Dennis McGuire v. Warden, Chillicothe Correctional Inst.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0355p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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DENNIS B. MCGUIRE,
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Petitioner-Appellant,
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No. 13-3368
v.
,
>
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WARDEN, CHILLICOTHE CORRECTIONAL

Respondent-Appellee. --
INSTITUTION,

N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 99-00140—Susan J. Dlott, Chief District Judge.
Argued: December 16, 2013
Decided and Filed: December 30, 2013
Before: SILER, ROGERS, and SUTTON, Circuit Judges.

_________________

COUNSEL
ARGUED: Allen L. Bohnert, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Seth P. Kestner, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Gary W. Crim, Dayton, Ohio,
Robert K. Lowe, Kelle Hinderer Andrews, OFFICE OF THE OHIO PUBLIC
DEFENDER, Columbus, Ohio, for Appellant. Seth P. Kestner, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION
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ROGERS, Circuit Judge. Dennis B. McGuire, an Ohio death row inmate
represented by counsel, appeals from a federal district court order denying his motion
for relief from judgment filed pursuant to Federal Rule of Civil Procedure 60(b). In

1
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 2

March 2008, the district court denied McGuire’s original petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. This court affirmed the district court’s denial,
see McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), which became final when the
Supreme Court denied a writ of certiorari in April 2011, 131 S. Ct. 2103 (2011). In his
Rule 60(b) motion, McGuire sought to re-open a claim asserting the ineffectiveness of
trial counsel arising from their failure to adequately investigate and present mitigation
evidence at the penalty phase of trial, relying upon Martinez v. Ryan, 132 S. Ct. 1309
(2012). McGuire argues that the procedural default for this claim should be excused
because his counsel on state post-conviction review was ineffective. For the reasons that
follow, McGuire has not demonstrated the extraordinary circumstances required to
justify relief from final judgment pursuant to Rule 60(b)(6).

I.

The basic details of McGuire’s trial, conviction, and sentence for the kidnapping,
rape, and aggravated murder of Joy Stewart can be found in our previous opinion.
619 F.3d at 625–27. For the purposes of this appeal, which involves only the issue of
the effectiveness of McGuire’s penalty phase counsel in investigating and presenting
mitigation evidence, we need only describe what that counsel actually presented during
sentencing and how counsel’s effectiveness in that regard was challenged during direct
appeal and collateral review.

On direct appeal, the Ohio Supreme Court summarized the evidence presented
in mitigation as part of that court’s determination that the aggravating factors carried
sufficient weight to support McGuire’s capital sentence:

Apart from inappropriately relying on residual doubt, appellant presented
a number of other factors offered in mitigation. Doris Newton,
McGuire’s mother, and Tonya Cross, his half-sister, testified about
McGuire’s turbulent childhood. The defendant was born in 1960. His
parents divorced two years later, leaving McGuire in the sole care of his
mother. McGuire’s father took his older brother away, and McGuire had
little contact with them after that, except when he would run away from
home to see them.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 3

McGuire lived with his mother until he was eighteen. During that time,
his mother was involved with several men, some of who[m] physically
beat her in front of the appellant, who was required on occasion to run
for help. His mother and half-sister testified that these men did not abuse
the appellant physically; however, they did inflict mental abuse by
calling McGuire names, yelling at him, and generally treating him
poorly. Some of these men, however, were good to the defendant, and
one continued to be available to help him even after the marriage with
appellant's mother ended.
Defendant was also moved frequently, attending various schools, but
eventually dropping out after ninth grade. Defendant began using
marijuana at the age of nine and continued doing so until his
incarceration in 1990. While imprisoned, appellant has taken strides to
improve his education. He has also committed only minor infractions
while incarcerated.
Appellant has not demonstrated that the factors listed as mitigation
outweigh the aggravated nature of the murder. While appellant's
mitigation evidence is entitled to some weight, it is insufficient to
overcome the aggravating circumstance in this case, that defendant
committed rape in conjunction with murder. We therefore conclude
under our independent review that the aggravating circumstances
outweigh the mitigating factors in this case.
State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio 1997).

After McGuire was sentenced to death, he appealed to the Ohio Court of
Appeals, although his appellate counsel, which had not represented him at trial or at
sentencing, did not raise a claim of ineffective assistance of trial counsel. See State v.
McGuire, No. CA95-01-001, 1996 WL 174609 (Ohio Ct. App. Apr. 15, 1996). That
court affirmed the sentence of death. Id. at *14.

McGuire appealed to the Ohio Supreme Court. McGuire, 686 N.E.2d at 1112.
His counsel at this stage, yet again different from both his trial counsel and intermediate
appellate counsel, did raise a claim of ineffective assistance of penalty phase counsel for
failure to investigate and present mitigation evidence, as Proposition of Law Seven. See
id. at 1125. However, because the trial-level ineffectiveness claim had not been raised
at the intermediate appellate level, the supreme court deemed it forfeited. See id. at
1117. Still, a substantive mitigation-IAC claim was also nested within a claim of
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 4

ineffective assistance of appellate counsel, as a claim of ineffective assistance of
intermediate-appellate counsel for failure to raise the mitigation-IAC claim. See id. at
1120. The state supreme court held that appellate counsel was not ineffective for failing
to raise the mitigation-IAC claim:

McGuire also claims that appellate counsel were ineffective for not
raising a number of alleged penalty-phase errors made by trial counsel.
First, he claims “inadequate preparation and presentation of mitigation
evidence,” because counsel should have hired a “mitigation specialist”
to gather mitigating evidence. However, he cites no authority that this
is a requirement of effective assistance, and we hold that it is not. He
further complains that trial counsel should have called more [than] just
the two members of McGuire’s family to testify in the penalty phase.
But the record does not show that this resulted from inadequate
investigation or incompetent decisionmaking. In addition, McGuire
claims that Dr. Kuehnl, the defense psychologist who testified on his
behalf, was inadequately prepared and should have performed routine
tests to determine whether McGuire was suffering a mental disorder.
McGuire appears to blame defense counsel for this, but the record
provides no basis to do so. Kuehnl may have decided that such tests
were unnecessary. If so, it seems reasonable that counsel would defer to
the psychologist's professional judgment. Given the difficulty of proving
ineffective assistance of trial counsel and the weakness of appellant's
claims, McGuire’s appellate counsel were not deficient in failing to raise
the issue of ineffective trial counsel.
Id. The court ultimately affirmed McGuire’s convictions and sentence of death. Id. at

1124.

McGuire filed a petition for post-conviction relief, which the trial court denied

without an evidentiary hearing. In dismissing McGuire’s claim, the trial court

emphasized the failure of post-conviction counsel to attach documentary evidence

outside the record to support his claim:

Petitioner claims that his counsel failed to properly prepare for the
penalty phase.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 5

As stated by the State in its response to this claim, Petitioner has failed
to offer any documentary evidence to support the claimed failure to
prepare.
On pages 31 through 33, Petitioner offers a mini-seminar relative to the
proper manner in which to obtain and present mitigation evidence. On
pages 34 and 35 Petitioner attempts to specifically set forth defense
counsel’s alleged failure. A review of the allegations reveals that for the
most part Petitioner complains that the information presented fell short
of that which was necessary to support the sentence preferred by
Petitioner, i.e. life imprisonment. The claim is result oriented, i.e.
because the jury recommended a sentence of death trial counsel must
have been ineffective in their representation. Petitioner ignores the
possibility that there was no additional mitigating evidence to present.
The record reveals that defense counsel acted professionally and
effectively throughout the entire trial including the mitigation phase. If
there is evidence outside the record to support a claim that defense
counsel failed to properly prepare for the mitigation phase then same
should have been attached to the Petition.

McGuire appealed the post-conviction trial court’s decision, but did not challenge the
trial court’s ruling with respect to the mitigation-IAC claim. The Ohio Court of Appeals
affirmed the denial of the petition. State v. McGuire, No. CA97-06-015, 1998 WL
191415, at *8 (Ohio Ct. App. Apr. 20, 1998). The Supreme Court of Ohio declined
further review. State v. McGuire, 699 N.E.2d 945 (Ohio 1998).

McGuire filed a second post-conviction petition with the state trial court, raising
only the mitigation-IAC claim. This time, McGuire supported the petition with six
exhibits. The trial court denied McGuire’s second petition for post-conviction relief.
The court of appeals affirmed, stating that the mitigation-IAC claim was barred by res
judicata:

Petitioner first argues that his claims cannot logically be barred by res
judicata because his claims have not been fully litigated. Petitioner’s
claims could have been fully litigated, but petitioner failed to present
adequate evidence to support those claims. Petitioner’s second petition
merely offers additional evidence with respect to issues previously
addressed by the first petition.
In his first postconviction petition, petitioner alleged the ineffective
assistance of his counsel during the death penalty phase of the
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 6

proceedings. In Cause of Action X, petitioner claimed his attorneys had
failed to adequately investigate and present mitigation evidence to the
jury in the form of family member testimony, expert mitigation
testimony, and psychiatric testimony. Ruling on his postconviction
petition, the trial court determined that petitioner had failed to offer any
documentary evidence to support his claims and that the record showed
trial counsel had acted effectively in the mitigation phase of the
proceedings.
In his second postconviction petition, petitioner made precisely the same
argument but attempted to introduce additional evidence. Petitioner
offered documents in the form of additional affidavits from family
members regarding his formative years. The trial court found petitioner’s
claim of ineffective assistance barred because he had raised precisely the
same claim in his first postconviction petition.
The operative facts in this case are very similar to those in [State v.
Castro, 425 N.E.2d 907, 909 (Ohio Ct. App. 1979)]. There, the
petitioner alleged ineffective assistance of counsel in a second
postconviction petition. Id. The petitioner had alleged the ineffective
assistance of counsel in his first postconviction petition. Id. The court
found the second petition's claim barred by res judicata. Id. We reach
the same result.
Petitioner’s ineffective assistance claim was raised in his first
postconviction petition. Petitioner failed to provide necessary affidavits
to fully litigate the issue. Res judicata therefore bars his subsequent
claim. Although petitioner attempts to differentiate his claims from the
claims raised in [State v. Perry, 226 N.E.2d 104 (Ohio 1967)], he has
offered no valid reason that res judicata should not apply to bar this
claim, and it is not necessary to address the issue on its merits.
Accordingly, the trial court's ruling is affirmed. Petitioner’s second
assignment of error is overruled.

State v. McGuire, No. CA2000-10-011, 2001 WL 409424, at *10 (Ohio Ct. App. Apr.
23, 2001). The Ohio Supreme declined further review. State v. McGuire, 754 N.E.2d
259 (Ohio 2001).

McGuire filed a petition for a writ of habeas corpus in the federal district court
for the Southern District of Ohio. In his second ground for relief, McGuire argued that
his penalty phase counsel deprived him of the effective assistance of counsel by
inadequate preparation and presentation of mitigation evidence. The case was referred
to a magistrate judge, who, without conducting an evidentiary hearing, issued a report
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 7

recommending that McGuire’s petition be denied. The magistrate judge determined that
the ineffectiveness claim was procedurally defaulted, stating:

First, Ohio has a res judicata rule which essentially required Mr.
McGuire to raise this ineffective assistance of counsel claim in his direct
appeal. Second, the Ohio Supreme Court specifically found that Mr.
McGuire had waived the issue. Third, the Sixth Circuit has determined
that Ohio’s res judicata rule is an “adequate and independent” state
ground for purposes of a procedural default analysis.

McGuire abandoned the claim in his objections to the report and recommendation. See
R. 94 at 8 (“We now abandon Claims Two, Six, Twelve, Thirteen, Fourteen, Fifteen,
Sixteen, Nineteen, Twenty, and the remainder of Twenty-one.”). The district court did
not address the claim because it had been abandoned. Over McGuire’s objections, the
district court adopted the magistrate judge’s reports and recommendations and denied
the petition. This court affirmed, McGuire, 619 F.3d at 631, and the Supreme Court
denied certiorari, 131 S. Ct. at 2103.

In September 2012, McGuire filed his Rule 60(b) motion seeking to reopen his
habeas proceedings to pursue the second ground for relief raised in his habeas corpus
petition, relying primarily upon the Supreme Court’s decision in Martinez v. Ryan,
132 S. Ct. 1309 (2012). Martinez held that:

[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.

132 S. Ct. at 1320. The case was referred to a magistrate judge, who issued a report
recommending the denial of the motion. McGuire submitted timely objections. The
magistrate judge then issued a supplemental report, again recommending the denial of
the motion. McGuire again entered timely objections. The district court adopted the
magistrate judge’s report and recommendations and denied the motion, concluding that
Martinez was not applicable to McGuire’s claim:
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 8

The Sixth Circuit has not directly addressed whether Martinez should
apply in Ohio when a post-conviction defendant cannot assert his
ineffective assistance of trial claim on direct appeal. However, those are
not the circumstances here. McGuire asserted his ineffective assistance
of trial counsel claim for the first time on direct appeal, and only
thereafter in the post-conviction proceedings. Therefore, his subclaim
does not fall within the limited exception provided for in Martinez for
ineffective assistance of trial counsel claims which were required to be
raised in post-conviction collateral proceedings. It follows that McGuire
has not established that extraordinary circumstances exist pursuant to
Rule 60(b)(6) to reopen the ineffective assistance of trial counsel
subclaim in the Second Ground for Relief.

McGuire’s counsel filed a notice of appeal from the district court’s judgment.
Two months later, the Supreme Court decided Trevino v. Thaler, 133 S. Ct. 1911 (2013),
a case that expanded and clarified Martinez. The district court subsequently certified the
following issue for appeal: “whether Martinez justifies granting Petitioner relief from
judgment in this case on his Second Claim for Relief regarding the alleged
ineffectiveness of his trial counsel.”

Martinez and Trevino created an exception to the rule that ineffective assistance
of counsel in state post-conviction collateral proceedings cannot serve as cause for
procedural default. In Coleman v. Thompson, the Supreme Court reasoned that “[t]here
is no constitutional right to an attorney in state post-conviction proceedings,” and that
“[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of
counsel in such procededings.” 501 U.S. 722, 752 (1991). And in that case, “[b]ecause
Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error
that led to the default of Coleman’s claims in state court cannot constitute cause to
excuse the default in federal habeas.” Id. at 757. In Maples v. Thomas, this rule was
recognized and explained, although not applied when, unlike in the present case, post-
conviction counsel abandoned his client. 132 S. Ct. 912, 922–27 (2012).

In Martinez, the Supreme Court carved out a “narrow exception” to Coleman,
holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner's procedural default of a claim of ineffective
assistance at trial.” 132 S. Ct. at 1315. The Court held that:
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 9

[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 1320. In Martinez, the court applied this rule to hold that, because Arizona
criminal procedure does not permit claims of ineffective assistance to be brought on
direct appeal, the federal habeas court should have determined whether the attorney in
the first collateral proceeding was ineffective in abandoning without arguing, and
thereby procedurally defaulting, the claim of ineffective assistance of trial counsel. See
id. at 1320–21.

Martinez’s apparent limit to those jurisdictions in which “claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding,” id.
at 1320 (emphasis added), was loosened in the Court’s application of Martinez in
Trevino. There, the Court interpreted Martinez as establishing a four-part test, under
which a federal habeas court can

find “cause,” thereby excusing a defendant's procedural default,
where (1) the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being “no
counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires
that an “ineffective assistance of trial counsel [claim] . . . be raised in an
initial-review collateral proceeding.”

133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at 1318–19, 1320–21) (emphasis in
original). The Court modified the fourth requirement so that Martinez would apply in
Texas, even though Texas criminal procedure “on its face appears to permit (but does
not require) the defendant to raise the claim [of ineffective assistance of trial counsel]
on direct appeal.” Id. (emphasis in original).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 10

The Court pointed out two elements of Texas criminal procedure that made a
strict application of Martinez’s fourth requirement appear to be unjustified. First, the
Court noted that “Texas procedure makes it ‘virtually impossible for appellate counsel
to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.”
Id. (quoting Robinson v. State, 16 S.W.3d 808, 811 (Tex. Ct. Crim. App. 2000))
(alteration in original). This is because under Texas criminal procedure time constraints
and procedural hurdles render impracticable the development of evidence outside the
trial record, which is often needed to present a claim for ineffective assistance of trial
counsel. See id. at 1918–19. The Court suggested that “as a systematic matter, Texas
[does not] afford[] meaningful review of a claim of ineffective assistance of trial
counsel.” Id. at 1919. Second, the Court noted that, “were Martinez not to apply, the
Texas procedural system would create significant unfairness,” because Texas courts in
their holdings, and the Texas criminal bar in their practice, have followed the principle
that claims of ineffective assistance of counsel are generally inappropriate on direct
review and should typically be brought on collateral review. Id. at 1919–20.

The Supreme Court concluded “that the Texas procedural system—as a matter
of its structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.”
Id. at 1921 (emphasis added). The Court held that Martinez applied to the Texas system
and that ineffective assistance of post-conviction counsel at an initial-review collateral
proceeding could be cause to excuse a procedural default. Id.

McGuire argues that Trevino expands Martinez to jurisdictions like Ohio, on the
theory that ineffective assistance of trial counsel cannot be meaningfully litigated on
direct review because the state provides no procedural mechanism to expand the record
on direct review. Thus, McGuire contends, the post-conviction proceeding is the first
meaningful opportunity to present ineffective assistance of trial counsel claims that
depend upon evidence outside the record. We have not directly addressed the
applicability of Martinez in light of Trevino. In Moore v. Mitchell, we concluded that
Martinez does not apply in Ohio because Ohio permits ineffective assistance of trial
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 11

counsel claims to be made on direct appeal, see 708 F.3d 760, 785 (6th Cir. 2013), but
that decision was issued before Trevino.

II.

This case has been thoroughly litigated in the state courts and on federal habeas
through to the United States Supreme Court. The brutal crime for which defendant was
convicted and sentenced occurred in 1989. Federal habeas corpus was finally denied by
the district court in 2008, and that decision was upheld in the United States Supreme
Court in 2011. Petitioner seeks to reopen that final judgment under Federal Rule of Civil
Procedure 60(b)(6), which permits the opening of final judgments in extraordinary
circumstances. At the time that the district court below denied the Rule 60(b) motion,
the district court clearly did not abuse its discretion, in light of our court’s pre-Trevino
rejection of the applicability of Martinez with respect to Ohio law. Moore, 708 F.3d at
785; see also Coyer v. HSBC Mortg. Servs., Inc., 701 F.3d 1104, 1110 (6th Cir. 2012)
(stating abuse of discretion standard for denials of Rule 60(b) motions). The only
question before us now is whether the Supreme Court’s recent Trevino decision requires
a different result. Trevino does not, however, require a different result, because
intervening law does not generally permit the re-opening of finally decided cases, and
even if it does in some truly extraordinary cases, this is not such a case.

None of the enumerated grounds for relief under Rule 60(b)(1)–(5) applies in this
case, so McGuire must rely for relief upon the catchall provision, Rule 60(b)(6), which
provides for relief from a final judgment for “any other reason that justifies relief.”
“Relief under Rule 60(b) is circumscribed by public policy favoring finality of
judgments and termination of litigation. This is especially true in an application of
subsection (6) of Rule 60(b), which applies only in exceptional or extraordinary
circumstances which are not addressed by the first five numbered clauses of the Rule.”
Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007)
(alteration and quotation marks omitted) (citation omitted). Relief is limited to “unusual
and extreme situations where principles of equity mandate relief.” Id. (quoting Olle v.
Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)). “The decision to grant Rule
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 12

60(b)(6) relief is a case-by-case inquiry that requires the trial court to intensively balance
numerous factors, including the competing policies of the finality of judgments and the
incessant command of the court’s conscience that justice be done in light of all the
facts.” Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009) (quoting Blue Diamond
Coal Co. v. Trustees of UMWA Combined Benefits Fund, 249 F.3d 519, 529 (6th Cir.
2001)) (alteration omitted).

The single fact that Trevino has been decided does not change the balance of
these factors sufficiently to require Rule 60(b) relief. It “is well established that a
change in decisional law is usually not, by itself, an ‘extraordinary circumstance’
meriting Rule 60(b)(6) relief.” Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007)
(quoting Blue Diamond, 249 F.3d at 524)); see also Gonzalez v. Crosby, 545 U.S. 524,
536–37 (2005).1

First, it is solely a change in the law “by itself” that could even arguably provide
for relief from the final judgment in this case. No development other than the Trevino
decision has been suggested. In particular, there are no newly developed facts since the
denial of McGuire’s federal habeas petition became final in April 2011.

Second, the change in the law resulting from the recent Trevino decision is flatly
not a change in the constitutional rights of criminal defendants, but rather an adjustment
of an equitable ruling by the Supreme Court as to when federal statutory relief is
available. The Supreme Court disclaimed any change in the constitutional ground rules
for determining guilt or innocence in a criminal case in Martinez, instead basing the
decision on the courts’ equitable power. See 132 S. Ct. at 1319.

1
In Gonzalez the Court reasoned in part as follows:
[N]ot every interpretation of the federal statutes setting forth the requirements for habeas
provides cause for reopening cases long since final. If [one new precedent] justified
reopening long-ago dismissals based on a lower court’s unduly parsimonious
interpretation of § 2244(d)(2), then [another intervening precedent] would justify
reopening long-ago grants of habeas relief based on a lower court’s unduly generous
interpretation of the same tolling provision.
Id. at 536–37.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 13

Third, while we need not determine whether Trevino applies to Ohio cases, it is
not obvious that Trevino applies here. Ohio law appears to contemplate two kinds of
ineffective assistance of counsel claims, those based only on evidence in the trial record
and those based in part on evidence outside the record. Ohio also appears to expect
appellate counsel to recognize the types of claims and follow the proper procedure. As
to the first type of claim, res judicata bars an ineffective assistance of counsel claim that
relies entirely on evidence inside the trial record, since such a claim could have been
brought on direct appeal. This is because in Ohio,

[u]nder the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding,
except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant
at the trial which resulted in that judgment of conviction or on an appeal
from that judgment.

State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967). Since it is “a bedrock principle of
appellate practice in Ohio . . . that an appeals court is limited to the record of the
proceedings at trial,” Morgan v. Eads, 818 N.E.2d 1157, 1159 (Ohio 2004), the second
type of claim, ineffective assistance of counsel contentions that rely on evidence outside
the record, cannot be brought on direct review. In State v. Cole, the Ohio Supreme Court
explained:

Generally, the introduction in [a postconviction] petition of evidence
dehors the record of ineffective assistance of counsel is sufficient, if not
to mandate a hearing, at least to avoid dismissal on the basis of res
judicata. In the case at bar, however, the allegations outside the record
upon which appellant relies appear so contrived, when measured against
the overwhelming evidence in the record of trial counsel's competence,
as to constitute no credible evidence and, thus, to justify the trial court's
application of the principles of res judicata.

443 N.E.2d 169, 171 (Ohio 1982). However, “[a] petition for postconviction relief is
subject to dismissal without a hearing when the petitioner fails to submit with his
petition evidentiary material setting forth sufficient operative facts to demonstrate
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 14

substantive grounds for relief.” State v. Sowell, 598 N.E.2d 136, 142 (Ohio Ct. App.
1991); see also Ohio Rev. Code Ann. § 2953.21(C).

Thus, Ohio law suggests two different ways to look at Trevino. On the one hand,
certain claims can for practical purposes only be brought in an initial-review collateral
attack in a post-conviction petition. And Trevino recognized that a “meaningful
opportunity to present a claim of ineffective assistance of trial counsel” includes “the
need to expand the trial court record.” 133 S. Ct. at 1921. Ohio courts recognize that
claims requiring evidence outside the record may only be meaningfully litigated in post-
conviction proceedings and may loosen ordinary res judicata principles in such cases:
“although ineffective assistance of counsel ordinarily should be raised on direct appeal,
res judicata does not bar a defendant from raising this issue in a petition for
postconviction relief if the claim is based on evidence outside the record[,] . . . even
when the issue of ineffective assistance of counsel was raised on direct appeal.” State
v. Richmond, No. 97616, 2012 WL 2047991, at *1 (Ohio Ct. App. July 2, 2012) (citing
State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985)). Thus, in Ohio, if ineffective
assistance cases are divided into two categories, one could argue that the category
requiring evidence outside the record must be brought on collateral review in order for
review to be meaningful.

On the other hand, in the “ordinary” case, “ineffective assistance of counsel at
mitigation, just like ineffective assistance at trial, is an issue that can be brought on
direct appeal,” State v. Combs, 652 N.E.2d 205, 212 (Ohio Ct. App. 1994) (collecting
cases), with a constitutionally required appellate attorney, see Franklin v. Anderson, 434
F.3d 412, 428 (6th Cir. 2006) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)); see also
State v. Davis, 894 N.E.2d 1221, 1226 (Ohio 2008); Ohio R. App. P. 26(B). Indeed,
such a claim was raised on McGuire’s direct appeal, and was treated thoughtfully by the
Supreme Court of Ohio on discretionary review, albeit as part of an ineffective
assistance of appellate counsel claim. Arguably, then, the review of trial counsel
ineffectiveness claims in Ohio is more “meaningful” than in Texas, because in Ohio
there is “ordinarily” the availability of direct review with constitutionally required
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 15

counsel, with the back-up of collateral attack where evidence outside the record is
required. All of this shows that the application of Trevino to Ohio ineffective-assistance
claims is neither obvious nor inevitable.

Fourth, even if Trevino changed the law in some Ohio cases and even if a pure
change in law could warrant Rule 60(b)(6) relief in truly extraordinary cases, there is
nothing extraordinary about this case because the underlying reasons for the Trevino
gloss on Martinez at best apply weakly in this case. Above all and as shown, McGuire
on direct appeal did make a challenge to the effectiveness of trial counsel with second-
tier appellate counsel whose effectiveness is not now at issue. Indeed, the Ohio Supreme
Court rejected claims that parallel those made in the Rule 60(b) motion and in the briefs
before us now. See McGuire, 686 N.E.2d at 1120. The supreme court rejected a claim
of inadequate preparation and presentation of mitigation evidence because counsel
should have hired a mitigation specialist, and rejected the argument that trial counsel
should have called more than just the two members of McGuire's family to testify in the
penalty phase. Id. The supreme court also rejected an argument that the defense
psychologist who testified on McGuire’s behalf was inadequately prepared. Id.

To be successful under Trevino, moreover, McGuire must show a “substantial”
claim of ineffective assistance, Trevino, 133 S. Ct. at 1918, and this requirement applies
as well to the prejudice portion of the ineffective assistance claim. McGuire’s claim, for
the reasons given in the next section, is likely not sufficiently substantial to meet this
element of the Martinez exception.

III.

Even with the evidence that McGuire asserts should have been uncovered and
presented by trial counsel, McGuire’s claim for ineffective assistance of trial counsel is
not particularly compelling. “To prevail on a claim of ineffective assistance of counsel,
a petitioner must show that his counsel's performance was deficient and that it prejudiced
him.” Nichols v. Heidle, 725 F.3d 516, 539 (6th Cir. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 16

A comparison of the mitigation evidence that was presented at trial to that which
McGuire claims should have been presented does not compel the conclusion that
McGuire’s underlying claim for ineffective assistance of trial counsel is substantial.
Although in his second petition for post-conviction review, McGuire presented
additional and more detailed evidence of his impoverished upbringing and unstable
family life, none of the testimony from his other family members changes substantially
the picture of the case presented to the jury. Furthermore, it appears that the penalty
phase counsel was entitled to rely upon the psychological assessment of Dr. Kuehnl, the
psychological expert who testified at the sentencing hearing.

The following individuals testified on McGuire’s behalf at the penalty phase:
Mary C. Beedy, record office supervisor at the Madison Correctional Institution in
London, Ohio; Doris Jean Newton, McGuire’s mother; Tonya May Cross, McGuire’s
half-sister; Phyllis Kuehnl, Ph.D., a licensed psychologist; and McGuire himself.

As these witnesses explained, McGuire’s challenges in life began before he was
born: Newton, McGuire’s mother, testified that McGuire was born at home, rather than
in a hospital, and that she had no medical care during the pregnancy. At that time, she
and Genis Ray McGuire, the father, already had a son, Genis Jr. (“Junior”); and they had
a daughter after Dennis, although Newton left McGuire’s father when she was three
months pregnant with the daughter. Newton and Genis divorced in 1962, when Dennis
was about three years old. Newton testified that McGuire had no relationship with his
father; after the divorce, Genis and two of his brothers forcibly entered Newton and her
mother’s home and took Junior away. Genis took Junior out of the state, and Newton
did not see Junior for over three years after that. The young McGuire predominantly
lived with Newton, though he occasionally ran away to Genis’s house. McGuire
testified that he and his biological father “never got along. I never called him Dad, and
he never called me son.”

While McGuire was growing up, his mother was married to six different men.
All of the marriages ended in divorce. Newton testified that after McGuire’s father she
married Donald Douglas Konz, with whom she had two children, a son named Randall
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 17

and a daughter named Tonya. Newton divorced Konz after six years, and she next
married Ronald K. Baker for “[a]bout a year” before they too divorced. Newton was
then married to Danny Raney for “[a]bout three years,” and next to Jerry Wayne Miller
for “[p]robably about two years.” Those marriages also ended in divorce. Newton was
finally married to Leon Eugene Newton, but the marriage ended much like the others:
they were “only together three months, but . . . weren’t divorced for a couple years.”

McGuire witnessed and personally suffered abuse from the parade of step-fathers
in his life. Newton testified that the young McGuire suffered a “[l]ot of mental abuse
but not no physical abuse much” from this series of step-fathers. Newton acknowledged
that they would treat him “poorly” and “call him names.” Tonya Cross recounted in her
testimony how McGuire’s step-fathers would abuse him “verbally” with “[h]ollering and
the yelling.” Newton added that Genis, Raney, and Miller were abusive to her. She
stated that Genis “beat [her] for eight hours,” leaving her “whole left side paralyzed”;
Raney “busted [her] nose” after hitting her in the face once, for which she went to the
hospital; and Miller “grabbed [her] by the hair of the head” and did similar such things
(although he did not hit her). Newton testified that she intermittently lived with Norman
Mullins, whom she never married. Newton testified to how the young Dennis witnessed
the abusive Mullins terrorizing the household:

Q. And was Norman Mullins also abusive to you?
A. Mostly mentally to me. Yea. And he’d come in—my brother and
sister, they stayed with me. I took care of them also for awhile. And I’d
get on him because he wouldn’t work or anything, and he’d get drunk
and come in. Throw everybody in the house out. Denny B., I could just
look at him and he’d go call the law.

Newton explained that “Denny B.” was McGuire and acknowledged that he was “the
man of the house.” Newton stated that when she was being beaten, McGuire “[w]as
always by [her]” and would often call the police for help. Tonya Cross confirmed that
“some times when [their] mom’s husbands . . . would . . . get in arguments or something,
and Denny would have to go for the law.” This was “Denny’s job,” which he had to do
“pretty much” “on a regular basis.” McGuire said he had “jumped out of two story
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 18

windows,” “got hit a couple times trying to keep ’em from hurtin’ [his] mother,” and
“ran after the cops, [he] couldn’t count [how many times].” Despite all the boyfriends
and husbands that may have disturbed her maternal relationship with McGuire, Newton
“d[id]n’t think he ever felt unloved or anything though. By me.”

McGuire apparently had immense difficulties in school and never progressed
very far in his education. Newton testified that McGuire was “[a] poor student.”
Newton stated that she moved as a result of her relationships and that, in turn, McGuire
“[b]ounced around . . . a lot” through various school systems. When McGuire was in
school, he did not attend it regularly, since he “just didn’t like school.” Tonya Cross
believed that “he was gone more than he was there.” According to Newton, McGuire
dropped out shortly after starting the tenth grade. As for his poor academic performance,
Newton said that McGuire “couldn’t do the work” and that “[i]n the 8th grade he
couldn’t read 2nd grade work.” McGuire performed so poorly that Raney threatened to
cut McGuire’s hair if he did not do his school work. Newton suggested during her
testimony that McGuire could barely read or write. Tonya Cross recalled during her
testimony that McGuire had to have his driver’s license exam administered verbally
because he couldn’t read and write well enough to take it on paper.

In addition to struggling academically in school, McGuire faced bullying from
fellow students. Newton testified that McGuire was “chubby” in the third or fourth grade
and was also, in quite a literal sense, tongue tied: “His tongue was stuck to the roof of
his mouth, that little thing there, and we had to go have it clipped, or his tongue wouldn’t
move.” After this operation, McGuire suffered from a speech impediment; he
“stuttered” and “had a lot of problems” with his speech, to the point that he had to attend
speech therapy. Because of his speech difficulties and weight, McGuire was called
“Mushmouth” and “Fatso” by other children, but he “was always—pretty much kinda
sissy and he wouldn’t fight.” McGuire testified to physical abuse from black students
when he went to Trotwood, a school with significant racial tensions:

And there was days I come home, black eyes, busted nose and stuff.
Where most of the black kids on the bus started beating up us white ones.
And I quit going to school. . . . I tried to. I really tried to. I tried going to
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 19

school. I tried to get my education. But I couldn’t get around those
whoopings. And I wasn’t going to school and getting beat up every day.
I wasn’t going to do it. I’m tired of black guys, and my head getting
busted and baseball bats and stuff. So I quit.

A miserable upbringing preceded the immediate receipt of adult responsibilities.
Newton testified that McGuire moved out when he was eighteen and married a woman
named Darlene. Darlene and McGuire lived with three children, one of whom was from
Darlene’s prior relationship. Based on the “few times” Newton saw them at home, to
her they “seemed like a happy family.” Tonya Cross agreed that “the children seemed
happy,” and that McGuire would play with the children, whom he “seem[ed] to love.”
However, this short marriage apparently ended in divorce shortly after his incarceration
for the murder of Joy Stewart, and McGuire had seen his children only twice in the
penal institution since the divorce.

Dr. Kuehnl testified as an expert in psychology, and based her testimony on two
hours spent in a personal interview with McGuire, a review of the discovery packet and
his school records, and some time spent interviewing his family members. Dr. Kuehnl
testified that McGuire “came across as a man who had grown up through a series of
turbulent relationships that left him with few social skills.” She testified to the
importance of stable bonds in a child’s development and opined that McGuire’s early
life was “erratic, and didn’t provide him with very much predictability.” The fact that
he was “rejected by his father, who chose not to have any additional contact with him,
would certainly cause him—would cause him to feel insecure and unloved in spite of
what [his] mother might be attempting to portray at that point.” Dr. Kuehnl also
discussed McGuire’s use of marijuana from the age of 9 and how this indicated that
McGuire had “withdrawn from the fight so to speak”; the marijuana “numbed his view
of the world,” which helped him through “the disintegration of the family unit.”

This evidence does not materially differ in quantity and quality from the
evidence—several affidavits from family members—that McGuire submitted in support
of his successive state post-conviction petition. What the affidavits recount is
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 20

substantially similar in content to the testimony of Newton, Tonya Cross, and McGuire
himself.

For example, Randy Konz, McGuire’s half-brother, provided a short affidavit in
support of McGuire’s successive state post-conviction petition. Regarding McGuire’s
personality, Randy averred: “[McGuire] got along with everyone. Black kids at
Trotwood picked on him. The school had a lot of racial problems.” McGuire’s
testimony covered this. As Newton, McGuire, and Cross attested to, Randy also
discussed “how during fights between my mother and one of her husbands or boyfriends,
[McGuire] would climb out the windows to get the neighbors’ help.” About their
respective childhoods, Randy explained:

My brother had it harder than I did. The hardest part for Dennis was that
he had to raise himself. Our mother was out bar hopping. She always
had lots of boyfriends. She and the kids often didn’t have money for
food. Dennis had to steal food to eat. I think she may have left Dennis
and Mary Beth alone for a few days at a time.

Randy, like Newton and Cross at the sentencing hearing, noted that McGuire had
difficulty reading and “avoided situations when he had to read”; McGuire passed his
driver’s test only when he could take the oral version. Randy’s affidavit did not entirely
support mitigation; such as when he stated that McGuire had a reputation as a “snitch,”
and when Randy expressed a belief that Newton “ignore[d] Tonya and me” and “only
seemed to care about Dennis and Mary Beth[, Newton’s daughter with Genis].”

Don Konz, Newton’s second husband, also provided a short affidavit. After the
divorce, Konz saw McGuire only when Konz took Tonya to see her mother, at which
time she was living with Norm; McGuire “didn’t seem to be happy.” When he was
eighteen years old, McGuire lived with Konz “for two months” while McGuire worked
at TGI Friday’s. McGuire and his children lived with Konz “for about a week” when
McGuire’s wife “kicked him out”; McGuire “took care of his kids like a mother hen.”
Konz noted that Genis denied that McGuire was his son. Konz also recounted
McGuire’s speech impediments and academic difficulties, although those topics were
discussed at length at the sentencing hearing. Konz also discussed disciplinary routines
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 21

in the household: Doris and he “usually made Dennis sit in a room, stand in a corner,
or go without TV for awhile,” but “[m]ost of the time Doris and I gave the kids a couple
of cracks on the butt.” This testimony adds little to the whole picture. Almost an entire
page of the affidavit discussed Konz’s and Newton’s problems with alcohol and fidelity,
problems with only limited direct relevance to McGuire.

Mary Elizabeth Malicote, McGuire’s younger full sister, provided another short
affidavit in support. She averred that their father, Genis, did not pay child support and
the family experienced “hard times financially,” including “times when we ate mostly
bologna sandwiches with chips and soup,” but they would have “a new outfit for school
even if it was inexpensive.” During Newton’s marriage to Konz, he “made [McGuire]
eat a bar of soap after I told him [McGuire] spat on me,” and would also “pok[e] his
finger in [McGuire’s] face and call[] him stupid.” Malicote mentioned McGuire’s role
in getting the police when their mother was being abused, although that was covered at
the sentencing hearing. Malicote’s testimony was also cumulative to the extent it
covered McGuire’s difficulties in school, both academically and socially. About a fourth
of the short affidavit discusses Malicote’s own difficulties in life, which only in a very
indirect way help McGuire’s case for mitigation. Besides providing a couple of
anecdotes and more detail, Malicote’s testimony is cumulative.

Nola Stewart, McGuire’s maternal aunt and younger sister to Newton by twenty-
two years, provided yet another affidavit. The first four pages of the affidavit concern
family history from before McGuire entered the picture, although Stewart does aver that
her mother, McGuire’s grandmother, did not help Newton with McGuire even though
the child was often hungry. Stewart did say that McGuire “didn’t have much to eat when
he was little.” Stewart indicated that McGuire’s circumstances improved between the
ages of ten and fifteen years old:

Doris drew welfare. She was divorced from Don Konz by that time. She
had a nice apartment and plenty of food. I think she also received
housing assistance. Doris had gotten her life on track. She had always
tried, but she chose bad men. Her children may have been malnourished,
but she never physically abused them. She was always affectionate and
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 22

loving with them. Most of her marriages ended because of the kids. If
the men didn’t like them, she told them to leave.

Stewart stated that Newton attempted suicide, although she did not provide any details.
Most of the rest of the affidavit is cumulative of the evidence presented at the sentencing
hearing, especially her statements regarding McGuire’s lack of education and the
abusive relationships Newton had with other men.

Tonya Cross and Doris Newton, McGuire’s half-sister and mother who had both
testified at the sentencing hearing, provided two more affidavits in support of McGuire’s
second state post-conviction petition. A large portion of Cross’s affidavit discussed her
family history. Otherwise, Cross’s and Newton’s affidavits largely track their testimony
at trial, and they therefore do little if anything to advance McGuire’s case that the failure
to introduce additional testimony from either of them in any way prejudiced him at
sentencing.

It is far from clear that McGuire has presented sufficient evidence of prejudice
to make a successful Strickland claim. Most of the information contained in the various
affidavits had already been presented through the testimony at trial, especially regarding
McGuire’s trouble in school, teasing from other children, and his dysfunctional, unstable
family life. To the extent the affidavits present new information, that information either
does not relate to McGuire (Stewart provided background history about her parents),
comes from an unreliable source (Randy averred that he did not live with Newton), or
adds little substantive impact to that information presented to the jury (Cross, Malicote,
Newton, and Stewart explained in their affidavits that Newton’s relationships were
abusive, McGuire acted as the “man of the house,” and McGuire did not perform well
academically). Notwithstanding the allegedly deficient performance arising from trial
counsel’s failure to talk to each of the affiants, McGuire cannot show prejudice because
the new evidence he proposes should have been introduced at trial is cumulative. As we
explained in Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005), “in order to establish
prejudice, the new evidence that a habeas petitioner presents must differ in a substantial
way—in strength and subject matter—from the evidence actually presented at
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 23

sentencing.” The introduction of additional examples to fill out the narrative that was
formed of McGuire’s life at the sentencing hearing is not enough to demonstrate
prejudice. This is similar to our reasoning in Jackson v. Bradshaw, 681 F.3d 753, 770
(6th Cir. 2012), where we held that, “[w]hile the latter evidence sharpens the outlines of
Petitioner’s personal history from the picture offered at trial, the extra benefit to
Petitioner resulting from the increased specificity is marginal and, therefore, insufficient
to support the conclusion that counsel erred by failing to proffer these more specific
details.”

Lastly, McGuire attempts to rely upon a report from Kathleen J. Burch, Psy.D.,
a clinical psychologist. This final bit of evidence was not presented during state post-
conviction proceedings, but was brought only during federal habeas proceedings in a
motion to expand the record. Dr. Burch conducted a battery of tests, which
demonstrated that McGuire has cognitive dysfunction, manifests a passive-aggressive
or paranoid personality disorder, and suffers mood disturbances, including a
susceptibility to depression. However, Dr. Burch concluded that:

The results of the psychological assessments performed . . . do not
suggest the presence of a major mental illness. They do[] suggest,
however, certain deficits in his ability to effectively regulate his behavior
and deficits in his interpersonal functioning, that would have relevance
to his everyday behavior, including his criminal behavior. . . . These
deficits reflect and result from impairments in the functioning of his
brain. These impairments may be largely, or entirely, inborn; the
reported history of serious learning problems and behavior problems
among family members suggests that he is likely constitutionally
predisposed to act impulsively and unreflectively. . . . Mr. McGuire gave
. . . a history of significant substance abuse and various closed head
injuries that might also account for some of his brain-based impairments
of thinking and behavior.

There is no serious prejudice from the jury’s inability to consider Dr. Burch’s
analysis, for her conclusions, although arrived at through more comprehensive clinical
evaluation, do not appear to be greatly different from the conclusions Dr. Kuehnl made
at the sentencing hearing. Furthermore, it does not appear that Dr. Burch’s conclusions
would have been particularly helpful to the jury, as they are mostly provisional, intuitive,
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 24

or inconclusive. Dr. Burch suggests only the possibility of organic brain tissue damage
without corroboration. Dr. Burch’s reference to a “constitutional[] predispos[ition] to
act impulsively and unreflectively” is to some extent inherent in McGuire’s crime itself.
Perhaps most importantly, none of McGuire’s psychological aberrations rises to the level
of “major mental illness.” The cases cited by McGuire involve much different and more
serious deficiencies in the presentation of competent defense expert testimony: an expert
who testified at the sentencing hearing that she was not equipped to perform additional
diagnostic tests to detect organic brain dysfunction that she thought was likely, Powell
v. Collins, 332 F.3d 376, 384 (6th Cir. 2003); a failure to present any information about
the defendant’s bizarre, nightmarish personal history, and instead just presenting an
unsworn statement by the defendant in mitigation, Coleman v. Mitchell, 268 F.3d 417,
445–56, 450–51 (6th Cir. 2001); no provision of expert testimony except expert
testimony that was guided by the prosecution and which was unchallenged by the
defense, Glenn v. Tate, 71 F.3d 1204, 1209–10 (6th Cir. 1995); or no “thorough
investigation of [the defendant’s] mental health, even after [the defendant’s] mother
alerted them that [the defendant] suffered from mental illness,” Harries v. Bell, 417 F.3d
631, 638 (6th Cir. 2005).

In addition, McGuire’s trial-level counsel was entitled to rely on the conclusions
arrived at by Dr. Kuehnl after her examination of McGuire. Dr. Kuehnl appears to have
conducted herself in a professional and efficient manner, and McGuire makes no
persuasive argument to the contrary. Rather, McGuire emphasizes that Dr. Kuehnl
presented nothing in the form of an “organic explanation.” However, the fact that Dr.
Kuehnl approached McGuire’s case as one of family dynamics and social history does
not dilute its significance; and indeed, such testimony may be more intuitively helpful
to a jury than more specialized neuropsychological explanations. Absent a showing that
trial counsel reasonably believed that Dr. Kuehnl was somehow incompetent or that
additional testing should have occurred, simply introducing the contrary opinion of
another mental health expert during habeas review is not sufficient to demonstrate the
ineffectiveness of trial counsel. See Black v. Bell, 664 F.3d 81, 104–05 (6th Cir. 2011).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 25

IV.

In the end, the strong policy of maintaining the finality of judgments, especially
following two state court collateral attacks and a federal collateral attack that was
litigated to the United States Supreme Court, the single fact of an intervening Supreme
Court decision, unclear in its relevance to this claim, is not sufficient to warrant
reopening the final judgment against the defendant.

There is one case in which we have ordered Rule 60(b)(6) relief based on an
intervening change in the law, Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009). That
case is materially different. Thompson involved a change in a state supreme court rule
to the effect that discretionary review was not required in order for criminal defendants
to exhaust their state appeals. The rule change—unlike the precedential development
in this case—unquestionably applied to the facts of Thompson, in which federal habeas
had been denied on the issues in question for failure to seek such discretionary review.
Id. at 433. Moreover, this court in Thompson heard simultaneously both the appeal from
the denial of the original federal habeas petition—which required reversal for
independent reasons—and the appeal from the Rule 60(b) denial. See id. at 428, 443–44.
Most significantly, however, in Thompson we departed from the acknowledged general
rule against relief from final judgments based on a change in the law on the ground that
that change was one of state procedural law. We reasoned:

We agree that the enactment of [Tennessee Supreme Court Rule 39] is an
extraordinary circumstance, and that nothing in the Supreme Court’s
opinion in Gonzalez undermined this Court's reasoning in [In re
Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004) (“Abdur’Rahman I”),
vacated by Bell v. Abdur’Rahman, 545 U.S. 1151 (2005)]. Unlike the
Supreme Court in Gonzalez, which found that a change in federal
decisional law by itself was not an extraordinary circumstance, this Court
in Abdur’Rahman I found the enactment of TSCR 39 to be an
extraordinary circumstance because refusing to recognize it “would
disserve the comity interests enshrined in AEDPA by ignoring the state
court's view of its own law.” 392 F.3d at 187. A federal court’s respect
for another state’s law was not at issue in Gonzalez, in which the Rule
60(b) motion was based solely on a change in federal decisional law
interpreting a federal statute. See also Blue Diamond, 249 F.3d at 524
(“[A] change in decisional law is usually not, by itself, an ‘extraordinary
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 26

circumstance’ meriting Rule 60(b)(6) relief.”) (emphasis supplied).
Because this Court’s reasoning in Abdur'Rahman I is still valid after
Gonzalez, today we reaffirm our previous holding that a motion based
upon the promulgation of TSCR 39 is an extraordinary circumstance
warranting relief under Rule 60(b)(6).

Id. at 443. Thus the very basis for distinguishing Gonzalez in Thompson cuts against
Rule 60(b)(6) relief in this case. McGuire’s case does not involve a change in state law.

For these reasons, there was not a sufficient basis for the district court to provide
relief under Rule 60(b)(6) from the final judgment of conviction and sentence in this
case. The judgment denying Rule 60(b) relief is affirmed.