadly than the Court intended. See Hodges v. Colson, 727 F.3d
517, 531 (6th Cir. 2013). But unlike the claims at issue in Hodges, Zagorski’s claims fall
squarely within the scope of the Martinez exception—to “establish cause for [his] procedural
default of a claim of ineffective assistance at trial” (trial counsel’s failure to object to the Eighth
Amendment violation), Zagorski presented a claim of “[i]nadequate assistance of counsel at
initial-review collateral proceedings” (post-conviction counsel’s failure to spot trial counsel’s
error). Martinez, 566 U.S. at 9. This court has long held that failure to object to constitutional
violations or other clear legal errors can constitute ineffective assistance within the meaning of
Strickland. See, e.g., McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012); Lucas v.
O’Dea, 179 F.3d 412, 418 (6th Cir. 1999). That trial counsel’s error caused a substantive
constitutional violation should not prohibit a criminal defendant from arguing his counsel’s error
constitutes ineffective assistance for Martinez and Edwards purposes.
Zagorski’s reading of Martinez and Edwards is fully consistent with the reasoning
underlying both cases. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court
established the general rule that an attorney’s mistake in a collateral proceeding where the
defendant had no right to counsel does not establish cause for procedural default. But in
Martinez, the Court carved out a “narrow exception” to that rule: “Inadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” 566 U.S. at 9.
In describing why the Martinez exception to the general rule was necessary, the Supreme
Court explicitly recognized the relationship between Martinez and Edwards:
A prisoner’s inability to present a claim of trial error is of particular concern when
the claim is one of ineffective assistance of counsel. The right to the effective
assistance of counsel at trial is a bedrock principle in our justice system. . . .
Effective trial counsel preserves claims to be considered on appeal, see, e.g., Fed.
Rule Crim. Proc. 52(b), and in federal habeas proceedings, Edwards v. Carpenter,
529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000).
No. 18-6052 Zagorski v. Mays Page 12
Martinez, 566 U.S. at 12. Part of the reason the Court justified the need for the Martinez
exception was its concern that ineffective trial counsel may fail to preserve claims for habeas
review—exactly what happened to Zagorski.
The majority argues that “permitting a two-layer showing of cause to excuse the default
of a substantive constitutional claim would detonate Coleman’s procedural default bar.”
Zagorski’s approach would require this court to undertake a two-layer cause analysis to excuse
procedural default. But the Supreme Court in Edwards contemplated this result. Justice Scalia,
writing for the majority in Edwards, found that a claim of “ineffective assistance adequate to
establish cause for the procedural default of some other constitutional claim is itself an
independent constitutional claim,” and that while such a claim “generally must ‘be presented to
the state courts as an independent claim before it may be used to establish cause for a procedural
default,’” the procedural default of “an ineffective-assistance-of-counsel claim asserted as cause
for the procedural default of another claim” may “itself be excused if the prisoner can satisfy the
cause-and-prejudice standard with respect to that claim.” 529 U.S. at 451–53. Thus, a two-layer
showing is also consistent with Supreme Court precedent.
Determining whether a defendant’s two sets of ineffective counsel warrant excuse of two
instances of procedural default is necessarily a thorny undertaking, and it would not warrant Rule
60(b)(6) relief every time a defendant invokes a simple “phrase,” as the majority suggests.
Rather, the defendant will still have to overcome the unenviable hurdle of meeting the Strickland
deficiency and prejudice requirements and the Martinez substantiality requirement before his
motion would be granted. As the Third Circuit has held, where a defendant facing the death
penalty “has navigated each twist of the habeas labyrinth” and “overcome every hurdle,” “we
may review the merits.” Richardson v. Superintendent Coal Twp. SCI, No. 15-4105, 2018 WL
4701949, at *12 (3d Cir. Oct. 2, 2018). The same should be true in the context of a Rule
60(b)(6) motion.
Nor does Supreme Court precedent require us to construe Zagorski’s claims as a
successive habeas petition rather than a Rule 60(b) motion. As the majority notes, “[a] movant is
not making a habeas claim when he seeks only to lift the procedural bars that prevented
adjudication of certain claims on the merits. But he is making a habeas claim when he seeks to
No. 18-6052 Zagorski v. Mays Page 13
add a new ground for relief or seeks to present ‘new evidence in support of a claim already
litigated.’” Moreland v. Robinson, 813 F.3d 315, 322–23 (6th Cir. 2016). Zagorski’s claims
clearly amount to the former—he is seeking to lift the procedural bars that prevented
consideration of his Lockett claim on the merits by challenging the doubly-ineffective assistance
that led to the procedural default at issue.
Martinez excuses procedural default of a claim that trial counsel was ineffective where a
petitioner can make two showings: first, that his post-conviction counsel provided ineffective
assistance, and second, that the underlying claim of ineffective assistance of trial counsel is a
“substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.” 566 U.S. at 14. To establish ineffective assistance, a petitioner must satisfy Strickland v.
Washington’s requirements of deficiency and prejudice. 466 U.S. 668, 687 (1984).
Zagorski showed that his post-conviction counsel’s assistance was ineffective.
Specifically, Zagorski presented evidence that his post-conviction counsel never recognized that
trial counsel should have objected to the jury instruction under Lockett, which amounts to
deficient performance under the Strickland analysis. See Sims v. Livesay, 970 F.2d 1575, 1580–
81 (6th Cir. 1992) (“We discern no strategy in [counsel’s action], only negligence.”).
Zagorski’s claim that his trial counsel was ineffective meets Martinez’s threshold of
substantiality. There is at least “some merit” to his claim that trial counsel’s failure to recognize
and object to an unconstitutional jury instruction constitutes deficient performance. See, e.g.,
Hinton v. Alabama, 571 U.S. 263, 274 (2014) (“An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research on that point is a
quintessential example of unreasonable performance under Strickland.”).
Zagorski’s prejudice claim also has at least “some merit.” Failure to object to the
mitigation instruction could have prejudiced him in two ways. First, the instruction prevented
jurors from considering as mitigating evidence that the victims were “armed, heavily intoxicated,
drug dealers.” Appellant Br. at 19. The district court was correct to reject any “suggestion that
‘a defendant is less culpable if he murders a vile person.’” But a juror could have drawn other
inferences—for example, that the victims were dangerous, and even if that did not “tend to
No. 18-6052 Zagorski v. Mays Page 14
justify” the crime as the district court instructed, it contributed to the circumstances of the crime.
See Lockett, 438 U.S. 586, 604 (holding that jurors must be permitted to consider “any of the
circumstances of the offense” as mitigating evidence). These interpretations highlight why the
lack of “individualized consideration of mitigating factors” is unconstitutional in capital cases:
preventing the jury “from giving independent mitigating weight to aspects of the defendant’s
character and record and to circumstances of the offense proffered in mitigation creates the risk
that the death penalty will be imposed in spite of factors which may call for a less severe
penalty.” Id. at 605–06. If the jury received the correct mitigating instruction and made the
individualized consideration the Eighth Amendment requires, “there is a reasonable probability
that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510,
537 (2003).
Zagorski’s briefing also contains a second, sufficiently “substantial” theory that bolsters
his contention that counsel’s deficiency prejudiced him. Zagorski’s second ineffective assistance
claim is premised on his attorney’s failure to present mitigating evidence of another suspect.
“The Tennessee Supreme Court has stated that residual doubt is a nonstatutory mitigating
circumstance[.] Such evidence ‘may consist of proof . . . that indicates the defendant did not
commit the offense, notwithstanding the jury’s verdict following the guilt phase.’” Sutton v.
Bell, 683 F. Supp. 2d 640, 715 (E.D. Tenn. 2010). If not for ineffective counsel, the jury would
have received (a) evidence of another suspect’s plot to kill the victim and (b) a jury instruction
on mitigation broad enough to encompass the new evidence of an alternative suspect. With these
two material changes in Zagorski’s proceedings, the probability that at least one juror would not
have imposed the death sentence is even greater. I would find Zagorski presented a sufficiently
substantial Martinez claim to excuse his procedural default.
II.
“In determining whether extraordinary circumstances are present, a court may consider a
wide range of factors,” including “‘the risk of injustice to the parties’ and ‘the risk of
undermining the public’s confidence in the judicial process.’” Buck v. Davis, 137 S. Ct. 759, 778
(2017) (citations omitted). The district court’s abuse of discretion lies in its failure to fully
consider the remaining factors that Zagorski put forth in addition to Martinez.
No. 18-6052 Zagorski v. Mays Page 15
The district court acknowledged and dismissed Zagorski’s other proposed factors at the
end of its opinion, noting there had been “no ‘dramatic[] shift,’ or any shift at all, in any of the
petitioner’s other factors.” But no such shift is required. A death sentence is itself an equitable
factor that moves the needle in favor of granting Zagorski’s motion for relief under Rule
60(b)(6). We have repeatedly embraced 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.’” See, e.g., Miller v. Mays, 879 F.3d 691, 700–01 (6th Cir. 2018)
(quoting Sanders v. United States, 373 U.S. 1, 8 (1963)). In considering Rule 60(b)(6) motions
in capital cases, we have held that “the finality of the judgment against [a defendant] must be
balanced against the more irreversible finality of his execution,” in addition to any constitutional
concerns the defendant raises. Wright v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670,
673 (6th Cir. 2015) (emphasis added); see also Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014)
(finding courts must consider “whether the capital nature of [the] case or any other factor might
counsel that Martinez be accorded heightened significance … or provide a reason … for granting
60(b)(6) relief.”). This balancing did not take place. Neither a defendant’s “interest in avoiding
the death penalty” by itself nor a “change in decisional law” by itself would create exceptional
circumstances. Miller, 879 F.3d at 701; Wright, 793 F.3d at 672. But the combined weight of
the shift in decisional law, the death sentence, and the meritorious Martinez claim creates an
extraordinary circumstance that warrants granting Zagorski’s Rule 60(b)(6) motion.
I would reverse the district court’s order and grant Zagorski’s motion for relief.