RITCHIE v. WILSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

BENJAMIN RITCHIE, )

)

Petitioner, )

)

v. ) No. 1:08-cv-00503-RLY-MJD

)

RON NEAL, )

)

Respondent. )

Order Denying Motion to Stay Execution

and Granting Certificate of Appealability

Benjamin Ritchie is an Indiana state prisoner scheduled for execution before sunrise at

Indiana State Prison on May 20, 2025. He was sentenced to death in 2002 for the murder of police

officer William Toney. He unsuccessfully pursued a direct appeal, state post-conviction relief,

federal habeas relief before this court, and most recently was unable to convince a majority of the

Indiana Supreme Court to authorize the filing of a successive petition for post-conviction relief.

Mr. Ritchie now files a motion for relief from judgment in this court, under Fed. R. Civ. P.

60(b)(6), from its denial of his habeas petition under 28 U.S.C. § 2254. Dkt. 64. He has

contemporaneously filed a motion to stay execution.1 Dkt. [65]. For the reasons below, the court

DENIES the motion to stay. The court also addresses whether a certificate of appealability should

issue from this order and concludes that one should issue.

1 Mr. Ritchie's state attorneys have also filed a motion to stay execution with the United States Supreme

Court, in conjunction with filing a petition for certiorari challenging the Indiana Supreme Court's denial of

permission to seek successive post-conviction relief. Ritchie v. Indiana, No. 24A1077. As of the signing of

this order, the Supreme Court has not yet ruled on that motion. On May 14, 2025, Indiana Governor Mike

Braun accepted the unanimous recommendation of the Indiana Parole Board to not commute Mr. Ritchie's

death sentence.

I. Background

A. Mr. Ritchie's Crimes

On direct appeal, the Indiana Supreme Court described Mr. Ritchie's crimes as follows:

On September 29, 2000, around 7:00 p.m., Ritchie and two others

stole a white Chevrolet Astro van from a gas station in Beech Grove.

The theft was reported and police were dispatched to the scene

where Beech Grove police officer Matt Hickey filed a stolen vehicle

report. Approximately two hours later, Hickey was en route to a

traffic accident scene and recognized the stolen van as Ritchie and

one of his accomplices drove by. After confirming by radio that the

van bore the license plate of the stolen vehicle, Hickey pursued,

joined by officers Robert Mercuri and William Toney. After a short

chase, the van pulled into the yard of a residence where Ritchie and

his companion jumped out and ran in opposite directions. Officer

Toney pursued Ritchie on foot, and ultimately Ritchie turned and

fired four shots, one of which struck Toney in the chest. Toney died

at the scene.

Ritchie v. State, 809 N.E.2d 258, 261 (Ind. 2004) (Ritchie I).

B. Procedural History

1. Trial and Sentencing

At trial, Mr. Ritchie was represented by Jack Crawford and Kevin McShane. Dkt. 64-1 at

86. At the sentencing phase of trial, Mr. Crawford and Mr. McShane presented evidence and

argument regarding Mr. Ritchie's mother's alcohol and substance abuse during her pregnancy.

They also presented the testimony of clinical neuropsychologist Michael Gelbort, PhD. Dr. Gelbort

testified that, based on neuropsychological testing, Mr. Ritchie had Cognitive Disorder Not

Otherwise Specified. Dkt. 64 at 30 (citing Trial Tr. 2499). Dr. Gelbort also testified that this

diagnosis meant "there's something demonstrably wrong with the way his cognition or thinking

skills work but it doesn't really pin them down." Id. There was some discussion of whether

Mr. Ritchie might suffer from Fetal Alcohol Spectrum Disorder ("FASD"), as there was evidence

of his mother having abused alcohol while she was pregnant. Id. at 31. Dr. Gelbort testified that

he was not an expert regarding FASD and could not diagnosis that Mr. Ritchie had it, but he did

refer to his mother's substance abuse during pregnancy as probably contributing to his cognitive

problems. Id. In closing, the prosecutor argued that there was no evidence that Mr. Ritchie had

FASD. Id.

The jury found Mr. Ritchie guilty of murder and other offenses and recommended

imposition of the death penalty, and the judge imposed it. Ritchie I, 809 N.E.2d at 261. On direct

appeal, the Indiana Supreme Court held that (1) Indiana's death penalty statute did not violate the

Indiana and United States Constitutions; (2) Indiana's method of execution did not violate the

Eighth Amendment's ban on cruel and unusual punishment; (3) Indiana's death penalty statute in

effect at the time of Mr. Ritchie's sentencing was not an improper ex post facto law; (4) the jury's

weighing of aggravating and mitigating circumstances was proper and did not violate the Sixth

Amendment; (6) Indiana Trial Rule 59(J)(7) did not apply to the jury's death penalty

recommendation; (7) the trial was not tainted by prosecutorial misconduct; (8) there was sufficient

evidence to sustain the murder conviction; and (8) a juror's post-trial note expressing displeasure

with one of Mr. Ritchie's attorneys did not warrant a new trial. Id. at 261-71. Mr. Ritchie's

convictions and sentence were affirmed.

2. Post-Conviction Relief Proceedings

In 2005, Mr. Ritchie filed a state post-conviction relief ("PCR") petition. He was now

represented by attorneys Joseph Cleary and Brent Westerfeld. In part, Mr. Cleary and

Mr. Westerfeld argued that Mr. Ritchie had received ineffective assistance of counsel during the

sentencing phase of trial because Mr. Crawford and Mr. McShane should have done "a better job

in presenting evidence of mitigation." Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007) (Ritchie

II). Specifically, Mr. Cleary and Mr. Westerfeld argued (1) trial counsel should have contacted

teachers and school personnel to discuss Mr. Ritchie's troubled childhood after he had been

adopted; (2) trial counsel should have directed their mitigation specialist to prepare a "social

history report" summarizing Mr. Ritchie's troubled childhood; and (3) trial counsel should have

obtained other psychological experts to testify in addition to Dr. Gelbort. Id. at 719-22.

Regarding the third issue, Mr. Cleary and Mr. Westerfeld contended that (1) trial counsel

should have called a psychiatrist to testify who had treated Mr. Ritchie as an inpatient following

an attempted suicide attempt several years earlier; and (2) trial counsel should have procured other

psychological experts to testify on Mr. Ritchie's behalf to show that he actually suffered from

bipolar disorder. Id. at 723. Mr. Cleary and Mr. Westerfeld presented testimony at the PCR hearing

from a forensic psychologist, Dr. Robert Kaplan, who believed Mr. Ritchie did have that condition.

"Dr. Kaplan was unable to specifically identify the cause but only speculated genetic factors or

early childhood abuse, neglect, substance abuse, or abandonment could be to blame." Id.

The PCR court denied relief to Mr. Ritchie, except for vacating one misdemeanor resisting

law enforcement conviction on double jeopardy grounds. Id. at 713 n.5. The Indiana Supreme

Court affirmed the PCR court's ruling in its entirety. Regarding trial counsel's failure to present

more psychological mitigating evidence for Mr. Ritchie, the Court held that "[a]dding cumulative

evidence to Dr. Gelbort's testimony would not lead to a reasonable probability that the jury would

have recommended a sentence other than death" and "[t]he ability of post-conviction counsel to

locate and present expert opinion disagreeing with the psychiatric evidence at trial does not lead

necessarily to the conclusion of counsel's ineffectiveness." Id. at 722-23.

3. Habeas Corpus Proceedings

On July 21, 2008, Mr. Ritchie—still represented by Mr. Cleary and Mr. Westerfeld—filed

a petition for habeas corpus relief in this court under 28 U.S.C. § 2254. Dkt. 11. The petition argued

in part, and extensively, that trial counsel had been ineffective during the penalty phase of trial

with respect to investigation and presentation of mitigating evidence. Dkt. 11 at 11-18. In sum,

Mr. Cleary and Mr. Westerfeld argued that the Indiana Supreme Court unreasonably applied

federal law when rejecting Mr. Ritchie's ineffective assistance claims.

On May 23, 2014, the court issued an order denying Mr. Ritchie's habeas petition in its

entirety. Dkt. 32 (Ritchie III). Regarding the sentencing mitigation and mental health claims, this

court stated:

Ritchie's ineffective assistance of counsel claim relating to the

penalty phase of his trial boils down to a contention that his counsel

did not present enough mitigating evidence. "[S]uch arguments

come down to a matter of degrees, which are ill-suited to judicial

second-guessing." Woods v. McBride, 430 F.3d 813, 826 (7th Cir.

2005) (citing Conner v. McBride, 375 F.3d 643, 666 (7th Cir.

2004)). The Indiana Supreme Court's rejection of these arguments

was a reasonable application of Strickland to the facts of the case.

Id. at 13.

On March 30, 2015, the court denied Mr. Ritchie's motion to alter or amend judgment.

Dkt 38. On December 22, 2015, the court denied his request for a certificate of appealability.

Dkt. 48. On July 15, 2016, the Seventh Circuit issued its mandate affirming the denial of a

certificate of appealability. Dkt. 53. On April 17, 2017, the Supreme Court denied Mr. Ritchie's

certiorari petition. Ritchie v. Indiana, No. 16-7101 (U.S.).

4. Subsequent Proceedings

On September 27, 2024, the State of Indiana ("the State") filed a motion with the Indiana

Supreme Court requesting that it set an execution date for Mr. Ritchie as required by law. Dkt. 64-

1 at 4. The motion noted in part that Mr. Ritchie "has never alleged he suffers from a mental disease

or defect that prevents him from understanding court proceedings, assisting his counsel, or

apprehending the justification for his sentence." Id. at 7. Justice Massa recused from any

proceedings regarding Mr. Ritchie because of his participation in the original prosecution. Id. at

77.

On November 1, 2024, Mr. Ritchie, through the Public Defender of Indiana ("State PD"),

filed a motion with the Indiana Supreme Court requesting he be allowed to file a successive PCR

petition. Id. at 27. In part, the motion asserted that "[b]oth trial and post-conviction counsel failed

to recognize red flags in Ritchie's mother's disclosure of alcohol abuse and in Ritchie's mental

health and school records." Id. at 40. Attached to the motion were opinions from four experts

opining that Mr. Ritchie likely does in fact have FASD. Id. The State PD also argued, "[t]he

impairments attributable to an FASD establish a cause for Ritchie's behavior. The causes and

extent of the impairments also constitute strong mitigating evidence which was not presented by

the trial attorneys." Id. The State PD further contended that evidence of Mr. Ritchie's childhood

lead poisoning had been "underdeveloped" in previous state proceedings. Id. at 43.

Also, Mr. Westerfeld submitted an affidavit stating in part:

4. Mr. Ritchie was provided inadequate post-conviction

representation because we failed to investigate a claim of ineffective

assistance of trial counsel for failure to present evidence to

Benjamin Ritchie's jury and trial judge that was both evident and

likely to succeed.

5. It was our mistaken belief that a Fetal Alcohol Spectrum Disorder

is only present if there are physical abnormalities.

6. We now recognize that had a brain scan been taken, as requested

by our expert, the result would have likely shown significant

developmental abnormalities that would have given the context

required for the jury to understand the entirety of Mr. Ritchie's

mitigation presented to the jury and the post-conviction court.

Id. at 65-66. The State PD argued that Mr. Cleary and Mr. Westerfeld provided ineffective

assistance of post-conviction counsel under Martinez v. Ryan, 566 U.S. 1 (2012), and also that

Indiana's current standard for evaluating effectiveness of counsel in post-conviction proceedings,

as defined by Baum v. State, 533 N.E.2d 1200 (Ind. 1989), is inadequate especially in capital cases

and should be revisited.2

On April 15, 2025, the Indiana Supreme Court denied Mr. Ritchie's request to pursue

successive PCR by a 2-2 vote and set an execution date of May 20, 2025. Ritchie v. State, 254

N.E.3d 1064 (Ind. 2025) (Ritchie IV). Chief Justice Rush and Justice Goff dissented from the denial

of allowing Mr. Ritchie to seek successive PCR, both of whom believed Mr. Ritchie should have

been allowed to pursue his claims related to FASD. Justice Goff also wanted to revisit the Baum

standard. The Indiana Supreme Court denied rehearing on April 30, 2025.

The State PD has filed a petition for certiorari with the Supreme Court, arguing that the

two Indiana Supreme Court justices who voted against Mr. Ritchie had improperly relied on the

Baum standard instead of the Martinez standard in rejecting any claim that Mr. Cleary and

Mr. Westerfeld had provided ineffective assistance of post-conviction counsel. Ritchie v. Indiana,

No. 24-7157 (U.S.).

5. Mr. Cleary's and Mr. Westerfeld's Representation of Mr. Ritchie

As noted, Mr. Cleary and Mr. Westerfeld represented Mr. Ritchie during his state post-

conviction relief proceedings and filed and litigated his habeas corpus petition with this court. In

2012, while the habeas proceedings were ongoing, Mr. Cleary left private practice and began

working at the Indiana Federal Community Defender Office ("IFCD"). Dkt. 64 at 20. Thereafter,

he did not withdraw his appearance before this court and continued to be listed as an attorney of

record on filings with this court. See, e.g., dkt. 40 (April 29, 2015, motion for certificate of

appealability). Mr. Cleary's position at IFCD prohibited him from "engaging in the practice of law"

2 Baum holds that the Strickland ineffective assistance standard does not apply to post-conviction counsel.

Rather, counsel need only represent "the petitioner in a procedurally fair setting which resulted in a

judgment of the court . . . ." Baum, 533 N.E.2d at 1201.

or "engaging in the practice of law outside the scope of his . . . official duties . . . ." Dkt. 64-1 at

316-17.

Mr. Westerfeld's last act on behalf of Mr. Ritchie was filing the certiorari petition with the

Supreme Court on December 5, 2016. On September 17, 2024, Mr. Cleary filed a motion to

withdraw, followed by Mr. Westerfeld's motion on September 18, both of which motions were

granted. Dkts. 56, 57, 58, 59. On October 10, 2024, the court granted the motion of the Federal

Community Defender Office for the Eastern District of Pennsylvania to represent Mr. Ritchie in

these proceedings. Dkt. 60.

6. Current Proceedings

Mr. Ritchie, by new counsel, filed a Rule 60(b)(6) motion for relief from judgment and a

motion for stay of execution with this court on May 7, 2025. Dkts. 64, 65. An appendix is attached

to the Rule 60(b) motion, which includes all of the filings and evidence submitted by the State PD

in support of seeking permission to pursue successive PCR, plus two new reports from experts,

not previously disclosed by the State PD, discussing Mr. Ritchie and the likelihood that he has

FASD. Dkt. 64-1 at 329-431. The 60(b) motion asserts that Mr. Cleary and Mr. Westerfeld

provided ineffective assistance of counsel during the state PCR proceedings by failing to argue (or

adequately argue) and present evidence on whether trial counsel unreasonably failed to investigate

and present evidence of Mr. Ritchie's alleged FASD and childhood lead poisoning, particularly

with respect to the sentencing phase of trial. Dkt. 64 at 2. The court ordered briefing on the motion

to stay, to be completed by May 15, 2025, at noon. Dkt. 67. This matter is now ripe for ruling.

II. Discussion

A motion for stay of execution requires the court to consider the same factors that apply

when deciding whether to issue a preliminary injunction. Ramirez v. Collier, 595 U.S. 411, 421

(2022). The standard for granting such a motion is "(1) whether the stay applicant has made a

strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556

U.S. 418, 434 (2009). A stay of execution is an "equitable remedy" that "is not available as a matter

of right, and equity must be sensitive to the State's strong interest in enforcing its criminal

judgments without undue interference from the federal courts." Hill v. McDonough, 547 U.S. 573,

584 (2006). "A court considering a stay must also apply 'a strong equitable presumption against

the grant of a stay where a claim could have been brought at such a time as to allow consideration

of the merits without requiring entry of a stay.'" Id. (quoting Nelson v. Campbell, 541 U.S. 637,

650 (2004)).

A. Likelihood of Success on the Merits

1. Martinez-Trevino (and Brown)

Mr. Ritchie essentially concedes that the claims he now seeks to bring regarding trial

counsel's effectiveness would ordinarily be considered procedurally defaulted. Under § 2254, a

petitioner may not raise a claim in federal court that has been procedurally defaulted. Procedural

default "occurs when a claim could have been but was not presented to the state court and cannot,

at the time that the federal court reviews the habeas petition, be presented to the state court."

Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). See also Guest v. McCann, 474 F.3d

926, 930 (7th Cir. 2007) ("If a habeas petitioner has not exhausted a claim, and complete

exhaustion is no longer available, the claim is procedurally defaulted."). Procedural default also

may occur if a state court rejected a federal claim based on a state procedural rule "that is both

independent of the federal question and adequate to support the judgment." Clemons v. Pfister,

845 F.3d 816, 819 (7th Cir. 2017) (internal citations omitted). Procedural default may be excused

if a habeas petitioner can show "cause for the default and resulting prejudice, or by showing he is

actually innocent of the offense."3 Brown v. Brown, 847 F.3d 502, 509 (7th Cir. 2017).

In Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), the Supreme Court established the

general rule that an attorney's errors in a post-conviction proceeding will not establish "cause" for

excusing procedural default of an issue in a subsequent habeas proceeding under § 2254. Then, in

Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court carved out a "narrow" exception to

Coleman. Specifically, "[w]here, 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."

Id. at 17. If an attorney represented the petition in the initial collateral proceeding, a habeas

petitioner may avoid procedural default of an ineffective assistance of trial counsel claim if he

makes a showing that the underlying ineffective-assistance-of-trial-counsel claim "has some

merit" and that collateral-review counsel provided ineffective assistance under the standards of

Strickland v. Washington, 466 U.S. 668 (1984). Id. at 14.

In Trevino v. Thaler, 569 U.S. 413, 429 (2013), the Supreme Court expanded the Martinez

rule to include states where a claim of ineffective assistance of counsel may "in theory" be raised

on direct appeal, "but, as a matter of procedural design and systemic operation, denies a meaningful

opportunity to do so . . . ." The Trevino opinion specifically analyzed Texas's post-conviction relief

system and concluded that it did "not offer most defendants a meaningful opportunity to present a

claim of ineffective assistance of trial counsel on direct appeal." Id. at 428. In dissent, Chief Justice

3 Mr. Ritchie does not argue that he is actually innocent.

Roberts asserted that the majority's rule was inadvisable because it would require "endless . . .

state-by-state litigation" to determine whether a state's post-conviction system falls under Trevino.

Id. at 433 (Roberts, C.J., dissenting).

In Brown, the Seventh Circuit addressed for the first time whether Martinez-Trevino

applies to Indiana's post-conviction relief system. It noted that Chief Justice Roberts had "predicted

accurately a long process of state-by-state litigation on applying Trevino." 847 F.3d at 509. After

considering that Indiana state defendants may technically raise a claim of ineffective assistance of

trial counsel on direct appeal but are strongly encouraged by courts and litigators to instead pursue

such claims on post-conviction relief, the Seventh Circuit held that "[t]he Martinez-Trevino form

of cause to excuse procedural default is available to Indiana defendants who seek federal habeas

relief." Id. at 512-13.

2. Availability of Relief Through Rule 60(b)

A threshold issue is whether it is appropriate to seek to set aside this court's judgment under

Rule 60(b), or whether Mr. Ritchie is required to seek permission from the Seventh Circuit to file

a successive habeas corpus petition under 28 U.S.C. § 2244(b). Generally, a Rule 60(b) motion

that attacks a court's "previous resolution of a claim on the merits" must be treated as a successive

§ 2254 motion. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). "[A] Rule 60(b) motion based on

a purported change in the substantive law governing the claim could be used to circumvent

§ 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is 'a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.'" Id. at 531-32.

However, "Rule 60(b) has an unquestionably valid role to play in habeas cases." Id. at 534.

"If neither the motion itself nor the federal judgment from which it seeks relief substantively

addresses federal grounds for setting aside the movant's state conviction, allowing the motion to

proceed as denominated creates no inconsistency with the habeas statute or rules." Id. at 533. In

Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015), the Seventh Circuit held that an

alleged Martinez-Trevino issue with counsel's performance on federal collateral review could be

raised through a 60(b) motion under Gonzalez, rather than a pre-approved successive collateral

petition.4 That is because, like here, a claim that federal habeas counsel's representation of the

petitioner in prior collateral proceedings prevented them from raising a Martinez-Trevino

ineffective assistance claim against themselves attacks the "integrity" of the federal habeas

proceeding itself, rather than the merits of an underlying claim. Id. at 856. See also Clark v. Davis,

850 F.3d 770, 779-80 (5th Cir. 2017) (holding Rule 60(b) motion was not a successive habeas

petition because it attacked "not the substance of the federal court's resolution of the claim of the

merits, but asserts that [habeas counsel] had a conflict of interest that resulted in a defect in the

integrity of the proceedings").

Mr. Ritchie frames his 60(b) motion as one challenging Mr. Cleary's and Mr. Westerfeld's

performance in the federal habeas proceedings as deficient because they had a conflict of interest

under Martinez-Trevino. That is, they could not realistically or ethically challenge their own

performance as state PCR counsel in litigating the claim that trial counsel were ineffective—a

claim that Brown established is governed by Martinez-Trevino. Erring on the side of caution, and

in light of Ramirez, the court concludes that Mr. Ritchie's 60(b) motion need not be treated as an

improper, unapproved successive habeas petition.

4 Ramirez also incorporated the Martinez-Trevino framework into the context of federal conviction

collateral proceedings under 28 U.S.C. § 2255. 799 F.3d at 854.

3. Rule 60(b)(6) Standard

Mr. Ritchie specifies that he is seeking relief from judgment under Federal Rule of Civil

Procedure 60(b)(6). The State does not argue that a different subsection of that Rule should apply.

Rule 60(b)(6) allows a court to reopen a judgment for "any other reason that justifies relief," when

subsections (1)-(5) of the Rule would not apply. Such relief is available only in "extraordinary

circumstances." Gonzalez, 545 U.S. at 535. A court may consider a wide range of factors in

determining whether to set aside judgment, including "'the risk of injustice to the parties' and 'the

risk of undermining the public's confidence in the judicial process.'" Buck v. Davis, 580 U.S. 100,

122 (2017) (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)).

"Rule 60(b) vests wide discretion in courts . . . ." Id.

In addition to "extraordinary circumstances," a Rule 60(b)(6) movant must show that the

motion was filed within a "reasonable time" under Rule 60(c). Kemp v. United States, 596 U.S.

528, 531-32 (2022). To determine whether an "unreasonable" amount of time has passed, a court

must balance a number of factors, including the interest in finality of judgments, the reasons for

delay, the ability of the petitioner to learn earlier about the grounds relied upon in a 60(b)(6)

motion, and prejudice to parties. Shakman v. City of Chicago, 426 F.3d 925, 933-34 (7th Cir.

2005). "There is no hard and fast rule as to how much time is reasonable for the filing of a Rule

60(b)(6) motion; courts have found periods of as little as a few months unreasonable, and have

found periods of as long as three years reasonable." Sudeikis v. Chi. Transit Auth., 774 F.2d 766,

769 (7th Cir. 1985). Whether a delay represents an unreasonable amount of time is fact specific.

Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986). A delay of even a few months

in filing a motion after learning of new information may be unreasonable. See, e.g., id. (three-and-

a half months); United States v. Moorehead, 321 F. App'x 512 (7th Cir. 2009) (five months after

finding out new information, two years after judgment). When a judgment has been final for years

prior to the motion, "the interest in finality militates affirming the dismissal of the petition." Ingram

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004).

4. Mr. Ritchie's 60(b)(6) Motion Was Not Filed Within a Reasonable Time

Even assuming the decisions in Martinez-Trevino could constitute "extraordinary

circumstances" possibly warranting relief from judgment, the court concludes that the current

60(b)(6) motion was not filed with a "reasonable time."

The main thrust of Mr. Ritchie's argument as to why his 60(b)(6) motion was filed within

a "reasonable time" is that he was effectively precluded from making any Martinez-Trevino

arguments so long as Mr. Cleary and Mr. Westerfeld continued to be his attorneys of record in this

court. Therefore, the "reasonable time" to file such a motion only began when new counsel were

appointed for Mr. Ritchie on October 10, 2024, and this motion filed eight months later is timely

due to the complexity of researching and drafting a motion such as this in a capital case.

Mr. Ritchie cites and discusses a number of cases that he argues compels the conclusion

that he was effectively abandoned by Mr. Cleary and Mr. Westerfeld, which should excuse most

of the delay in filing the current motion—i.e., the time until they withdrew and were replaced. As

Mr. Ritchie notes, under 18 U.S.C. § 3599(e), appointed counsel in a federal habeas capital case

"shall represent the defendant throughout every subsequent stage of available judicial proceedings,

including . . . all available post-conviction process, together with applications for stays of

execution and other appropriate motions and procedures . . . ." However, this open-ended

representation may be terminated if counsel is "replaced by similarly qualified counsel upon the

attorney's own motion or upon motion of the defendant . . . ." Id. (emphasis added).

The post-Martinez cases upon which Mr. Ritchie relies, regarding replacement of

"conflicted" counsel under that case's rule, were instances in which there was a motion to replace

counsel. In Christeson v. Roper, 574 U.S. 373, 377 (2015), the Supreme Court held that a § 3599(e)

motion to substitute counsel in a federal habeas proceeding should be granted when it is in the

interests of justice to do so. The Court remanded for substitute counsel to be appointed for a § 2254

capital petitioner, several years after his habeas petition had been dismissed, for purposes of filing

a Rule 60(b) motion to set aside the judgment. Id. at 380. The Court noted, in part, that substitute

counsel had only requested 90 days to file such a motion, and that the petitioner would face "a host

of procedural obstacles to having a federal court consider his habeas petition." Id. And, in fact, on

remand his Rule 60(b) motion filed by substitute counsel was denied. Christeson v. Griffith, 860

F.3d 585 (8th Cir. 2017).

In Mendoza v. Stephens, 783 F.3d 203 (5th Cir. 2015), the court granted the habeas

petitioner's motion for supplemental counsel under § 3599 to address Martinez-Trevino claims. In

Juniper v. Davis, 737 F.3d 288, 290 (4th Cir. 2013), the court held that "if a federal habeas

petitioner is represented by the same counsel as in state habeas proceedings, and the petitioner

requests independent counsel in order to investigate and pursue claims under Martinez in a state

where the petitioner may only raise ineffective assistance claims in an 'initial-review collateral

proceeding,' qualified and independent counsel is ethically required." (emphasis added). In

Battaglia v. Stephens, 824 F.3d 470, 473-74 (5th Cir. 2016), the court held that a motion to

substitute counsel under § 3599 should have been granted.

Mr. Ritchie also cites to Maples v. Thomas, 565 U.S. 266 (2012), decided before Martinez.

In that case, the Supreme Court held that a habeas petitioner had effectively been "abandoned" by

counsel, where none of his three appointed attorneys were actively representing him during the

time period when he needed to file a state-level appeal, resulting in forfeit of the appeal. Therefore,

there was "cause" to excuse procedural default of the petitioner's claims. Id. at 288-89. "[A] client

cannot be charged with the acts or omissions of an attorney who abandoned him." Id. at 283.

Specifically, two of his attorneys of record left the law firm where they worked and took other

employment that precluded them from representing the petitioner. Id. at 283-84. His third attorney

had told the other two attorneys that he would not handle any substantive issues in the case and

had only "minimal participation" in the case. Id. at 287. Under these circumstances, the petitioner

was "left without any functioning attorney of record." Id. at 288. See also Mackey v. Hoffman, 682

F.3d 1247, 1253 (9th Cir. 2012) ("when a federal habeas petitioner has been inexcusably and

grossly neglected by his counsel in a manner amounting to attorney abandonment in every

meaningful sense that has jeopardized the petitioner's appellate rights, a district court may grant

relief pursuant to Rule 60(b)(6).").

Mr. Ritchie does not cite any authority for the proposition that the mere possibility of a

Martinez-Trevino conflict of interest results in an automatic or constructive "abandonment" of a

habeas petitioner by counsel. And, especially with respect to Mr. Westerfeld, there is no indication

that he did in fact abandon Mr. Ritchie.5 After this court denied the thoroughly-briefed § 2254

petition, Mr. Westerfeld filed a timely motion to amend judgment under Fed. R. Civ. P. 59,

followed by a timely request for a certificate of appealability, followed by a timely appeal to the

Seventh Circuit (including a request for rehearing en banc), followed by a timely petition for

certiorari to the Supreme Court. This was not abandonment. See In re Edwards, 865 F.3d 197, 206

(5th Cir. 2017) ("It is difficult to see abandonment here, where [habeas counsel] missed no

5 The court need not address whether Mr. Cleary's leaving private practice and beginning work at IFCD

during the pendency of these proceedings resulted in "abandonment" of Mr. Ritchie. It is clear that

Mr. Westerfeld, at least, remained active in representing Mr. Ritchie.

deadlines and filed substantive arguments."). Nor does Mr. Ritchie cite any authority for the

proposition that the mere possibility of a Martinez-Trevino conflict of interest should result in a

post-judgment sua sponte disqualification and substitution of habeas counsel. Also, it does not

appear Martinez-Trevino automatically precludes state collateral-review counsel and federal

habeas counsel from being one and the same, even if a trial counsel ineffectiveness claim had been

raised in state court.

By contrast, in Clark, the 5th Circuit addressed a scenario very much like that before the

court today – except that the time frame involved was much shorter.6 Specifically, in that case the

petitioner, who had been sentenced to death in Texas, was represented by the same attorney in

both state collateral proceedings and in the subsequent § 2254 proceedings. In part, the § 2254

petition challenged trial counsel's effectiveness. After the § 2254 petition was denied and after the

Supreme Court denied certiorari, habeas counsel filed a motion to withdraw, which was granted,

and new counsel was appointed. Counsel filed a motion to set aside under Rule 60(b)(6). This

motion was filed approximately 16 months after the Supreme Court decided Trevino, directly

applying the Martinez framework to Texas, and a year after the petitioner had been appointed a

new attorney in ongoing state-court proceedings. The motion was based on the original habeas

attorney's alleged conflict of interest under Trevino and that he had been ineffective during the

habeas proceedings.

Although the Fifth Circuit held that a Rule 60(b)(6) motion was appropriate in this context,

as opposed to seeking permission to file a successive habeas petition, the appellate court held that

the motion nonetheless was not filed within a reasonable time and was properly denied by the

6 In fact, the central issue in Clark also was whether the petitioner suffered from FASD, and whether trial

counsel was ineffective for not investigating and presenting evidence to that effect during the penalty phase

of the petitioner's trial. Clark, 850 F.3d at 777.

district court. Clark, 850 F.3d at 781-82. The court stated that "the touchstone for Clark's Rule

60(b) motion, which is that [habeas counsel] had a conflict of interest, came into existence on May

28, 2013, the date of the Trevino decision." 850 F.3d at 781.

Next, it agreed with the district court that "Rule 60(c) timeliness requirements are not reset

every time a litigant obtains a new attorney." Id. at 782. "The Trevino decision had been extant for

twelve months, since May 2013, by the time that Clark asked the federal district court to substitute

new counsel for [habeas counsel]. Clark's Rule 60(b) motion did not explain why he did not seek

new counsel in the federal district court sooner than he did. The date that the federal district court

permitted new counsel to appear should not be the starting point for measuring timeliness of the

Rule 60(b)(6) motion in this case." Id. The court further observed that a nine-month period during

this time, when state attorneys were pursuing state habeas relief on the petitioner's behalf, was not

excluded from the Rule 60(b)(6) calculus. Id. at 783. "Clark could have made concurrent state and

federal filings . . . ." Id. Finally, the court adopted its reasoning from an earlier unpublished case,

which rejected the proposition that "as a long as a conflicted attorney remained his counsel, there

were no grounds for filing a Rule 60(b) motion . . . ." Id. (citing In re Paredes, 587 F. App'x 805

(5th Cir. 2017)).

This court finds the Fifth Circuit's reasoning to be sound. Otherwise, Martinez-Trevino

could be utilized to indefinitely extend the deadline for filing a Rule 60(b)(6) motion to vacate a

habeas judgment, so long as it can be framed as a challenge to habeas counsel's "conflict of

interest" in relation to an ineffective assistance claim. Thus, here, the court concludes that the

beginning point for calculating the timeliness of Mr. Ritchie's Rule 60(b)(6) motion is no later than

the date the Seventh Circuit decided Brown, definitively applying Martinez-Trevino to Indiana,

which was February 1, 2017. Alternatively, the time period might have begun to run when the

Supreme Court denied certiorari in this case, on April 17, 2017. Either way, this motion was filed

over eight years later. That is extremely belated and unreasonable.

Counsel for Mr. Ritchie suggest that, in part because of his FASD and child lead poisoning,

he is "cognitively impaired" and could not have been expected to request substitution of counsel,

or take any action on his own behalf, any earlier than what actually occurred here. Dkt. 74 at 9.

The court stresses that there is no argument before the court that his execution would violate the

standards of Atkins v. Virginia, 536 U.S. 304 (2002) (holding that execution of "mentally retarded"

persons is barred by the Eighth Amendment). Nor is there any argument that Mr. Ritchie lacked

competency to be tried or to assist in his own defense at any stage of the proceedings under Dusky

v. United States, 362 U.S. 402 (1960), and its progeny. Courts regularly place some onus on pro

se habeas petitioners to be aware of the law and legal procedures. Namely, "ignorance of the law"

does not excuse late or non-compliant habeas filings unless a state has created or maintained an

impediment to a petitioner's acquiring necessary information. See Famous v. Fuchs, 38 F.4th 625,

631 (7th Cir. 2022). There is no indication or allegation of such an impediment being placed in

Mr. Ritchie's way. Counsel suggests that Mr. Ritchie could not have filed anything on his own

behalf so long as Mr. Cleary and Mr. Westerfeld were still his attorneys of record, but 18 U.S.C.

§ 3599(e) clearly would have allowed him or someone on his behalf to file a motion to substitute

counsel.

Alternatively, the court will consider the possibility that the Rule 60(c) "reasonable time"

limit did not begin to run until new counsel were appointed for Mr. Ritchie in this court in mid-

October 2024. Counsel urge that due to the complexity of capital litigation generally and of

Mr. Ritchie's case in particular, including obtaining expert opinions on his behalf, they could not

have reasonably been expected to file the motion to set aside any earlier than they did. Under the

circumstances, the court concludes that they unreasonably delayed filing it.

Under some, possibly even many, circumstances, a delay of approximately seven months

from time of appointment to time of filing a Rule 60(b) motion in a capital case would be

reasonable. See, e.g., Bynoe v. Baca, 966 F.3d 972, 981 (9th Cir. 2020) ("A seven-month delay is

well within the timeframe considered [to be reasonable] and the presumptive one-year timeframe

suggested by . . . Rule [60(b)]"). However, Bynoe also noted that the Rule 60(b) motion in that

case, based on a change in decisional law, was filed by counsel just two months after their

appointment. Id. at 981-82.

Here, counsel are experienced capital litigation defenders. They would not have been

"starting from scratch" when it came to assessing Mr. Ritchie's case.7 The court also finds it highly

relevant that the arguments they present to this court are almost identical to the arguments

presented by the State PD at the beginning of November 2024 in support of Mr. Ritchie's being

allowed to pursue successive PCR. Counsel here managed to obtain two additional and more

thorough expert reports than the State PD had at the time of their filing, which were not completed

until early May.8 Still, the court cannot discern why a motion to vacate was not filed until one

week ago. Granted, the Indiana Supreme Court did not definitively set Mr. Ritchie's execution date

until mid-April. But, the necessary information and legal arguments that counsel now presents to

the court, filed in a very limited time frame before his execution date, could have been filed much

7 The court suspects some investigation into Mr. Ritchie's case already occurred before counsel formally

appeared, volunteering to represent him.

8 The court questions, but need not definitively decide, whether such evidence even would be admissible in

a federal habeas proceeding, pursuant to Shinn v. Ramirez, 596 U.S. 366 (2022) (holding that when

reviewing Martinez-Trevino habeas claims, a federal court generally cannot consider any evidence outside

the original state-court records).

earlier. There also is no apparent reason why concurrent proceedings could not have been ongoing

before both this court and the Indiana Supreme Court. Under the particular facts and circumstances

here, the approximately seven months between appointment of counsel and the filing of the 60(b)

motion was not a "reasonable" amount of time. See Tamayo v. Stephens, 740 F.3d 986, 991 (5th

Cir. 2014) (holding Rule 60(b) motion in capital case, filed nearly eight months after change in

decisional law and two days before execution date, was not filed with a "reasonable time"); but

see In re Johnson, 935 F.3d 284, 289 (5th Cir. 2019) (noting district court's finding that 60(b)

motion filed six months after appointment of new counsel for capital habeas petitioner was timely);

Ramirez v. Davis, 780 F. App'x 110, 117 (5th Cir. 2019) (stating, in ruling on certificate of

appealability request, that "reasonable jurists" could conclude that 18-month delay in filing Rule

60(b)(6) motion after new counsel was appointed was not unreasonable, where state agreed to at

least some of the delay).

In sum, the court concludes Mr. Ritchie has not made a "strong showing" that his Rule

60(b)(6) motion was filed with a "reasonable time" and, therefore, he has only a low likelihood of

success on the merits of that motion. Specifically, the court finds there was no impediment to Mr.

Ritchie seeking substitution of counsel well before October 2024, making the filing of this motion

several years late. Alternatively, even if "reasonable time" frame for filing this motion began in

October 2024, under the specific facts and circumstances here, it was untimely.

B. Irreparable Injury and the Public Interest

The court does not accept the State's argument that Mr. Ritchie has not adequately shown

he would suffer irreparable injury in the absence of a stay. Death most assuredly is irreparable

injury. But both the government and the friends and family of Officer Toney "'have an important

interest in the timely enforcement of a sentence.'" Bucklew v. Precythe, 587 U.S. 119, 149 (2019)

(quoting Hill, 547 U.S. at 584).

The court also believes it must be cautious in not allowing a Rule 60(b)(6) motion to

swallow the clear deadlines for habeas proceedings under the Anti-Terrorism and Effective Death

Penalty Act ("AEDPA"). One of AEDPA's purposes is to "reduce delays in the execution of state

and federal criminal sentences, particularly in capital cases." Woodford v. Garceau, 538 U.S. 202,

206 (2003). AEDPA's general one-year limitations period for filing a habeas corpus petition "quite

plainly serves the well-recognized interest in the finality of state court judgments. . . . It reduces

the potential for delay on the road to finality by restricting the time that a prospective federal

habeas petitioner has in which to seek federal habeas review." Id. The court's granting of a motion

to vacate at this point in time would be inconsistent with AEDPA's underlying purposes. The

governmental interest in finality, and in recognizing federal courts' limited ability to interfere in

state court proceedings under AEDPA, weighs in favor of denying Mr. Ritchie's stay request.

The court also notes that in Buck, the Supreme Court held that Rule 60(b)(6) would be an

appropriate basis for relief from a previous denial of a habeas corpus petition, where there were

sufficient allegations of Martinez-Trevino ineffective assistance of counsel in addressing the

prosecution's "odious" use of race during the punishment phase of a capital trial. Buck, 580 U.S.

at 124. The claims Mr. Ritchie presents do not raise the same "odious" racial discrimination

concerns, or any discrimination concerns.

Finally, the court acknowledges the thoughtful opinions of Indiana Supreme Court Chief

Justice Rush and Justice Goff and their strong belief that Mr. Ritchie should have been allowed to

pursue a successive PCR petition in state court. However, to be given permission to pursue

successive PCR, an Indiana prisoner need only show "a reasonable possibility that the petitioner

is entitled to post-conviction relief." Ind. Post-Conviction Relief R. 1(12). Importantly, unlike the

strict time limits prescribed for both initial habeas corpus proceedings and motions for relief from

judgment in federal court, there is no time limit for seeking permission to file a successive PCR

petition under Indiana law. This court must honor and enforce the time limits imposed on it by

federal law.

The court does not lightly undertake this ruling. "[I]n a human institution there is always

some risk of error. All we can do is to strive to minimize it and to follow the law to the best of our

ability." Purkey v. United States, 964 F.3d 603, 616 (7th Cir. 2020). Given the low likelihood of

success on Mr. Ritchie's belated Rule 60(b)(6) motion and balancing the equities in favor of the

finality of these habeas proceedings, the court determines that Mr. Ritchie's motion to stay his

execution must be DENIED. Dkt. [65].

III. Certificate of Appealability

It is not entirely clear that Mr. Ritchie would be required to obtain a certificate of

appealability from this court in order to directly appeal this ruling to the Seventh Circuit. 28 U.S.C.

§ 2253(c)(1)(A) provides that "[u]nless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals from the final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a State

court." In one sense, the court's ruling is not technically "final," but of course it is practically

speaking. "To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing

of the denial of a constitutional right, [which] includes showing that reasonable jurists could debate

whether the petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473,

483-84 (2000) (cleaned up). The court concludes this standard has been met here, and to the extent

a certificate of appealability may be necessary, it GRANTS such certificate.

Also, to the extent this is an interlocutory ruling, the court believes it would be one over

which the Court of Appeals would have jurisdiction under 28 U.S.C. § 1292(a)(1), because it is in

effect the denial of an injunction. Alternatively, the court would certify this order as an appropriate

immediately appealable order under 28 U.S.C. § 1292(b).

IT ISSO ORDERED.

Date: 5/17/2025

RICHAR AL. ¥9 UNG, JUDGE

United StatesBxstrict Court

Distribution: Southern District of Indiana

Tyler G. Banks

INDIANA ATTORNEY GENERAL

tyler.banks@atg.in.gov

Daniel Lawless

FEDERAL COMMUNITY DEFENDER OFFICE — E.D. OF PENNSYLVANIA

daniel lawless@fd.org

Shawn Nolan

FEDERAL COMMUNITY DEFENDER OFFICE — E.D. OF PENNSYLVANIA

shawn_nolan@fd.org

Caroline Templeton

INDIANA ATTORNEY GENERAL

caroline.templeton@atg.in.gov

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