1 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

_________________

A RTHUR T YLER , Petitioner-Appellant ,

v

.

C ARL S. A NDERSON , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 13-4036

Appeal from the United St ates 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, a nd 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 GENE RAL, Columbus, Ohio, for Appellee. 

### >No. 13-4036 Tyler v. Anderson Page 2

_________________ OPINION

_________________ JULIA SMITH GIBBONS, Circuit Judge. ArthurTyler, 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 Ru le 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 pe tition for a writ of habeas cor pus, 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 cour t to its alleged omission. The dist rict court denied Tyler’s motion but granted a certific ate of appealability. For th e following reasons, we affirm.

I. The facts underlying Tyler’s conviction are fu lly 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 previ ously 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 wh ich he sold produce at the corner of East 66th Street and Zoeter Avenue inCleveland. Both Tyler and Leroy Head were involved. A Cuyahoga County grand jury indict ed Tyler and Head on one countof aggravated murder and one count of aggravated robbery. Head pled guilty to aggravated murder and aggravated robbery, and the death-penalty sp ecification was dismissed. Tyle r 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). Hi s conviction was reve rsed on appeal. Id. at *19. Tyler was retried and convi cted 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 afte rnoon, 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 aggrav ating factors outweigh the mitigating factors and wishes to recommend the death penalty, but the remaining jurors are just as positive that the m itigating factors are strong enough not to recommend the death penalty—and neither group is willing to change that decision, what is the proper proc edure 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 verdic t. 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 th e 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 su bmitted to twelve individuals more intelligent, more impartial or more comp etent 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, wh at 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, Ty ler was again sentenced to death. Tyler , 553 N.E.2d at 582. Tyler’s conviction and senten ce 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 re lief, each containing many subparts, two of which are pertinent to this appeal. In his twenty-sec ond 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 senten cing consideration for testifying at Tyler’sNo. 13-4036 Tyler v. Anderson Page 4

second trial and that Head was threatened with a dverse consequences at the second trial if he did not testify against Tyler. In his twenty-fourth claim for relief, entitle d “Errors in Mitigation Phase Charges and Procedures,” Tyler argued th at his conviction and sentence are void because the trial court improperly charged the jury during deliberation. Anderson f iled a return of writ.
On April 5, 2000, the district court granted le ave for Tyler’s counsel to take Head’s deposition. When Tyler’s counsel deposed Hea d, however, Head invoked the privilege against self-incrimination. William Mason, Cuyahoga Count y Prosecutor, refused to extend immunity to Head in exchange for his testim ony. 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 Ande rson’s return of writ. In the traverse, Tyler reiterated the twen ty-second and twenty-fourth claims fo r 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 app ealability 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 habe as counsel, informing his counsel that the district court’s opinion failed to address his su bclaim alleging an improper jury instruction during deliberation. Tyler wrote as follows:

And I don’t know if you know it or not? Bu t he never answered my deadlock issue claim, and we have to get back withhim on that because that is the key the only key I ever banked on, cause when thatjury deadlocked with no one willing to change their decision every thing wa s 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 thatthey 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 theNo. 13-4036 Tyler v. Anderson Page 5

district court failed to allow di scovery or to hold evidentiary hearings so that Tyler could discover information about Head that was neve r provided to defense counsel. Tyler did not, however, reassert his claim that the district cour t issued a coercive jury instruction during the penalty phase. The district court denied th e 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 appealabili ty, Tyler reasserted his claim that the prosecution failed to disclose that Head received addi tional sentencing consideration fo r testifying at th e 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 di strict 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 Tyle r’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 Mas on to grant immunity to Leroy Head. The common pleas court dismissed the request, an d 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 (Ohi o 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 di strict court transferred the case to this courtNo. 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 districtcourt for the appoint ment of the Capital Habeas Unit of the Office of the Federal Public De fender for the Northern District of Ohio to act as advisory counsel for his clemency proceedings . The district court gr anted 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 de liberation 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-p hase jury instruction during deliberation coerced the jury’s sentencing determination in viol ation 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 Fe bruary 28, 2013. Upon further review, Tyler perceived that another subclaim wa s unaddressed by the distri ct 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 Ty ler. 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 th ese two subclaims. The amended motion also asserted that Tyler should be relieved from th e 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 de nied 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 cat ch-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 fa lling 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 fili ng the motion. Id. at *6. The court noted that subsection (b)(6) is applicable only in extraordinary circumst ances, and “‘[i]f a party is partly to blame for the delay, relief must be sought within one year under subsection (b)(1) a nd 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 th at 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 a lleged “inexcusable negl ect” of Tyler’s habeas counsel as a basis for relief, holding that the de ficient performance of habeas counsel cannot be the basis for granting a Rule 60 mo tion and reopening a habeas case. Id. The district court observed that, in cases governed by the Antiterrorism and E ffective 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 defici ent 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 expr essly 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 mo tion 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 th e court to his allegedly una djudicated subclaims: he could have done so through a Ru le 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 th at relief under Rule 60(b)(1) was time-barred, the district court deni ed 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 dist rict court found that reasonable ju rists could debate whether the fundamental basis of Tyler’s Rule 60(b) motion is th e district court’s allege d failure to adjudicate two subclaims asserted in his petition and, consequently, whethe r Tyler’s motion for relief is cognizable under subsection (b)(1). The court also found that reason able 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) “expressl y 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 move d to withdraw, taking “f ull responsibility for the failure to bring to the Court’s attention ea rlier and in a more timely fashion” the issues brought to light by the advisory counsel. The di strict court granted that motion, and the Capital Habeas Unit became lead counsel. Tyler timely appealed.

II. As a threshold matter, we must decide whet her 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 nece ssary 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, th en 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 co rpus petition until the court of appeals issues an order authorizing the district c ourt to consider the petition. 28 U.S.C. § 2244(b)(3)(A).
For purposes of § 2244(b), “an ‘appl ication’ for habeas relief is a filing that contains one or more ‘claims.’” Gonzalez , 545 U.S. at 530. A motion contai ns a “claim,” and is thus a successive habeas petition, if it asserts a “fed eral basis for relief from the state court’s judgmentNo. 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 re solution 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 co rpus relief under 28 U.S. C. §§ 2254(a) and (d).” Id. at 532 n.4. “A habeas petitioner’s filing that s eeks vindication of such a claim is, if not in substance a ‘habeas corpus application,’ at least si milar 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 dete rmination on the merits, and is thus not a successive habeas petition, when it “merely asse rts 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 st atute-of-limita tions bar.” Id. at 532 n.4. Further, a motion does not present a claim when it does not at tack “the substance of the fede ral court’s resolu tion of a claim on the merits, but some defect in the inte grity of the federal habeas proceedings,” id. at 532, such as fraud on the federal habeas court, id. at 532 n.5. In short, a moti on 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-amende d 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 c onsideration given to Head was presented in Tyler’s habeas petition. Contrary to Tyler’s contention, however, th e district court did not fail to adjudicate it. In its order denying Tyler’s petiti on 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 tria l 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 b een stated in more detail (thus lengthening an already long opinion), the distri ct court analyzed the underlying claims in order to reach its conclusion.” Henderson v. Collins , 184 F. App’x 518, 523 (6th Ci r. 2006). This claim was previously resolved on the merits.
Whether the district court failed to adjudicate on the merits the deliberation-juryinstruction subclaim is a closer issue. In its opinion denying habeas relief, the district court considered Tyler’s twenty-fourth claim for reli ef, entitled “Errors in Mitigation Phase Charges and Procedures,” alongside his twenty-fifth, twen ty-sixth, and fifty-sec ond claims, as a group of claims alleging judicial error in the sentencing phas e 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 di d not explicitly reject Tyler’s jury-deliberation-instru ction subclaim, it nevertheless c ould 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 relie f 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., concurri ng) (“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 c ourt rejects a federal cl aim 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 di d 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 neve rtheless barred by § 2244(b). Instead, the Spitznas court, citing Gonzales , took the view that a contentio n that the district court fa iled to consider a habeas claim was a true Rule 60(b) claim asserting a de fect 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 viewsNo. 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 ci rcuit when other grounds of reso lution exist, we will assume, without deciding, that the delibera tion jury-instruction-claim presen ts 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 tran sfer 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 permi ssion to file a second § 2244 motion unless the applicant makes a prima facie showing that th e 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 re lies 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 predicat e for the claim could not have been discovered previously through the exerci se of due diligence; and (ii) the facts underlying the cl aim, if proven and viewed in light of the evidence as a whole, would be sufficient to establis h by clear and convincing evidence that, but for constitutional error, no reasona ble 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 f acie showing that he satisfies these requirements, he is not entitled to file a second or successive habeas petition raising the Head claim. Having de nied Tyler’s request for permissi on to file a successive habeas petition, we affirm the judgment of the district court denying Tyle r’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. “Rul e 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 re views a district court’s denial of a Rule 60(b) motion for relief from judg ment for an abuse of discretion.” Yeschick v. Mineta , 675 F.3d 622, 628 (6th Ci r. 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 underly ing 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, th is 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 ru le in his or her favor by pr esenting 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 de lay 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 expl icitly discussed the deliberation-jury-instruction subclaim. The text of his letter to counsel of th at 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 file d a motion to alter or amend the judgment pursuant to Rule 59, a request to expand the certificat e of appealability in this court, an appeal of the district court’s de nial of his habeas petition, and, proceeding pro se, a notice of intent to file a second petition fo r a writ of habeas corpus and a motion for authorization to file a sec ond habeas petition. Although his 2002 and 2004 letters to counsel indicated complete awareness of the district cour t’s alleged failure to consider the deliberationjury-instruction issue, in none of these filings di d Tyler alert any court to the district court’s omission. The district court properly found that “Tyler ha d sufficient notice and many reasonable opportunities to alert th e courts to his allegedly unad judicated claims: through a RuleNo. 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 previous ly requested a certifi cate of appealability because the claim was unadjudicated by the district court. But th e district court’s denial of Tyler’s petition for a writ of habeas corpus, includi ng the denial of the subclaim at issue, was a final decision reviewab le by this court. Cf. Chevron, U.S.A., Inc. v. Na tural 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 be fore 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 reque st to expand the certificate of appealability. Moreover, in his request to expand the certifi cate of appealability, Tyler did reassert the Brady claim, and he alluded to the jury-deliberation instruction-claim in the context of an in effective-assistance-oftrial-counsel claim.
Tyler’s May 25, 2002 letter to his counsel, co mposed shortly after the district court denied his petition for a writ of ha beas corpus, shows the clarity of his view that the district court failed to adjudicate his jury-deliber ation-instruction claim. Within the year of the district court’s denial of habeas relief, Tyler f iled a motion with the district cour t to alter or amend judgment and a motion with this court to e xpand the certificate of appealability. In neither motion, however, did Tyler raise the jury-deliberation-instruction i ssue. When Tyler’s letter is considered along with these two motions, we must co nclude 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 Ru le 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 articul ate a reasonable basis for delay, In re G.A.D., Inc. , 340 F.3d 331, 334 (6th Cir. 2003). In this case, over te n years elapsed between the time the districtNo. 13-4036 Tyler v. Anderson Page 14

court denied Tyler’s petition for a writ of habeas corpus and wh en 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 cour t’s omission to the attention of the district court or this court, show that Tyler could have raised this issue befo re 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 th ese circumstances, assuming arguendo that Tyler’s motion relating to the delib eration 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 thaneight years after dist rict court’s judgment on habeas petition “is not within the ‘reasonable time’ c ontemplated 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 certificat e 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 coun sel 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 th e district court’s denial of Tyle r’s Rule 60(b) motion as to the jury-deliberation-instruction claim.