Arthur Tyler v. Carl Anderson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0074p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ARTHUR TYLER, ┐

Petitioner-Appellant, │

│

│ No. 13-4036

v. │

>

│

CARL S. ANDERSON, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland

No. 1:96-cv-01881—David A. Katz, District Judge.

Argued: January 29, 2014

Decided and Filed:April 15, 2014

Before: GIBBONS, ROGERS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Alan C. Rossman, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL

HABEAS UNIT, Cleveland, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Alan C. Rossman,

Vicki Ruth Adams Werneke, Lori B. Riga, OFFICE OF THE FEDERAL PUBLIC

DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, for Appellant. Charles L. Wille,

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

1

No. 13-4036 Tyler v. Anderson Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Arthur Tyler, an Ohio inmate sentenced to

death for the 1983 murder of Sander Leach, filed in the district court in 2013 an amended motion

for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). The judgment

from which Tyler sought relief was entered in 2002. In his amended motion, Tyler requested

relief from the denial of his petition for a writ of habeas corpus, alleging the district court’s

failure to adjudicate two subclaims presented in his petition and his habeas counsel’s inexcusable

neglect to alert the district court to its alleged omission. The district court denied Tyler’s motion

but granted a certificate of appealability. For the following reasons, we affirm.

I.

The facts underlying Tyler’s conviction are fully recounted in the Ohio Supreme Court’s

decision on direct appeal. See State v. Tyler, 553 N.E.2d 576, 580–82 (Ohio 1990), cert. denied,

498 U.S. 951 (1990). We have previously summarized those facts. See Tyler v. Mitchell,

416 F.3d 500, 501 (6th Cir. 2005). A very brief summary will suffice here. On March 12, 1983,

Sander Leach was shot to death in the van from which he sold produce at the corner of East 66th

Street and Zoeter Avenue in Cleveland. Both Tyler and Leroy Head were involved. A

Cuyahoga County grand jury indicted Tyler and Head on one count of aggravated murder and

one count of aggravated robbery. Head pled guilty to aggravated murder and aggravated

robbery, and the death-penalty specification was dismissed. Tyler went to trial. He was

convicted of aggravated murder and sentenced to death. State v. Tyler, No. 47533, 1984 WL

6408, at *4 (Ohio Ct. App. Dec. 27, 1984). His conviction was reversed on appeal. Id. at *19.

Tyler was retried and convicted of all charges. Tyler, 553 N.E.2d at 582. At both trials, Head

testified against Tyler. Id. at 580−82, 588−89; Tyler, 1984 WL 6408, at *2.

On Monday afternoon, December 16, 1985, Tyler’s case was submitted to the jury for

penalty-phase deliberations. On Tuesday afternoon, after a full day of deliberation, the jury

presented the court with a question:

No. 13-4036 Tyler v. Anderson Page 3

If one group of jurors is positive that the aggravating factors outweigh the

mitigating factors and wishes to recommend the death penalty, but the remaining

jurors are just as positive that the mitigating factors are strong enough not to

recommend the death penalty—and neither group is willing to change that

decision, what is the proper procedure to follow at that point?

The court responded:

Well, we can’t help you a whole lot on that. I’m going to read something

to you that we can do. It is not going to solve any of your problems, but it may

give you some cause to consider.

Ladies and gentlemen of the jury, the Court is advised that you have

indicated difficulty in reaching the verdict. Now the Court suggests to you that

since the trial of this case means a great deal to the parties and to the public and

has been expensive in time, efforts and money, the Court urges you to make every

reasonable effort to agree on a verdict. You may consider that this case must at

some time be decided and that you were selected in the same manner and from the

same sources from which any future jury must be selected. There is no reason to

suppose that the case would ever be submitted to twelve individuals more

intelligent, more impartial or more competent to decide it, or that additional

evidence will be produced by either side. It is your duty to make every reasonable

effort to decide the case if you can conscientiously do so.

The Court instructs you to return to the jury room and continue your

deliberations. So, that is it. I mean, what it says essentially, is that you know—I

mean, you can do it as well as anybody. You can just go back there and

deliberate.

The next morning, December 18, 1985, Tyler was again sentenced to death. Tyler, 553 N.E.2d at

582. Tyler’s conviction and sentence were affirmed on appeal. Id. at 597. Ohio appellate courts

rejected Tyler’s application for delayed reconsideration, State v. Tyler, 643 N.E.2d 1150, 1150

(Ohio 1994), and post-conviction relief, State v. Tyler, No. 71785, 1998 WL 598531, at *1 (Ohio

Ct. App. Sept. 10, 1998); State v. Tyler, 704 N.E.2d 579 (Ohio 1999) (Table).

On June 11, 1999, Tyler petitioned for a writ of habeas corpus under 28 U.S.C. § 2254.

His petition set forth sixty-four grounds for relief, each containing many subparts, two of which

are pertinent to this appeal. In his twenty-second claim for relief, entitled “State’s Failure to

Disclose,” Tyler argued that his conviction and sentence are void because the State of Ohio

failed to disclose to trial counsel information material to the guilt phase of the proceedings,

specifically that Head received additional sentencing consideration for testifying at Tyler’s

No. 13-4036 Tyler v. Anderson Page 4

second trial and that Head was threatened with adverse consequences at the second trial if he did

not testify against Tyler. In his twenty-fourth claim for relief, entitled “Errors in Mitigation

Phase Charges and Procedures,” Tyler argued that his conviction and sentence are void because

the trial court improperly charged the jury during deliberation. Anderson filed a return of writ.

On April 5, 2000, the district court granted leave for Tyler’s counsel to take Head’s

deposition. When Tyler’s counsel deposed Head, however, Head invoked the privilege against

self-incrimination. William Mason, Cuyahoga County Prosecutor, refused to extend immunity to

Head in exchange for his testimony. Tyler then filed a motion in federal court to compel Head’s

testimony, which the district court denied.

On June 6, 2001, Tyler filed a traverse to Anderson’s return of writ. In the traverse,

Tyler reiterated the twenty-second and twenty-fourth claims for relief. Anderson filed a response

to Tyler’s traverse. On May 20, 2002, the district court denied Tyler’s petition for a writ of

habeas corpus and granted a certificate of appealability on two issues: the sufficiency of the

evidence to support the conviction and death sentence and Tyler’s right to waive mitigating

evidence other than his own unsworn statement.

On May 25, 2002, Tyler sent a letter to his habeas counsel, informing his counsel that the

district court’s opinion failed to address his subclaim alleging an improper jury instruction

during deliberation. Tyler wrote as follows:

And I don’t know if you know it or not? But he never answered my deadlock

issue claim, and we have to get back with him on that because that is the key the

only key I ever banked on, cause when that jury deadlocked with no one willing

to change their decision every thing was suppose to end right their except their

choice of 20 or 30 years. It was illegal for them to give me the death penalty after

that. The instruction he gave, “Allen charge” towards guilt and innocence only

compounded the error[—]black letter law that they put in place to legitimize this

death penalty.

Tyler requested that his habeas counsel alert the district court to its omission. Tyler reiterated

this request in letters to his habeas counsel dated June 16, 2002, and May 12, 2004.

On June 4, 2002, Tyler filed a motion to alter or amend the judgment pursuant to Federal

Rule of Civil Procedure 59 and to stay his execution. In this motion, Tyler claimed that the

No. 13-4036 Tyler v. Anderson Page 5

district court failed to allow discovery or to hold evidentiary hearings so that Tyler could

discover information about Head that was never provided to defense counsel. Tyler did not,

however, reassert his claim that the district court issued a coercive jury instruction during the

penalty phase. The district court denied the motion. On August 14, 2002, Tyler appealed the

district court’s denial of his petition for a writ of habeas corpus, requesting that we expand the

certificate of appealability to include numerous additional grounds for relief. In his request to

expand the certificate of appealability, Tyler reasserted his claim that the prosecution failed to

disclose that Head received additional sentencing consideration for testifying at the second trial.

Tyler did not reassert the claim of judicial error in the jury deliberation instruction but argued in

the request that his trial counsel was ineffective when counsel failed to object to the court’s

allegedly improper instruction to the jury during deliberation, a claim not asserted in Tyler’s

habeas petition. Tyler’s request for an expanded COA did not mention the district court’s failure

to address either claim. This court denied Tyler’s request on December 11, 2003, and the United

States Supreme Court denied Tyler’s petition for a writ of certiorari. See Tyler v. Mitchell,

416 F.3d 500, 502 (6th Cir. 2005).

On July 20, 2005, we affirmed the district court’s denial of habeas relief. Tyler, 416 F.3d

at 501. The Sixth Circuit denied Tyler’s request for rehearing and for rehearing en banc, and the

United States Supreme Court denied Tyler’s petition for a writ of certiorari. Tyler v. Anderson,

547 U.S. 1074 (2006).

After his federal habeas litigation came to a close, Tyler returned to state court. He filed

a complaint for writ of mandamus, requesting that the court order former Attorney General Jim

Petro and Cuyahoga County Prosecutor William Mason to grant immunity to Leroy Head. The

common pleas court dismissed the request, and the state court of appeals affirmed. Tyler v.

Petro, No. 88128, 2007 WL 766171, at *1 (Ohio Ct. App. Mar. 15, 2007) (unpublished), juris.

denied, 873 N.E.2d 1315 (Ohio 2007) (Table), cert. denied, 553 U.S. 1055 (2008). Tyler,

proceeding pro se, also unsuccessfully attempted to reinstate his state post-conviction petition.

See State v. Tyler, 875 N.E.2d 628 (Ohio 2007) (Table).

On February 21, 2008, continuing to proceed pro se, Tyler filed a notice of intent to file a

second petition for a writ of habeas corpus. The district court transferred the case to this court

No. 13-4036 Tyler v. Anderson Page 6

for consideration of Tyler’s request to file a second or successive habeas petition under 28

U.S.C. § 2244(b). Tyler then filed a pro se motion for authorization to file a second or

successive habeas petition with a copy of his original petition. We denied Tyler’s request on

June 25, 2008. In re Arthur Tyler, No. 08-3251 (6th Cir. June 25, 2008) (order denying

authorization to file successive habeas petition).

On September 13, 2012, Tyler moved in district court for the appointment of the Capital

Habeas Unit of the Office of the Federal Public Defender for the Northern District of Ohio to act

as advisory counsel for his clemency proceedings. The district court granted that motion. On

October 5, 2012, the Ohio Supreme Court set Tyler’s execution date for May 28, 2014.

Upon review of the record, advisory counsel noticed that the deliberation instruction

subclaim had not been explicitly addressed in the district court’s order denying Tyler’s petition.

In this subclaim, Tyler alleged that the penalty-phase jury instruction during deliberation coerced

the jury’s sentencing determination in violation of the Sixth, Eighth, and Fourteenth

Amendments. As a result of this observation by counsel, Tyler moved for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b)(6) on February 28, 2013. Upon further

review, Tyler perceived that another subclaim was unaddressed by the district court. In that

subclaim, Tyler alleged that the state failed to disclose that Head was threatened with adverse

consequences if he did not testify against Tyler. As amended, Tyler’s Rule 60(b)(6) motion

argued that the district court should grant relief from its 2002 order denying Tyler’s original

federal habeas petition because it failed to adjudicate these two subclaims. The amended motion

also asserted that Tyler should be relieved from the district court’s denial of his original habeas

petition because of his original habeas counsel’s “inexcusable neglect” to alert the district court

to its failure to address the two subclaims.

On August 5, 2013, the district court denied Tyler’s Rule 60(b)(6) motion. Tyler v.

Anderson, 1:96-cv-1881, 2013 WL 3992590, at *1 (N.D. Ohio Aug. 5, 2013). It ruled that

Tyler’s submission that it did not resolve two subclaims is a true Rule 60(b) motion, not a

successive habeas petition barred by 28 U.S.C. § 2254(b). Id. at *4. The district court held that

Tyler’s motion for relief from judgment was cognizable under Rule 60(b)(1), encompassing

mistakes of the court, rather than the catch-all provision set forth in Rule 60(b)(6). Id. at *5−*6.

No. 13-4036 Tyler v. Anderson Page 7

The district court determined that the gravamen of Tyler’s motion was the court’s alleged failure

to address two subclaims, a basis for relief falling squarely within a plain reading of Rule

60(b)(1). Id. at *5. The district court also determined that Rule 60(b)(1) applies because Tyler

was partly to blame for the delay in filing the motion. Id. at *6. The court noted that subsection

(b)(6) is applicable only in extraordinary circumstances, and “‘[i]f a party is partly to blame for

the delay, relief must be sought within one year under subsection (b)(1) and the party’s neglect

must be excusable.’” Id. (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 393 (1993)). The district court found that Tyler was partly to blame for the delayed

60(b) motion because Tyler was aware of the court’s omission since the district court issued the

denial of his petition in May 2002 and, therefore, could have filed his motion pro se with the

court. Id.

Separately, the district court rejected the alleged “inexcusable neglect” of Tyler’s habeas

counsel as a basis for relief, holding that the deficient performance of habeas counsel cannot be

the basis for granting a Rule 60 motion and reopening a habeas case. Id. The district court

observed that, in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), codified as amended at 28 U.S.C. § 2241 et seq., § 2254(i) forecloses the reopening of

a habeas case because of the deficient performance of habeas counsel. Id. The district court then

noted that in Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005), and Brooks v. Bobby,

660 F.3d 959, 963 (6th Cir. 2011), this court expressly rejected Rule 60(b) motions filed by

habeas petitioners on the grounds of deficient performance of habeas counsel. Id. Accordingly,

the district court construed the entirety of Tyler’s motion as governed by Rule 60(b)(1). Id. at

*7.

The district court then held that Tyler’s motion is barred from review by Rule 60(c)(1),

which requires that parties file motions for relief from judgment for the reasons set forth in Rule

60(b)(1)−(3) “no more than a year after the entry of the judgment or order or the date of the

proceeding.” Id. Tyler’s Rule 60(b) motion was filed more than ten years after the district court

denied his petition for a writ of habeas corpus. The district court noted that Tyler had both

notice and reasonable opportunities to alert the court to his allegedly unadjudicated subclaims: he

could have done so through a Rule 59(e) motion, a timely Rule 60(b)(1) motion, or on appeal,

No. 13-4036 Tyler v. Anderson Page 8

through a motion for a certificate of appealability. See id. Because the district court held that

Tyler failed to demonstrate grounds for relief under Rule 60(b)(6) and that relief under Rule

60(b)(1) was time-barred, the district court denied his motion for relief from judgment. Id.

Tyler moved for a certificate of appealability pursuant to 28 U.S.C. § 2253(c), which the

district court granted. The district court found that reasonable jurists could debate whether the

fundamental basis of Tyler’s Rule 60(b) motion is the district court’s alleged failure to adjudicate

two subclaims asserted in his petition and, consequently, whether Tyler’s motion for relief is

cognizable under subsection (b)(1). The court also found that reasonable jurists may find that the

Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), abrogated Post’s ruling

that 28 U.S.C. § 2254(i) “expressly bars relief grounded on claims of incompetent or ineffective

counsel in federal post-conviction proceedings,” including Rule 60(b) motions premised on such

claims. See Post, 422 F.3d at 423.

After the denial of Tyler’s Rule 60(b) motion, but before the grant of the certificate of

appealability, Tyler’s original habeas counsel moved to withdraw, taking “full responsibility for

the failure to bring to the Court’s attention earlier and in a more timely fashion” the issues

brought to light by the advisory counsel. The district court granted that motion, and the Capital

Habeas Unit became lead counsel. Tyler timely appealed.

II.

As a threshold matter, we must decide whether the district court had the authority to

consider Tyler’s Rule 60(b) motion. Post, 422 F.3d at 422. A motion under Rule 60(b) may be

treated as a second or successive habeas petition if necessary to enforce the requirements of the

AEDPA. See Gonzalez v. Crosby, 545 U.S. 524, 531−32 (2005). If a 60(b) motion were found

to be a second or successive habeas petition, then we would apply 28 U.S.C. § 2244(b), which

presents a bar to the motion. See id. at 531; Post, 422 F.3d at 425. A state prisoner may not file

a second or successive habeas corpus petition until the court of appeals issues an order

authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A).

For purposes of § 2244(b), “an ‘application’ for habeas relief is a filing that contains one

or more ‘claims.’” Gonzalez, 545 U.S. at 530. A motion contains a “claim,” and is thus a

successive habeas petition, if it asserts a “federal basis for relief from the state court’s judgment

No. 13-4036 Tyler v. Anderson Page 9

of conviction,” id., by “seek[ing] to add a new ground for relief” or “attack[ing] the federal

court’s previous resolution of a claim on the merits,” id. at 532. For present purposes, the term

“on the merits” refers “to a determination that there exist or do not exist grounds entitling the

petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 532 n.4. “A habeas

petitioner’s filing that seeks vindication of such a claim is, if not in substance a ‘habeas corpus

application,’ at least similar enough that failing to subject it to the same requirements would be

‘inconsistent with’ the statute.” Id. at 531 (citing 28 U.S.C. § 2244 Rule 11).

By contrast, a motion does not attack a determination on the merits, and is thus not a

successive habeas petition, when it “merely asserts that a previous ruling which precluded a

merits determination was in error—for example, a denial for such reasons as failure to exhaust,

procedural default, or statute-of-limitations bar.” Id. at 532 n.4. Further, a motion does not

present a claim when it does not attack “the substance of the federal court’s resolution of a claim

on the merits, but some defect in the integrity of the federal habeas proceedings,” id. at 532, such

as fraud on the federal habeas court, id. at 532 n.5. In short, a motion is not a successive habeas

petition “if it does not assert, or reassert, claims of error in the movant’s state conviction.” Id. at

538.

The portion of Tyler’s amended Rule 60(b) motion relating to Head is a successive

habeas petition forbidden by the AEDPA-amended provisions of 28 U.S.C. § 2244(b). In

evaluating whether Tyler’s Rule 60(b) motion is a successive habeas petition, the focus of our

inquiry is “on whether the Rule 60(b) motion contains a claim.” Mitchell v. Rees, 261 F. App’x

825, 829 (6th Cir. 2008).

The claim that the state failed to disclose consideration given to Head was presented in

Tyler’s habeas petition. Contrary to Tyler’s contention, however, the district court did not fail to

adjudicate it. In its order denying Tyler’s petition for habeas relief, the district court held

[it] is here that Tyler’s Brady claims also fail. There is no evidence that the

prosecution improperly failed to disclose a pre-sentencing “deal” with Head. To

the contrary, evidence adduced in habeas depositions suggest that there was no

sentencing “deal” struck with Head, that he was given sentencing consideration

only after he testified truthfully at Tylerl’s [sic] trial. . . . even were the Court to

extricate Head’s testimony from the trial evidence, there nonetheless would be

ample evidence providing confidence in the trial’s outcome.

No. 13-4036 Tyler v. Anderson Page 10

Tyler’s contention that the district court failed to adjudicate his twenty-second claim is therefore

unsustainable. “While the analysis could have been stated in more detail (thus lengthening an

already long opinion), the district court analyzed the underlying claims in order to reach its

conclusion.” Henderson v. Collins, 184 F. App’x 518, 523 (6th Cir. 2006). This claim was

previously resolved on the merits.

Whether the district court failed to adjudicate on the merits the deliberation-jury-

instruction subclaim is a closer issue. In its opinion denying habeas relief, the district court

considered Tyler’s twenty-fourth claim for relief, entitled “Errors in Mitigation Phase Charges

and Procedures,” alongside his twenty-fifth, twenty-sixth, and fifty-second claims, as a group of

claims alleging judicial error in the sentencing phase of Tyler’s trial. The district court rejected

the set of these four claims and thus rejected the jury-deliberation-instruction subclaim, which

formed a part of the twenty-fourth claim. Even though the district court did not explicitly reject

Tyler’s jury-deliberation-instruction subclaim, it nevertheless could be argued that, because the

district court rejected all of Tyler’s claims, it determined that this particular subclaim did not

entitle Tyler to habeas relief under 28 U.S.C. § 2254(a), thus resolving it on the merits. See

Johnson v. Williams, 133 S. Ct. 1088, 1100 (2013) (Scalia, J., concurring) (“An ‘adjudication on

the merits’ is ‘best understood by stating what it is not: it is not a resolution of a claim on

procedural grounds.’” (quoting Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005)); cf. Johnson,

133 S.Ct. at 1096 (majority op.) (“When a state court rejects a federal claim without expressly

addressing that claim, a federal habeas court must presume that the federal claim was adjudicated

on the merits.”); Gonzalez, 545 U.S. at 532 n.4.

Nevertheless, there may be a contrary view. In Spitznas v. Boone, 464 F.3d 1213 (10th

Cir. 2006), the Tenth Circuit did not follow the approach of concluding that the summary

rejection of all claims necessarily means that a claim, which was rejected but not explicitly

discussed by the district court, is nevertheless barred by § 2244(b). Instead, the Spitznas court,

citing Gonzales, took the view that a contention that the district court failed to consider a habeas

claim was a true Rule 60(b) claim asserting a defect in the integrity of the federal habeas

proceedings and was not a second or successive habeas petition. See 464 F.3d at 1224−25 (citing

Gonzalez, 545 U.S. at 532−33). Given the reasonableness of the difference between the views

No. 13-4036 Tyler v. Anderson Page 11

regarding what constitutes a second or successive habeas petition and our general reluctance to

create a split with another circuit when other grounds of resolution exist, we will assume,

without deciding, that the deliberation jury-instruction-claim presents a true Rule 60(b) motion.

Because Tyler’s argument regarding Head clearly challenges the district court’s

resolution of a claim on the merits and therefore was a second or successive habeas petition, the

proper course was for the district court to transfer the case to this court for certification. See In

re Bowling, 422 F.3d 434, 440 (6th Cir. 2005). Treating the appeal as a request for certification,

we deny it. This court cannot grant permission to file a second § 2244 motion unless the

applicant makes a prima facie showing that the application satisfies the requirements of

§ 2244(b). 28 U.S.C. § 2244(b)(3)(C). A claim presented in a second or successive habeas

corpus application shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as

a whole, would be sufficient to establish by clear and convincing evidence that,

but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). Because Tyler’s motion does not make a prima facie showing that he

satisfies these requirements, he is not entitled to file a second or successive habeas petition

raising the Head claim. Having denied Tyler’s request for permission to file a successive habeas

petition, we affirm the judgment of the district court denying Tyler’s motion as it relates to Head.

III.

Considering the jury-deliberation-instruction argument as a true Rule 60(b) motion, the

district court properly denied the motion. “Rule 60(b) proceedings are subject to only limited

and deferential appellate review.” Gonzales, 545 U.S. at 535 (citing Browder v. Dir., Dep’t. of

Corr. of Ill., 434 U.S. 257, 263 n.7 (1978)). “This court reviews a district court’s denial of a

Rule 60(b) motion for relief from judgment for an abuse of discretion.” Yeschick v. Mineta, 675

F.3d 622, 628 (6th Cir. 2012) (citing Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir.

No. 13-4036 Tyler v. Anderson Page 12

2010)). “[A] motion made under Rule 60(b)(6) is addressed to the trial court’s discretion which

is ‘especially broad’ given the underlying equitable principles involved.” Hopper v. Euclid

Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Further, when reviewing the

district court’s denial of a Rule 60(b) motion, this court does not consider the merits of the

underlying judgment. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001) (citing Hood

v. Hood, 59 F.3d 40, 42 (6th Cir. 1995)). Rule 60(b) does not allow a defeated litigant a second

chance to convince the court to rule in his or her favor by presenting new explanations, legal

theories, or proof. Id. The grant of relief under Rule 60(b) is circumscribed by public policy

favoring finality of judgments and termination of litigation. Thompson v. Bell, 580 F.3d 423,

442 (6th Cir. 2009).

With respect to the deliberation-jury-instruction issue, the district court correctly held that

Rule 60(c)(1) barred its review because the motion was not filed within “a year after the entry of

the judgment or order or the date of the proceeding.” If a party is partly to blame for the delay in

timely challenging a judgment, then relief must be sought within one year under Rule 60(b)(1),

and for relief to be granted, the party’s neglect must be excusable. See Pioneer, 507 U.S. at 393.

We agree that Tyler was partly to blame for the delay in bringing the issue of the district court’s

alleged failure to adjudicate the deliberation instruction to the attention of the courts. On May

20, 2002, the district court denied Tyler’s petition for a writ of habeas corpus. By May 25, 2002,

Tyler knew that the district court had not explicitly discussed the deliberation-jury-instruction

subclaim. The text of his letter to counsel of that date displays a clear understanding of the issue

and the absence of district court discussion of it. Tyler’s Rule 60(b) motion was filed on

February 28, 2013, over ten years later. During the interim, Tyler filed a motion to alter or

amend the judgment pursuant to Rule 59, a request to expand the certificate of appealability in

this court, an appeal of the district court’s denial of his habeas petition, and, proceeding pro se, a

notice of intent to file a second petition for a writ of habeas corpus and a motion for

authorization to file a second habeas petition. Although his 2002 and 2004 letters to counsel

indicated complete awareness of the district court’s alleged failure to consider the deliberation-

jury-instruction issue, in none of these filings did Tyler alert any court to the district court’s

omission. The district court properly found that “Tyler had sufficient notice and many

reasonable opportunities to alert the courts to his allegedly unadjudicated claims: through a Rule

No. 13-4036 Tyler v. Anderson Page 13

59(e) motion or a timely Rule 60(b)(1) motion; or on appeal, through a motion for a COA.”

Tyler, 2013 WL 3992590 at *7.

Tyler submits that he could not have previously requested a certificate of appealability

because the claim was unadjudicated by the district court. But the district court’s denial of

Tyler’s petition for a writ of habeas corpus, including the denial of the subclaim at issue, was a

final decision reviewable by this court. Cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

467 U.S. 837, 842 (1984) (“[T]his Court reviews judgments, not opinions”); McClung v.

Silliman, 19 U.S. 598, 603 (1821) (“The question before an appellate Court is, was the judgment

correct, not the ground on which the judgment professes to proceed.”). Thus, Tyler could have

alleged these errors in his request to expand the certificate of appealability. Moreover, in his

request to expand the certificate of appealability, Tyler did reassert the Brady claim, and he

alluded to the jury-deliberation instruction-claim in the context of an ineffective-assistance-of-

trial-counsel claim.

Tyler’s May 25, 2002 letter to his counsel, composed shortly after the district court

denied his petition for a writ of habeas corpus, shows the clarity of his view that the district court

failed to adjudicate his jury-deliberation-instruction claim. Within the year of the district court’s

denial of habeas relief, Tyler filed a motion with the district court to alter or amend judgment and

a motion with this court to expand the certificate of appealability. In neither motion, however,

did Tyler raise the jury-deliberation-instruction issue. When Tyler’s letter is considered along

with these two motions, we must conclude that Tyler is partly to blame for the delay in bringing

the issue to the attention of the courts. Under Pioneer, Tyler was required to seek relief under

Rule 60(b)(1) within a year after the denial of the writ. He did not, and thus the district court did

not err in holding that Rule 60(c)(1) bars his motion.

Even if Tyler’s motion were cognizable under Rule 60(b)(6), the motion would still be

subject to the requirement of Rule 60(c)(1) that “[a] motion under Rule 60(b) must be made

within a reasonable time.” Fed. R. Civ. P. 60(c)(1). A reasonable time depends on the factual

circumstances of each case, Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 906 (6th Cir.

2006), and a moving party must articulate a reasonable basis for delay, In re G.A.D., Inc., 340

F.3d 331, 334 (6th Cir. 2003). In this case, over ten years elapsed between the time the district

No. 13-4036 Tyler v. Anderson Page 14

court denied Tyler’s petition for a writ of habeas corpus and when Tyler filed his Rule 60(b)

motion. Tyler’s May 25, 2002, letter, along with the multiple opportunities afforded Tyler to

bring his view of the district court’s omission to the attention of the district court or this court,

show that Tyler could have raised this issue before he did. Moreover, as the district court found,

Tyler could have filed a motion pro se, as he had done before, within the period spanning more

than ten years. See Tyler, 2013 WL 3992590, at *6. Under these circumstances, assuming

arguendo that Tyler’s motion relating to the deliberation instruction is specifically cognizable

under Rule 60(b)(6) and not barred by § 2244(b), the motion was not filed within a reasonable

time pursuant to Rule 60(c)(1). See, e.g., West v. Champion, 363 F. App’x 660, 664 (10th Cir.

2010) (holding Rule 60(b)(6) motion filed more than eight years after district court’s judgment

on habeas petition “is not within the ‘reasonable time’ contemplated by Rule 60(c)(1)”).

Accordingly, the district court did not abuse its discretion in denying Tyler’s motion for relief

from judgment.

IV.

The district court granted a certificate of appealability as to whether Martinez, 132 S. Ct.

at 1315, abrogated Post’s interpretation that 28 U.S.C. § 2254(i) “expressly bars relief grounded

on claims of incompetent or ineffective counsel in federal post-conviction proceedings,”

including Rule 60(b) motions premised on such claims. See Post, 422 F.3d at 423. We leave for

another day whether Martinez abrogated Post’s interpretation of 28 U.S.C. § 2254(i). For the

foregoing reasons, we deny Tyler permission to file a second or successive petition on the claim

relating to Head, and we affirm the district court’s denial of Tyler’s Rule 60(b) motion as to the

jury-deliberation-instruction claim.