-MRM Sheppard v. Bagley

Filing 166

REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEFFROM JUDGMENT TO ALLOW RECONSIDERATION IN LIGHT OF MARTINEZ V. RYAN. In sum, Sheppard has not shown sufficient extraordinary circumstances to outweigh the interests of the State of Ohio in the finality of this Courts judgment. The Motion should be denied. Objections to R&R due by 9/7/2012. Signed by Magistrate Judge Michael R Merz on 08/20/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BOBBY T. SHEPPARD,
:
Petitioner,

Case No. 1:00-cv-493
:

District Judge Gregory L. Frost
Magistrate Judge Michael R. Merz

-vsNORM ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF
FROM JUDGMENT TO ALLOW RECONSIDERATION IN LIGHT OF
MARTINEZ V. RYAN
This capital habeas corpus case is before the Court on Petitioner’s Motion for Relief from
Judgment Under Rule 60 to Allow Reconsideration of One Portion of Ground for Relief Nine in
Light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Motion for Indicative ruling from the
District Court in Accordance with Rule 62.1 (Doc. No. 150). The Warden opposes the Motion
(Doc. No. 151) and Petitioner has filed a Reply in support (Doc. No. 155).
A motion for relief from judgment under Fed. R. Civ. P. 60(b) is, obviously, a
post-judgment motion and therefore deemed referred to a magistrate judge under 28 U.S.C. §
636(b)(3), requiring a report and recommended disposition.
The portion of the Motion seeking an indicative ruling under Fed. R. Civ. P. 62.1 is moot
because the Sixth Circuit has issued its mandate in the case (Doc. No. 154), returning jurisdiction
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to this Court.
The Motion is made under Fed. R. Civ. P. 60(b)(6). Petitioner asks this Court to reopen
the judgment so that it can reconsider its decision on sub-claim 6 of his Ninth Ground for Relief.
That claim asserts Petitioner received ineffective assistance of trial counsel in that “Trial counsel
should have submitted evidence from Dr. Smalldon or another expert to show that Jones’ nutshell
definition of paranoid schizophrenia was misleading and inaccurate.” (Amended Petition, Doc.
No. 77, at 46-48.)1

Procedural History of Ground Nine, Sub-Claim Six

The Magistrate Judge recommended that this sixth sub-claim be dismissed as procedurally
defaulted because it was raised for the first time in a second or successive post-conviction petition
under Ohio Revised Code § 2953.21 and the Ohio courts enforced their rule requiring available
claims of ineffective assistance of trial counsel to be raised in an initial post-conviction petition
(Report and Recommendations (the “Report”), Doc. No. 94, PageID 293-297). The Report also
recommended in the alternative that “to the extent the trial court relied on the doctrine of res
judicata [relating to claims which must be raised on direct appeal] in denying the relevant
sub-claims, the sub-claims are [likewise] procedurally defaulted.” Id. at PageID 298. Finally, the
Report found Sheppard had “made no showing of cause and prejudice to excuse procedural default

1 Counsels’ construction of the claim as being that “trial counsel should have submitted at least some evidence to
support their new-trial motion based on juror misconduct” (Motion, Doc. No. 150, PageID 905) is overbroad.
Counsels’ later construction of the claim as being “that trial counsel could have obtained the additional evidence
generated at the federal evidentiary hearing and submitted it in support of Sheppard’s new-trial motion” (Motion, Doc.
No. 150, PageID 906) is grossly overbroad. The Magistrate Judge’s consideration is limited to the sub-claim as
pleaded. Expanding the sub-claim would require a separate motion to amend.

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as it relates to the present sub-claims [and those sub-claims should] be denied as they are
procedurally defaulted.” Id.
Petitioner’s prior habeas counsel filed what they styled “Limited Objections” to the Report
(Doc. No. 100). However, no objection was made to any of the recommended findings and
disposition of any part of the Ninth Ground for Relief.
In adopting the recommendations as to the Ninth Ground for Relief, Judge Frost held:
It does not appear that Petitioner objected to the Magistrate Judge's
conclusion or even once mentioned his ninth ground for relief in any
of the objections or responses that he filed in response to the
Magistrate Judge's two Reports and Recommendations. For the
reasons set forth by the Magistrate Judge and because Petitioner did
not object, this Court adopts the Magistrate Judge's Report and
Recommendation to DENY Petitioner's ninth ground for
relief-sub-parts (1), (2), (3), (5), and (6) ninth ground for relief as
procedurally defaulted, and sub-part (4) as without merit.
Sheppard v. Bagley, 604 F. Supp. 2d 1003, 1043 (S.D. Ohio 2009).
Represented by new counsel who remain his attorneys at this stage of the case, Sheppard
then moved to alter the judgment, but new counsel made no mention of any part of Ground for
Relief Nine in that Motion (Doc. No. 133). This Court’s judgment denying the writ was then
affirmed on appeal where Petitioner was represented by the same counsel, but denial of the Ninth
Ground for Relief was not raised as an error committed by this Court. Sheppard v. Bagley, 657
F.3d 338 (6th Cir. 2011); Brief of Petitioner on Appeal, Attach. 1 to Doc. No. 161. Petitioner
sought a writ of certiorari from the Supreme Court, but did not make any argument about Ground
for Relief Nine (Petition for Writ of Certiorari, Attach. 4 to Doc. No. 161). The writ was denied.
Sheppard v. Robinson, 183 L. Ed. 2d 623 (2012).

-3-

The Decision in Martinez v. Ryan

Counsel now seek to have the judgment reopened, not to correct any error this Court made,
but because of an intervening change in the law this Court applied. That change was wrought by
Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed 2d 272 (2012), decided March 12,
2012, a month before Sheppard filed his petition for certiorari.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court had held that an
attorney’s ignorance or inadvertence in a postconviction proceeding did not qualify as cause to
excuse a procedural default. Coleman remained the law for twenty years and the District Court in
Martinez and the Ninth Circuit on appeal in that case applied Coleman to bar consideration of an
ineffective assistance of trial counsel claim which had been procedurally defaulted by failure to
raise the claim by the first attorney who could have raised it. The Supreme Court reversed,
holding:
To protect prisoners with a potentially legitimate claim of
ineffective assistance of trial counsel, it is necessary to modify the
unqualified statement in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default. This opinion qualifies
Coleman by recognizing a narrow exception: 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.

132 S. Ct. at 1315. The Court noted that Arizona “does not permit a convicted person alleging
ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner
must bring the claim in state collateral proceedings.” Id. at 1313. As the Court noted, citing
Massaro v. United States, 538 U.S. 500 (2003), Arizona parallels the federal system in this regard:
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federal court claims of ineffective assistance of trial counsel cannot be raised on direct appeal even
if they depend on the record; they must be raised by motion to vacate under 28 U. S.C. § 2255.
Because a collateral petition was the only proceeding in which an ineffective assistance of trial
counsel claim could be raised in Arizona, the Supreme Court thought it should be made more like
the situation where a claim of ineffective assistance of trial counsel can be raised on direct appeal,
where a defendant is constitutionally guaranteed the effective assistance of counsel so that a
defective representation on direct appeal can provide excusing cause. See discussion, Martinez,
132 S. Ct. at 1317.
The precise holding in Martinez is
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where
the state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at trial.
The second is where appointed counsel in the initial-review
collateral proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for certificates
of appealability to issue).

Id. at 1318-1319. The Court emphasized the narrowness of the new rule. “Coleman held that
an attorney's negligence in a postconviction proceeding does not establish cause, and this remains
true except as to initial-review collateral proceedings for claims of ineffective assistance of
counsel at trial.” Id. at 1319. “The rule of Coleman governs in all but the limited circumstances

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recognized here.” Id. at 1320.
The Supreme Court did not grant habeas relief in Martinez, but remanded for decision of
(1) “whether Martinez's attorney in his first collateral proceeding was ineffective,” (2) “whether
his claim of ineffective assistance of trial counsel is substantial,” and (3) “the question of
prejudice.” Id. at 1321.

Analysis

To prevail on his instant Motion, Petitioner must show:
1.

That Ohio is sufficiently like Arizona in its treatment of ineffective assistance of trial

counsel claims to make Martinez applicable at all.
2.

That failure to present on initial postconviction review the ineffective assistance of trial

counsel claim made in Ground Nine, sub-claim six, itself meets the standard of Strickland v.
Washington, supra, i.e., that it was unreasonably deficient performance and prejudiced the
Petitioner.
3.

That the ineffective assistance of trial counsel claim made in Ground Nine, sub-claim six,

is “substantial” or “has some merit. ”
4.

That the Motion otherwise meets the requirements of Fed. R. Civ. P. 60(b)(6).

-6-

1.

Comparing the Ohio and Arizona Procedures for Raising Ineffective Assistance of

Trial Counsel Claims

Petitioner argues Martinez is directly applicable because “Ohio law mandated that
Sheppard raise claims involving evidence outside the trial record in post-conviction proceedings,”
(Motion, Doc. No. 150, PageID 918), citing State v. Hunter, 131 Ohio St. 3d 67, ¶ 46 (2011); State
v. Cooperrider, 4 Ohio St. 3d 226 (1983); and Williams v. Anderson, 460 F.3d 789, 799 (6th Cir.
2006). (Motion, Doc. No. 150, PageID 918.) In Williams, the Sixth Circuit described Ohio law
generally on the subject:
Ohio law requires criminal defendants to bring ineffective
assistance of counsel claims on direct review if the defendant has
new counsel on appeal, and the trial court record contains sufficient
evidence to support the claim. State v. Cole, 2 Ohio St. 3d 112, 443
N.E.2d 169, 171 (1982). Where the trial court record does not
contain sufficient evidence to support the claim, however, the
defendant must instead bring the claim in post-conviction
proceedings. See State v. Cooperrider, 4 Ohio St. 3d 226, 4 Ohio B.
580, 448 N.E.2d 452, 454 (Ohio 1983). Unlike on direct review, in
post-conviction proceedings a petitioner may introduce evidence
outside the trial court record to support the claim. See id. If a
defendant chooses to bring an ineffective assistance of counsel
claim on direct review, however, Ohio's "res judicata" rule
precludes the defendant from re-raising the claim in post-conviction
proceedings. Id.
In the instant case, Petitioner chose to bring his ineffective
assistance of counsel claim on direct review, thereby foregoing the
opportunity to present evidence outside the trial court record to
support his claim. Ohio has finality and judicial economy interests
in enforcing its prohibition on re-litigation of ineffective assistance
of counsel claims in post-conviction proceedings. State v. Saxon,
846 N.E.2d 824, 109 Ohio St. 3d 176, 2006 WL 759668, at *5
(2006). Thus, normally, we would respect the Ohio court's decision
to enforce "res judicata" and decline to consider a petitioner's
evidence where the petitioner chose to raise his or her ineffective
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assistance of counsel claim on direct review. Cf. Coleman v.
Thompson, 501 U.S. 722, 730-31, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) (stating that procedurally defaulted claims are not
reviewed for comity and federalism reasons).

460 F.3d at 799. Cooperrider held that
[I]t is impossible to determine whether the attorney was ineffective
in his representation of appellant where the allegations of
ineffectiveness are based on facts not appearing in the record. For
such cases, the General Assembly has provided a procedure
whereby appellant can present evidence of his counsel's
ineffectiveness. This procedure is through the post-conviction
remedies of R.C. 2953.21. This court has previously stated that
when the trial record does not contain sufficient evidence regarding
the issue of competency of counsel, an evidentiary hearing is
required to determine the allegation. State v. Hester, supra. Such a
hearing is the proper forum for appellant's claim.
Appellant should have no fear that the doctrine of res judicata will
prevent him from raising the issue of ineffective assistance of
counsel in a post-conviction hearing. "As long as no direct appeal
was taken, or the claim of incompetent counsel was not raised and
adjudicated on a direct appeal, res judicata does not bar the
adjudication of this issue in post-conviction proceedings." State v..
Gibson (1980), 69 Ohio App. 2d 91, 99 [23 O.O.3d 130] (Krenzler,
C.J., concurring). Since it is clear that the court of appeals in the
present case did not adjudicate the issue, the doctrine of res judicata
does not apply. Thus, appellant is free to petition for a
post-conviction evidentiary hearing to develop a record upon which
this issue may be more effectively addressed.
Cooperrider, 4 Ohio St. 3d at 228-229. 2
Petitioner asserts that “evidence outside the record is required to demonstrate trial
counsel’s ineffectiveness related to the extrinsic evidence/juror misconduct claim. . . .
2

Hunter, supra, is inapposite. In Hunter, the Ohio Supreme Court held only that “[a] reviewing court cannot add
matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter," Hunter, 131 Ohio St. 3d at 74, quoting State v. Ishmail, 54 Ohio St.2d 402, (1978), paragraph
one of the syllabus.

-8-

Accordingly, Sheppard’s first post-conviction counsel (apparently Kevin Durkin per Doc. No.
165, PageID 1451) would be the pertinent ‘initial-review collateral proceedings’ counsel under
Martinez.” (Motion, Doc. No. 150, PageID 918.)
In the alternative, Sheppard notes that Ohio allows ineffective assistance of appellate
counsel claims to be raised only in proceedings to reopen the appeal under Ohio R. App. P. 26(B),
often referred to as Murnahan proceedings. Assuming the instant claim of ineffective assistance
of trial counsel should have been raised on direct appeal based on evidence in the record before the
appeals court, then, it is argued, direct appeal counsels’ failure to raise it was ineffective assistance
of appellate counsel and that claim of ineffective assistance of appellate counsel should have been
raised in the 26(B) application. It was not, but, says Sheppard, his Murnahan counsel’s3 failure
to raise it can provide cause, under Martinez, to excuse that omission (Motion, Doc. No. 150,
PageID 919-920).
If Sheppard was required to raise this claim on direct appeal, Martinez is no help to him.
Justice Kennedy makes it clear that the Martinez exception to Coleman is limited to claims of
ineffective assistance at trial.

He notes the distinction between initial-review collateral

proceedings and other collateral proceedings and notes that the exception is carved from Coleman
only for the former. 132 S. Ct. at 1316. In discussing possible stare decisis objections to
Martinez, Justice Kennedy wrote:
Coleman held that an attorney's negligence in a postconviction
proceeding does not establish cause, and this remains true except as
to initial-review collateral proceedings for claims of ineffective
assistance of counsel at trial. Coleman itself did not involve an
occasion when an attorney erred in an initial-review collateral
proceeding with respect to a claim of ineffective trial counsel; and in
3 Apparently Assistant State Public Defender Jane Perry per Doc. No. 165, PageID 1451.

-9-

the 20 years since Coleman was decided, we have not held Coleman
applies in circumstances like this one.

132 S. Ct. at 1319 (emphasis added). Finally, at the end of his opinion, he stated:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
132 S. Ct. 1320.
Ineffective assistance by Murnahan counsel does not come within Martinez because
Murnahan motions can raise only ineffective assistance of appellate counsel claims, not
ineffective assistance of trial counsel claims.
This leaves Sheppard with the argument that his ineffective assistance of trial counsel
claim necessarily depends on evidence outside the record on appeal. Recall that the claim is
“[t]rial counsel should have submitted evidence from Dr. Smalldon or another expert to show that
Jones’ nutshell definition of paranoid schizophrenia was misleading and inaccurate.” (Amended
Petition, Doc. No. 77, at 46-48.) The time for submission of such evidence would have been in
connection with the motion for new trial.
On June 13, 1995, trial attorney Robert J. Ranz filed the Motion for New Trial (Return of
Writ (“ROW”) App’x Vol II, pp. 1-4). Attached to that motion is a transcript of proceedings
before Judge Crush on May 30, 1995. During that proceeding Juror Fox admitted contacting
Helen Jones during the penalty phase of the trial. Fox averred that he had not discussed what Ms.
Jones told him with any of the other jurors and what she said had not influenced his decision. Id.
p. 6. He testified that what he heard from her did not differ from what he had heard at trial from
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Dr. Smalldon, that it did not make him favor the prosecution, and that he would not have come to a
different conclusion if he had not made the call. Id. p. 7. The call was made before the start of
deliberations in the penalty phase. Id. at p. 8. Prosecutor Piepmeier opposed the motion for new
trial with the statement that Ohio R. Evid. 606(B) prevents a juror from being the source of his own
disqualification. Id. at p. 37. Also attached was Mr. Ranz’s Affidavit reminding Judge Crush
that Dr. Smalldon had testified at length at trial about paranoid schizophrenia and his diagnosis of
that illness in Mr. Sheppard.
To satisfy the aliunde rule, Mr. Ranz obtained and presented an August 29, 1995, Affidavit
of Helen Jones that she received a phone call from Juror Fox on May 16, 1995 (ROW, App’x Vol.
II, p. 40).

She avers she gave Mr. Fox a brief description and explanation of paranoid

schizophrenia. Id. The prosecutor then procured a new Affidavit from Ms. Jones in which she
averred that she had reviewed a transcript of Dr. Smalldon’s testimony and that what she said to
Juror Fox was totally consistent with that testimony (ROW, App’x Vol. II, p. 53). Judge Crush
summarily denied the Motion for New Trial (ROW, App’x Vol. II, p. 58).
The fountainhead of Ohio’s criminal res judicata doctrine is found in State v. Perry, 10
Ohio St. 2d 175 (1967), where the syllabus reads:

6. Where a judgment of conviction is rendered by a court having
jurisdiction over the person of the defendant and jurisdiction of the
subject matter, such judgment is not void, and the cause of action
merged therein becomes res judicata as between the state and the
defendant.
7. Constitutional issues cannot be considered in postconviction
proceedings under Section 2953.21 et seq., Revised Code, where
they have already been or could have been fully litigated by the
prisoner while represented by counsel, either before his judgment of
conviction or on direct appeal from that judgment, and thus have
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been adjudicated against him.
8. The Supreme Court of Ohio will apply the doctrine of res judicata
in determining whether postconviction relief should be given under
Section 2953.21 et seq., Revised Code.
9. Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that
judgment.

Perry, 10 Ohio St. 2d at 175-176.
Perry continues to be good law. Williams v. Anderson, supra. Under Perry, Sheppard was
barred from litigating his claim of ineffective assistance of trial counsel in post-conviction if he
could have litigated it on direct appeal.
Sheppard’s appeal counsel had available as part of the direct appeal record the following
relevant evidence: (1) Fox’s testimony about making the call to Jones and the response he
received; (2) two affidavits from Helen Jones on what she said to Fox and how it compared to
Smalldon’s testimony; and (3) the evident lack of any affidavit from Dr. Smalldon. If appellate
counsel believed, as current counsel believe, that the absence a Smalldon affidavit was crucial, its
absence was apparent on the face of the record. Of course, they would still have been required to
show prejudice from the absence of the affidavit, but for that they had available all of Dr.
Smalldon’s trial testimony on paranoid schizophrenia. If there are inconsistencies between
Jones’ definition as given to Fox and Smalldon’s testimony, those inconsistencies could readily
have been pointed out to the court of appeals from the evidentiary materials already in the record.
Direct appeal counsel could have argued ineffective assistance of trial counsel based on the record
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they had on direct appeal. Because they could have argued the claim on direct appeal, res
judicata would have barred Sheppard from raising it in his first Ohio Revised Code § 2953.21
petition. Because it would have been barred from consideration, it cannot have been ineffective
assistance in the Martinez-incorporating-Strickland sense for initial post-conviction counsel to
have failed to raise it. Ohio law required Sheppard to raise his ineffective assistance of trial
counsel claim on direct appeal. Consequently, Martinez is not applicable.

2.

It Was Not Ineffective Assistance of Post-Conviction Counsel to Fail to Make the

Ineffective Assistance of Trial Counsel Claim Pled in Sub-part 6 of Ground Nine.

For the reasons just given, to wit, that this claim was required to be raised on direct appeal
under Ohio law, it was not ineffective assistance of post-conviction counsel to fail to make the
ineffective assistance of trial counsel claim in the first post-conviction petition.

3.

The Ineffective Assistance of Trial Counsel Claim made in Ground Nine, Sub-part

Six, is Arguably Substantial or Has Some Merit.

The third element required to be proved under Martinez is that the underlying ineffective
assistance of trial counsel claim is “substantial . . . which is to say that the prisoner must
demonstrate that the claim has some merit.” 132 S.Ct. at 1318.
Immediately following this quotation, Justice Kennedy’s opinion reads “Cf. Miller-El v.
Cockrell, 537 U. S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (describing standards for

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certificates of appealability to issue).” Sheppard reads this citation as “equating the relevant
standard to those necessary for issuance of a certificate of appealability.” (Motion, Doc. No. 150,
PageID 921.) Because the introductory signal “cf.” means “compare,” it is not clear that the
Supreme Court is equating the appealability standard with the substantiality requirement.
In this case, without concluding the two standards have been equated, the Magistrate Judge
believes the ineffective assistance of trial counsel claim has “some merit” because, as Sheppard
notes, all courts to consider the matter have found Juror Fox’s phone call to be misconduct, but all
have agreed there was no prejudice demonstrated. An additional affidavit from Dr. Smalldon of
the sort hypothesized in Ground Nine, sub-claim six could possibly have had an impact on that
conclusion.

4.

The Motion Does Not Meet the General Standards for Relief from Judgment

Relief should be granted under Fed. R. Civ. P. 60(b)(6) only in unusual circumstances
where principles of equity mandate relief, Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th
Cir. 1990), and the district court’s discretion under 60(b)(6) is particularly broad. Johnson v.
Dellatifa, 357 F.3d 539 (6th Cir. 2004); McDowell v. Dynamics Corp., 931 F.2d 380, 383 (6th Cir.
1991); Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Relief is
warranted only in exceptional or extraordinary circumstances not addressed by the other numbered
clauses of Rule 60. Dellatifa; Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294
(6th Cir. 1989).

A change in decisional law is usually not, by itself, an extraordinary

circumstance. Agostini v. Felton, 521 U.S. 203, 239 (1997); Blue Diamond Coal Co. v. Trs. of the

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UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). Subsection (b)(6) is properly
invoked only in “unusual and extreme situations where principles of equity mandate relief.”
Frontier Ins. Co. v. Blaty, 454 F.3d 590, 597 (6th Cir. 2006) (internal quotation marks omitted).
Sheppard argues that the following extraordinary circumstances exist in this case. First, it
is a death penalty case (Motion, Doc. No. 150, PageID 911). Second, the “change in law in
Martinez precisely addresses the issue with Sheppard’s [ineffective assistance of trial counsel]
claim.” Id. “Third, Sheppard’s Martinez claim is strong” because without relief from judgment
his ineffective assistance of trial counsel claim will never have been heard on the merits by any
court. Id. at 912.
Stokes v. Williams, 475 F.3d 732 (6th Cir. 2007), cited by Sheppard, is a habeas case in
which the petition had been dismissed as untimely under circuit law as it existed before Abela v.
Martin, 348 F.3d 164 (6th Cir. 2003). The petition would have been timely under Abela and the
petitioner sought relief from judgment under Fed. R. Civ. P. 60(b)(6). Affirming denial of relief
from judgment and summarizing the standard under Fed. R. Civ. P. 60(b)(6), the Sixth Circuit
wrote:
As recognized by the district judge in this case, in evaluating claims
for relief pursuant to Rule 60(b)(6), federal courts have consistently
held "that a change in decisional law is usually not, by itself, an
'extraordinary circumstance' meriting Rule 60(b)(6) relief." Blue
Diamond Coal Co., 249 F.3d at 524. See also Gonzalez v. Crosby,
545 U.S. 524, 125 S. Ct. 2641, 2650, 162 L. Ed. 2d 480 (2005);
Agostini v. Felton, 521 U.S. 203, 239, 117 S. Ct. 1997, 138 L. Ed. 2d
391 (1997); Overbee, 765 F.2d at 580. The respondent in this case in
fact cites this line of decisions in opposing Stokes's claim for relief
based upon the en banc Abela ruling. Especially prominent in his
appellate argument is his reliance upon Gonzalez, a case in which
the United States Supreme Court ruled that a change in the way the
applicable habeas corpus statute-of-limitations period could be
tolled did not resurrect a habeas petition that had been dismissed as
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untimely in accordance with earlier precedent. As stated by the
Court, "The District Court's interpretation was by all appearances
correct under the Eleventh Circuit's then-prevailing interpretation of
28 U.S.C. § 2244(d)(2). It is hardly extraordinary that subsequently,
after petitioner's case was no longer pending, this Court arrived at a
different interpretation." Gonzalez, 125 S. Ct. at 2650.

475 F.3d at 735-736. The Stokes court particularly noted that a change in decisional law is less
supportive of 60(b)(6) relief when the judgment has become final, as has the judgment in this case
with issuance of the mandate. Id. at 736. Although Stokes was not a capital case, the petitioner
was serving a life sentence for rape. The effect of denying 60(b)(6) relief was that the petitioner
never got federal court consideration of any of his habeas corpus claims, not just the one sub-claim
asserted here. The Stokes court quoted with approval the test under 60(b)(6) enunciated in Blue
Diamond Coal Co., supra: “[T]he decision to grant Rule 60(b)(6) relief is a case-by-case inquiry
that requires the trial court to 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 light of all the facts.'" 249 F.3d at 529 (quoting Griffin v. Swim-Tech Corp., 722
F.2d 677, 680 (11th Cir. 1984)).
Although this is a death penalty case, that fact cuts both ways with respect to the instant
Motion. This case has been thoroughly considered by the Ohio and federal courts. Even though
the case was presented to the United States Supreme Court within weeks after the Martinez
decision, that Court did not see this ineffective assistance of trial counsel claim as so important as
a matter of justice to apply Martinez, perhaps because it was not asked.4 It is always in the
interest of a death row inmate to seek further review because further review delays execution of
4

If the Martinez claim is as strong as counsel assert, why didn’t they present it directly to the Supreme Court when
they had the opportunity?

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sentence. In his typically trenchant fashion, Justice Scalia spelled out the likely dynamics in his
dissent in Martinez:
Whether counsel appointed for state collateral review raises the
ineffective-assistance-of-trial-counsel claim or not, federal habeas
review will proceed. In practical effect, that may not make much
difference in noncapital cases (except for the squandering of state
taxpayers' money): The defendant will stay in prison, continuing to
serve his sentence, while federal habeas review grinds on. But in
capital cases, it will effectively reduce the sentence, giving the
defendant as many more years to live, beyond the lives of the
innocent victims whose life he snuffed out, as the process of federal
habeas may consume. I guarantee that an assertion of ineffective
assistance of trial counsel will be made in all capital cases from this
date on, causing (because of today's holding) execution of the
sentence to be deferred until either that claim, or the claim that
appointed counsel was ineffective in failing to make that claim, has
worked its way through the federal system.

132 S. Ct. at 1323-1324 (emphasis sic). Thus the fact that this is a death penalty case does not
weigh unequivocally in favor of reopening the judgment.
Second, contrary to Sheppard’s assertion, the change in law in Martinez does not
“precisely address[ ] the issue with Sheppard’s IAC claim.” (Motion, Doc. No. 150, PageID
911.) As pointed out at length above, Ohio is not a State like Arizona in which all claims of
ineffective assistance of trial counsel must be brought in post-conviction. In fact, the “fit” of the
change of law with a habeas petitioner’s claims was much closer in Stokes, supra, and in Gonzalez
v. Crosby, 545 U.S. 524 (2005), but relief under Fed. R. Civ. P. 60(b)(6) was denied in both of
those cases.
Third, Sheppard’s Martinez claim is not strong, despite his assertion to the contrary.
Remember, the defaulted claim is that trial counsel rendered ineffective assistance in not adding an
affidavit of Dr. Smalldon to the new trial motion. The asserted excusing cause is failure to
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include that claim in the first post-conviction petition. Sheppard has not made a strong showing
that that particular claim is so strong that it would likely have resulted in granting the first petition.
Because Martinez is new, the courts have not yet developed standards for evaluating the
performance of post-conviction counsel, aside from the announcement by the Supreme Court that
Strickland v. Washington applies. Strickland also applies to claims of ineffective assistance of
appellate counsel, but different tasks are involved in trying and appealing cases. To some extent,
post-conviction counsel will, as appellate counsel must, choose among available claims to raise,
and this would not have been a particularly strong argument to make, given that counsel moving
for a new trial already had Dr. Smalldon’s trial testimony from which to argue.
An unspoken premise of Sheppard’s argument is that, if they had tried harder, counsel
moving for the new trial could have obtained the evidence eventually presented during the
evidentiary hearing in this Court, where Juror Fox essentially repudiated his trial court testimony
and Ms. Jones repudiated her second affidavit. But they offer no proof that such repudiations
would have been obtainable at the time the motion for new trial was made or even that they
represent the state of mine of Fox and Jones at the time. And Sheppard’s attempt to stretch the
Sub-part six claim to cover all the testimony given in federal court is also unavailing. The claim
as pled and adjudicated in this Court and in the Sixth Circuit is that counsel on the new trial motion
were ineffective for failure to include additional evidence from Dr. Smalldon or a similar expert on
how misleading Jones’ definition was. There is no “harsh injustice” in the failure of any court to
decide that claim on the merits.

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Conclusion

In sum, Sheppard has not shown sufficient extraordinary circumstances to outweigh the
interests of the State of Ohio in the finality of this Court’s judgment. The Motion should be
denied.

August 20, 2012.

s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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