In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1786
DE ANTHONY A. NASH ,
Petitioner-Appellant,
v.
RANDALL HEPP,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CV-202 — J.P. Stadtmueller, Judge.
ARGUED JUNE 13, 2013 — DECIDED JANUARY 17, 2014
Before MANION , SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge. DeAnthony Nash, a Wisconsin
prisoner, contends that his trial lawyer was ineffective in
advising him to plead no contest to a sexual-assault charge and
then failing to file a notice of intent to seek postconviction relief
as required by state postconviction procedure. The district
court denied federal habeas corpus relief, reasoning that Nash
2 No. 12-1786
procedurally defaulted his claim. Nash did not appeal. He later
sought relief from the judgment via two motions under
Rule 60(b)(6) of the Federal Rules of Civil Procedure, both of
which the court denied. Nash appeals the denial of the second
of these motions, arguing that he demonstrated “extraordinary
circumstances” warranting relief under Rule 60(b)(6) based on
several recent Supreme Court decisions that expand the
circumstances under which procedural default may be ex-
cused. See Trevino v. Thaler, 133 S. Ct. 1911 (2013); Martinez v.
Ryan, 132 S. Ct. 1309 (2012); Maples v. Thomas, 132 S. Ct. 912
(2012).
We affirm. The recent changes in the law of procedural
default do not give Nash grounds for relief under
Rule 60(b)(6). Moreover, the state circuit court specifically
advised Nash how he could correct his counsel’s procedural
error and reinstate his postconviction and appeal rights, but he
did not take advantage of the opportunity to do so.
I. Background
Nash pleaded no contest in Wisconsin state court to sexual
assault of a child and received a sentence of three years in
prison and five years of extended supervision. On the day of
sentencing, he and his attorney signed and filed a standard
form stating that Nash wanted to seek postconviction relief
and acknowledging that his attorney was required to file
within 20 days a notice of intent to pursue postconviction
relief. See WIS. STAT. §§ 809.30(2), 973.18(5). Under Wisconsin
postconviction procedure, filing this form allows a defendant
to challenge trial counsel’s performance with new appointed
No. 12-1786 3
counsel before a direct appeal is taken. State v. Evans,
682 N.W.2d 784, 793–94 (Wis. 2004).
When Nash had not heard from his attorney or the court for
several months, he filed a pro se motion for postconviction
relief. The circuit court denied the motion, noting that Nash’s
attorney had neglected to file the required notice of intent but
also informing Nash of the procedure for reinstating his
postconviction and appeal rights, which allows a prisoner in
this situation to start the counseled postconviction process over
again. See WIS. STAT . § 809.82(2)(a); State v. Walker, 716 N.W.2d
498, 504–06 (Wis. 2006). Instead of following this procedure,
Nash appealed the denial of his pro se motion. On appeal he
argued for the first time that trial counsel was ineffective for
advising him to plead no contest and for failing to file the
notice of intent to pursue postconviction relief. The court of
appeals declined to appoint counsel for Nash because he had
neither filed the notice of intent nor sought reinstatement of his
postconviction and appeal rights. The court affirmed the denial
of Nash’s pro se motion for postconviction relief, explaining
that Nash had waived his claim of ineffective assistance of
counsel by failing to raise it in the circuit court and rejecting his
other claims on the merits. The Wisconsin Supreme Court
denied his petition for review.
Nash next petitioned the federal district court for a writ of
habeas corpus under 28 U.S.C. § 2254, raising, as relevant here,
his claim that trial counsel was ineffective. He alleged that
counsel incompetently advised him to plead guilty without
investigating allegedly inconsistent statements by the victim
and also failed to file the notice of intent to pursue
4 No. 12-1786
postconviction relief. The district court denied Nash’s petition,
concluding that he had procedurally defaulted his ineffective-
assistance claim by failing to present it to the state trial court.
Nash did not appeal, but nine months later he moved for
relief from judgment under Rule 60(b), maintaining that his
trial counsel’s failure to file the notice of intent excused his
procedural default. The district court denied relief. Nash
appealed, but we denied his request for a certificate of
appealability. Nash v. Husz, No. 10-2265 (7th Cir. Oct. 18, 2010).
More than a year later, the Supreme Court decided Maples v.
Thomas, concluding that ineffective assistance of state post-
conviction counsel can excuse procedural default if counsel
caused the default by abandoning the petitioner without
notice. 132 S. Ct. 912, 922–24, 927 (2012). The following month
Nash filed a second motion for relief from judgment under
Rule 60(b), citing Maples. The district court denied the motion,
explaining that Maples was inapposite because Nash caused his
own procedural default by failing to adequately present his
claims in his pro se attack.
Before Nash appealed this decision, the Supreme Court
decided Martinez v. Ryan, which held that ineffective assistance
of postconviction counsel can also excuse procedural default if
state law requires a prisoner to raise a claim of ineffective
assistance of trial counsel in collateral proceedings rather than
in a direct appeal. 132 S. Ct. 1309, 1315–18 (2012). We granted
a certificate of appealability on Nash’s claim of ineffective
assistance of trial counsel and instructed the parties to discuss
Maples and Martinez.
No. 12-1786 5
Two further developments occurred while Nash’s appeal
has been pending. First, the Supreme Court clarified that
Martinez applies to states that while not expressly prohibiting
claims of ineffective assistance of trial counsel on direct appeal,
nonetheless make them virtually impossible to raise until
collateral review because of the difficulty of creating an
expanded record in time for direct review. Trevino v. Thaler,
133 S. Ct. 1911, 1921 (2013). Second, Nash absconded from
extended supervision and has yet to be found.
II. Discussion
We first address the significance of Nash’s fugitive status.
The fugitive-disentitlement doctrine holds that a court may, in
its discretion, dismiss or defer an action if the party seeking
relief has become a fugitive. See Degen v. United States, 517 U.S.
820, 823 (1996); Ortega-Rodriguez v. United States, 507 U.S. 234,
239–40 (1993); Sarlund v. Anderson, 205 F.3d 973, 974–75 (7th
Cir. 2000). The Assistant Attorney General who argued this
case has told us that the State prefers that we reach the merits,
notwithstanding Nash’s fugitive status, so we will not exercise
our discretion to dismiss this appeal under the fugitive-
disentitlement doctrine.
We review the district court’s denial of Nash’s Rule 60(b)
motion for abuse of discretion. Eskridge v. Cook County, 577 F.3d
806, 808 (7th Cir. 2009); Cincinnati Ins. Co. v. Flanders Electric
Motor Serv., 131 F.3d 625, 628 (7th Cir. 1997). Nash’s motion did
not invoke any of the specific grounds for relief from judgment
under Rule 60(b)(1)–(5), so it falls under the “catch-all”
6 No. 12-1786
provision, which permits relief from judgment for “any other
reason that justifies relief.” FED . R. CIV . P. 60(b)(6). A motion for
relief from judgment under Rule 60(b)(6) may be granted in
only “extraordinary circumstances.” Agostini v. Felton, 521 U.S.
203, 239 (1997); Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir.
2006). Nash argues that the recent decisions in Maples,
Martinez, and Trevino, as applied to his case and Wisconsin
postconviction procedure, constitute extraordinary circum-
stances warranting relief from judgment under Rule 60(b)(6).
This argument is foreclosed by precedent; a change in law
showing that a previous judgment may have been incorrect is
not an “extraordinary circumstance” justifying relief under
Rule 60(b)(6). Gonzalez v. Crosby, 545 U.S. 524, 536 (2005); Hill
v. Rios, 722 F.3d 937, 938 (7th Cir. 2013) (“Rule 60(b) cannot be
used to reopen the judgment in a civil case just because later
authority shows that the judgment may have been incorrect.”);
Norgaard v. DePuy Orthopaedics, Inc., 121 F.3d 1074, 1078 (7th
Cir. 1997).
Nash’s case involves the “mundane” and “hardly extraordi-
nary” situation in which the district court applied the govern-
ing rule of procedural default at the time of its decision and the
caselaw changed after judgment became final. See Gonzalez,
545 U.S. at 536; Hill, 722 F.3d at 938 (“[L]egal developments
after a judgment becomes final do not qualify as extraordi-
nary.”); Norgaard, 121 F.3d at 1078. Nash could have appealed
and made the arguments that the petitioners made in Maples,
Martinez, and Trevino. His failure to do so does not make the
circumstances of his case extraordinary. See Gonzalez, 545 U.S.
at 537; Hill, 722 F.3d at 938–39 (“[A] litigant who bypasses
arguments on appeal cannot depict his own omission as an
No. 12-1786 7
‘extraordinary’ event that justifies post-judgment relief.”); West
v. Schneiter, 485 F.3d 393, 395 (7th Cir. 2007); Norgaard, 121 F.3d
at 1078.
The change in law here is even less extraordinary because
Maples, Martinez, and Trevino do not establish that the district
court’s decision was incorrect. In Maples counsel abandoned
the petitioner without warning, and the petitioner lost his only
opportunity to timely appeal from the denial of his postconvic-
tion petition. 132 S. Ct. at 916–17, 920–21. Here, in contrast,
although Nash’s counsel abandoned him without warning,
Nash did not lose his opportunity to pursue postconviction
relief or appeal. As the circuit court advised him, he could have
sought reinstatement of his postconviction and appeal rights,
which would have allowed him to bring his collateral chal-
lenge with new appointed counsel. See WIS. STAT .
§ 809.82(2)(a); Walker, 716 N.W.2d at 505–06; Evans, 682 N.W.2d
at 793–94. He did not do so. His procedural default is attribut-
able to his own failure to invoke this procedure.
Likewise, Martinez and Trevino do not directly call the
district court’s decision into question. In Martinez and Trevino,
the Supreme Court held that procedural default caused by
ineffective postconviction counsel may be excused if state law,
either expressly or in practice, confines claims of trial counsel’s
ineffectiveness exclusively to collateral review. Trevino,
133 S. Ct. at 1921; Martinez, 132 S. Ct. at 1315. Wisconsin law
expressly allows—indeed, in most cases requires—defendants
to raise claims of ineffective assistance of trial counsel as part
of a consolidated and counseled direct appeal, and provides an
opportunity to develop an expanded record. See Evans,
8 No. 12-1786
682 N.W.2d at 793–94. True, Nash’s trial counsel neglected to
file the notice of intent to mount such a challenge. But as we
have explained, Wisconsin provides a procedure through
which Nash easily could have remedied counsel’s omission
and started the plenary postconviction process anew. See WIS.
STAT. § 809.82(2)(a); Walker, 716 N.W.2d at 505–06; Evans,
682 N.W.2d at 793–94. Indeed, the circuit court specifically told
him how to avail himself of this process, but Nash did not do
so.
For these reasons, the judgment of the district court is
AFFIRMED .