1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

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

File Name: 16a0035p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

SAMUEL MORELAND, 

Petitioner-Appellant, 

v. 

NORM ROBINSON, Warden, 

Respondent-Appellee. 

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No. 15-3306 

Appeal from the United States District Court 

for the Southern District of Ohio at Dayton. 

No. 3:05-cv-00334—Thomas M. Rose, District Judge. 

Argued: December 9, 2015 

Decided and Filed: February 11, 2016 

Before: BOGGS, ROGERS, and GRIFFIN, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Jacob A. Cairns, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus, 

Ohio, for Appellant. Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Cleveland, Ohio, for Appellee. ON BRIEF: Jacob A. Cairns, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Katherine E. Mullin, OFFICE OF THE 

OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. 

_________________ 

OPINION 

_________________ 

ROGERS, Circuit Judge. In 1986, a three-judge panel convicted Samuel Moreland of 

killing his girlfriend Glenna Green, her adult daughter, and three of her grandchildren, and then 

>
No. 15-3306 Moreland v. Robinson Page 2 

sentenced him to death. In 2005, Moreland filed a federal habeas petition, which the district 

court denied and dismissed with prejudice. In 2012, while Moreland’s appeal of that court’s 

denial of his habeas petition was pending, Moreland filed two motions: a motion for relief from 

judgment under Federal Rule of Civil Procedure 60(b) and a motion to amend the alreadydenied 2005 petition under Federal Rule of Civil Procedure 15. In these motions, Moreland 

sought to raise claims about his waiver of his right to a jury trial, and his trial counsel’s failure to 

use certain police reports and to obtain an expert to challenge the State’s blood evidence. 

Moreland’s motions are second or successive habeas petitions that the district court 

lacked jurisdiction to consider. Rather than denying Moreland’s motions, the district court 

should have transferred them to this court to review as requests for permission to be filed. 

Considered as requests for such permission, Moreland’s requests do not meet the gatekeeping 

requirements for presenting claims in a second or successive habeas petition. Moreland therefore 

has not established a basis for relief from this court. 

I. 

Our most recent opinion in this case sets forth most of the relevant facts. See Moreland 

v. Bradshaw, 699 F.3d 908 (6th Cir. 2012). Here we describe only certain procedural facts 

relevant to this appeal. 

In April 1986, after Moreland waived trial by jury, a three-judge panel found Moreland 

guilty of the aggravated murders of his girlfriend Glenna Green, her adult daughter Lana Green, 

and Glenna Green’s three grandchildren Violana Green, Datwan Talbott, and Daytrin Talbott. 

Id. at 914–15. The panel also held that Moreland was guilty of the attempted aggravated 

murders of Glenna Green’s grandchildren Tia Green, Dayron Talbott, and Glenna Talbott. Id. at 

915. The panel sentenced Moreland to prison and death. Id. He exhausted direct-appeal and 

state-post-conviction remedies. Id. at 916. 

In 2005, Moreland filed a federal habeas corpus petition, which the district court denied 

and dismissed with prejudice. Moreland timely appealed on May 5, 2009. After briefing, this 

court heard oral argument on April 18, 2012. 
No. 15-3306 Moreland v. Robinson Page 3 

On November 6 of that year—while the case was pending in this court and in the interim 

between oral argument and issuance of opinion—Moreland filed two motions in the district 

court: a Rule 60(b) motion and a motion for leave to file an amended habeas petition. 

Moreland’s 2005 federal petition raised nine claims. His motion to amend that petition 

requested leave to (1) raise a new claim and (2) supplement with new evidence a claim already 

presented in that federal petition. The proposed new claim was that the failure to use certain 

police reports at trial violated Moreland’s rights, either because the prosecutor withheld the 

evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), or because trial counsel failed 

to use the evidence even though they had it, in violation of Strickland v. Washington, 466 U.S. 

668 (1984). 

The claim to be supplemented—really, subclaim—was Subclaim 3(2): trial counsel 

provided ineffective assistance by failing to obtain a blood-analysis expert to challenge the State 

criminalist’s analysis of the blood found on Moreland’s pants. 

Moreland’s Rule 60(b) motion sought to raise the same new claim presented in his 

motion to amend and to supplement Subclaim 3(2) with the same new evidence. The Rule 60(b) 

motion proceeded under the theory that, under the intervening Supreme Court decision in 

Martinez v. Ryan, 132 S. Ct. 1309 (2012), Moreland could raise these claims even though they 

would previously have been held defaulted. 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. 

That same day, Moreland moved in this court to stay appellate proceedings and to 

remand his habeas case to the district court so that he could litigate the Rule 60(b) motion. On 

November 15, 2012, this court affirmed the district court’s denial of habeas relief. Moreland, 

699 F.3d at 935. The same day, this court issued an order denying as moot the motion to stay 

proceedings. A copy of the latter order was filed in district court. On November 29, 2012, 

Moreland moved for rehearing and rehearing en banc. 
No. 15-3306 Moreland v. Robinson Page 4 

Back in district court on December 13, 2012, the magistrate judge denied the motion to 

amend for lack of jurisdiction, but without prejudice to the motion’s renewal once the mandate 

issued. Although the magistrate judge ruled directly on the motion to amend, he made only a 

recommendation on the motion for relief from judgment because that motion was “by definition 

post-judgment.” Nonetheless, he recommended the same fate for the motion for relief from 

judgment: denial for lack of jurisdiction without prejudice to renewal once the mandate issued. 

Six days later, on December 19, 2012, this court denied rehearing en banc. That same 

day, Moreland moved to stay the mandate pending his filing of a certiorari petition. Meanwhile, 

in district court, he filed no objections to the magistrate judge’s recommendation that his Rule 

60(b) motion be denied without prejudice to renewal once the mandate issued. 

On January 14, 2013, the district court adopted the magistrate judge’s report and 

recommendation and denied Moreland’s Rule 60(b) motion. The next day, this court stayed the 

mandate pending Moreland’s filing of a certiorari petition. 

The Supreme Court denied Moreland’s certiorari petition on October 7, 2013. Moreland 

v. Robinson, 134 S. Ct. 110 (2013). The court of appeals mandate was issued two days later on 

October 9, 2013, and Sixth Circuit Case No. 09-3528 was closed. 

On October 11, 2013, Moreland returned to district court and filed revised versions of his 

Rule 60(b) motion and his motion to amend. Pursuant to a district-court order to digitize the 

record, Moreland later refiled the revised versions of these motions. Moreland’s revised motions 

sought to raise the same new and supplemented claims that Moreland presented in his original 

motions. Moreland also sought to raise a new ineffective-assistance-of-trial-counsel claim in 

both of these motions. The new claim was that his trial counsel were ineffective when they had 

sodium pentothal administered to Moreland—allegedly involuntarily—shortly before his jurywaiver hearing, and when they allegedly allowed him to waive his jury-trial right while still 

under the influence of the drug. Further, in his revised Rule 60(b) motion, Moreland also sought 

to supplement with new evidence another claim already presented in the original federal petition: 

Moreland’s claim that he did not knowingly, intelligently, and voluntarily waive his right to trial 

by jury. 
No. 15-3306 Moreland v. Robinson Page 5 

On September 2, 2014, the magistrate judge filed his report and recommendation. 

Moreland v. Robinson, No. 3:05-cv-334, 2014 WL 4351522 (S.D. Ohio Sept. 2, 2014). He 

recommended denying both the Rule 60(b) motion and the motion to amend because they 

actually constituted second or successive federal habeas corpus petitions, permission for which 

to file had not been obtained from this court. Id. at *2–5, 10. The magistrate judge, however, 

recommended granting a certificate of appealability. Id. at *10. 

Two days later, this court issued Clark v. United States, 764 F.3d 653 (2014). In Clark, 

this court stated that “[a] motion to amend is not a second or successive [28 U.S.C.] § 2255 

motion when it is filed before the adjudication of the initial § 2255 motion is complete—i.e., 

before the petitioner has lost on the merits and exhausted her appellate remedies.” Clark, 

764 F.3d at 658. The post-judgment motion in Clark was filed before the time to file an appeal 

from the habeas denial had expired. Id. at 659. Moreland filed objections to the magistrate 

judge’s report and recommendations, contending that his motions were not second or successive 

habeas petitions under Clark. Rather than ruling on the objections, the district court recommitted 

the matter to the magistrate judge for a supplemental report. 

The magistrate judge withdrew the earlier report and recommendation on Moreland’s 

motions “in light of” Clark. Then he filed a new report and recommendation, in which he 

recommended holding that the motions, under Clark, were not second or successive petitions. 

Moreland v. Robinson, No. 3:05-cv-334, 2015 WL 127977, at *2–3 (S.D. Ohio Jan. 8, 2015). In 

concluding that the motions were not second or successive petitions, the magistrate judge 

appeared to accept Moreland’s theory that “the judgment sought to be amended was not yet 

‘final’ when he first moved for relief from it” because he originally filed his Rule 60(b) motion 

“while his appeal was pending.” Id. at *3. Relying on this court’s statement in Clark that “a 

party seek[ing] to amend a complaint after an adverse judgment . . . must meet the requirements 

for reopening a case established by Rules 59 or 60,” the magistrate judge then concluded that 

“whether to allow the Motion to Amend turns on the same factors which control whether or not 

to grant the Rule 60(b) Motion.” Moreland, 2015 WL 127977 at *4 (citing Clark, 764 F.3d at 

661). 
No. 15-3306 Moreland v. Robinson Page 6 

The magistrate judge recommended denying Moreland’s motions because they did not 

meet the requirements for post-judgment relief. Id. at *10. The magistrate judge noted that 

Moreland contended that relief was justified under Federal Rule of Civil Procedure 60(b)(6), 

which provides that a “court may relieve a party . . . from a final judgment” for “any other reason 

that justifies relief.” Id. at *4–5. The magistrate judge explained that even if Martinez applies to 

the Ohio framework that governed Moreland’s post-conviction appeal, Martinez is “available 

only to excuse the procedural default of an ineffective assistance of trial counsel claim which 

happens when post-conviction counsel provides ineffective assistance in failing to adequately 

raise that claim.” Id. at *7. The magistrate judge concluded that there were no ineffectiveassistance-of-trial-counsel claims in Moreland’s petition that the district court or this court 

“declined [to] review on the merits because of procedural default in presenting those claims postconviction.” Id. at *7–9. The magistrate judge therefore reasoned that Martinez did not allow 

Moreland to “ignore his obligation to present ineffective assistance of trial counsel claims in 

post-conviction, litigate other ineffective assistance of trial counsel claims to merits conclusions 

in the Ohio courts, the District Court, and the Sixth Circuit, then start with new ineffective 

assistance of trial counsel claims in the District Court if he could show it was ineffective 

assistance of post-conviction counsel to fail to present them in the first instance.” Id. at *9. 

The magistrate judge further reasoned that even if Moreland were granted relief from 

judgment, amendment of his petition would be futile because the statute of limitations would bar 

him from raising new claims. Id. at *9–10. The magistrate judge therefore recommended 

denying Moreland’s motions, but granting a certificate of appealability “[b]ecause of the 

uncertain state of the law on the application of Martinez in Ohio and the extent of its reach,” the 

same reason for which he had previously recommended a certificate of appealability. Moreland,

at *10. 

The district court overruled Moreland’s objections, adopted the revised report and 

recommendation in its entirety, denied the Rule 60(b) motion and the motion to amend, and 

granted a certificate of appealability. Moreland v. Robinson, 3:05-cv-334, 2015 WL 1286163 

(S.D. Ohio Mar. 19, 2015). Moreland timely appealed. 
No. 15-3306 Moreland v. Robinson Page 7 

II. 

Moreland’s motions were second or successive petitions for habeas corpus relief that the 

district court lacked jurisdiction to review. Claims may not be presented in a second or 

successive petition for habeas corpus relief without permission from this court. 28 U.S.C. 

§ 2244(b)(3); Gonzalez v. Crosby, 545 U.S. 524, 528, 532, 538 (2005). Failure to obtain 

precertification for the filing of such a petition deprives the district court of jurisdiction to 

adjudicate the claims raised in such a petition. Burton v. Stewart, 549 U.S. 147, 149, 152–53, 

157 (2007) (per curiam). 

Moreland’s motions, although purportedly a Rule 60(b) motion and a post-judgment 

motion to amend, actually raise habeas claims. Rule 60(b) motions and motions to amend may 

not be used as vehicles to circumvent the limitations that Congress has placed upon the 

presentation of claims in a second or successive application for habeas relief. Gonzalez, 

545 U.S. at 531–32; Clark, 764 F.3d at 658–59. Hence, when faced with what purports to be a 

Rule 60(b) motion or a motion to amend, federal courts must determine if it really is such a 

motion or if it is instead a second or successive application for habeas relief in disguise. 

Gonzales, 545 U.S. at 530–31; Clark, 764 F.3d at 658–59. “[F]or the purposes of § 2244(b) an 

‘application’ for habeas relief is a filing that contains one or more ‘claims.’” Gonzales, 545 U.S. 

at 530. A § 2244(b) claim is “an asserted federal basis for relief from a state court’s judgment of 

conviction.” Id. A movant is not making a habeas claim when he seeks only to lift the 

procedural bars that prevented adjudication of certain claims on the merits. Id. at 532 n.4. But 

he is making a habeas claim when he seeks to add a new ground for relief or seeks to present 

“new evidence in support of a claim already litigated.” Id. at 531–32. 

Moreland is using his Rule 60(b) motion and motion to amend to try to raise new habeas 

claims and to supplement already litigated claims with new evidence. In particular, Moreland’s 

motions originally sought to raise a new claim based upon his trial counsel’s failure to use 

certain police reports at trial, and to supplement with new evidence a previously litigated claim 

based upon the failure of his trial counsel to obtain an expert to challenge the State’s blood 

evidence. In his refiled motions, Moreland added another new claim based upon his waiver of 

his right to a jury trial and sought to supplement with new evidence a previously litigated claim 
No. 15-3306 Moreland v. Robinson Page 8 

based upon his waiver of his right to a jury trial. All of these claims are second or successive 

claims for habeas relief that the district court lacked jurisdiction to review. 

A. 

Even under a broad reading of Clark, the latter two claims—dealing with the jury 

waiver—were clearly dismissible as presenting second or successive claims. This is because 

Moreland added these claims to his motions after he fully exhausted his appellate remedies. A 

post-judgment motion to amend or Rule 60(b) motion that raises habeas claims is a second or 

successive petition when that motion is filed after the “petitioner has lost on the merits and 

exhausted her appellate remedies.” Clark, 764 F.3d at 658.1

 As stated above, Moreland filed his 

Rule 60(b) motion and motion to amend before this court had affirmed the district court’s denial 

of his habeas petition. The district court denied both of Moreland’s motions without prejudice to 

their being refiled after this court’s mandate issued. After this court issued its mandate affirming 

the district court’s denial of Moreland’s habeas petition and after the Supreme Court denied 

Moreland’s petition for a writ of certiorari, Moreland refiled these motions, adding new claims 

relating to his waiver of his right to a jury trial. Because Moreland’s appeal of the district court’s 

denial of his habeas petition was no longer pending when he filed his revised motions, Moreland 

exhausted his appellate remedies before he added his jury-waiver claims to his motions. 

Accordingly, Moreland’s motions are second or successive petitions to the extent that these 

motions seek post-judgment relief so that he can raise these claims. 

Moreland contends that his revised motions were filed before his appellate remedies were 

fully exhausted. To support this assertion, Moreland notes that the time for him to petition the 

Supreme Court for rehearing of his petition for writ of certiorari had not yet expired when he 

filed his revised motions. Sup. Ct. R. 44(2). This contention is unavailing. Clark does not 

 1

The petitioner in Clark filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence, not a 

28 U.S.C. § 2254 petition for habeas relief. 764 F.3d at 655. However, the Antiterrorism and Effective Death 

Penalty Act seeks to limit the filing of second or successive petitions by both § 2254 and § 2255 petitioners. 

28 U.S.C. §§ 2244(a)–(b), 2255(h). Further, although the petitioner in Clark filed a motion to amend, not a Rule 

60(b) motion, as the Clark court itself recognized, in determining whether a petitioner’s motion is a second or 

successive habeas petition, “it makes no difference whether the successive petition is filed as a Rule 60(b) motion or 

a [post-judgment] motion to amend.” 764 F.3d at 659 n.2. Clark therefore guides the analysis of Moreland’s 

motions. 
No. 15-3306 Moreland v. Robinson Page 9 

establish that the adjudication of Moreland’s original habeas petition was complete only when 

the time for Moreland to petition the Supreme Court for rehearing expired. Rather, the Clark 

court held that a motion to amend was not a second or successive application for relief when the 

petitioner filed the motion to amend before the time for her to appeal the district court’s decision 

dismissing her original § 2255 motion had expired. Clark, 764 F.3d at 659. In contrast to the 

petitioner in Clark, Moreland filed the revised motions that included his jury-waiver claims after 

this court affirmed the district court’s denial of his original habeas petition and after the Supreme 

Court denied his petition for a writ of certiorari. Moreland therefore had a full opportunity to 

have his original habeas petition adjudicated before he added these new claims to his revised 

motions. Accordingly, with respect to the relevant claims, Moreland’s revised motions were 

second or successive motions for habeas corpus relief even under a broad reading of the Clark

opinion.2

B. 

Moreland’s motions are also second or successive petitions to the extent that the motions 

seek to raise the claims that Moreland included in these motions when they were originally filed. 

Our decision in Clark held that a post-judgment petition was not second or successive in a case 

where the petition was filed before the expiration of the time to appeal the district court’s denial 

of the first petition, while our earlier decision in Post v. Bradshaw, 422 F.3d 419, 421, 424–25 

(6th Cir. 2005), held that a habeas petition was a second or successive petition where the petition 

was filed during the pendency of the appeal from denial of the first petition. The two cases 

together thus require that a Rule 60(b) motion or a motion to amend that seeks to raise habeas 

claims is a second or successive habeas petition when that motion is filed after the petitioner has 

appealed the district court’s denial of his original habeas petition or after the time for the 

petitioner to do so has expired. In other words, if the district court has not lost jurisdiction of the 

original habeas petition to the court of appeals, and there is still time to appeal, a post-judgment 

 2

Moreland also contends that the Warden waived his ability to argue that Moreland’s motions were second 

or successive petitions. However, failure to obtain precertification for the filing of such a petition deprives the 

district court of jurisdiction. Burton, 549 U.S. at 149, 152–53, 157. Subject-matter jurisdiction can never be 

forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002). 
No. 15-3306 Moreland v. Robinson Page 10 

motion is not a second or successive habeas petition. Applying this standard, Moreland’s claims 

should have been treated as second or successive. 

In Post, we held that a Rule 60(b) motion that was filed after the petitioner had appealed 

the district court’s denial of his original habeas petition was a second or successive habeas 

petition. 422 F.3d at 421, 424–25. In Clark, we held that a motion to amend filed before the 

time to appeal the district court’s denial of the petitioner’s original § 2255 motion had expired 

was not a second or successive application for relief. In so holding, we relied upon a Second 

Circuit case that held contrary to the holding in Post on facts indistinguishable from those in 

Post. Clark, 764 F.3d at 658–60 (citing Ching v. United States, 298 F.3d 174, 176–81 (2d Cir. 

2002)).3

We recognize that there is broad language in Clark about motions filed before a petitioner 

has “exhausted her appellate remedies.” 764 F.3d at 658. But the actual facts of Clark are that 

the motion was filed before a notice of appeal was filed and before the time for filing such a 

notice expired. Post, in turn, is controlling precedent because “[a] published prior panel decision 

remains controlling authority unless an inconsistent decision of the United States Supreme Court 

requires modification of the decision or this [c]ourt sitting en banc overrules the prior decision.” 

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (internal quotation marks 

omitted). Our duty to follow binding precedent of this court therefore requires us to reconcile

Post and Clark. The actual holdings of the two cases are consistent with—and indeed require—

our conclusion that a Rule 60(b) motion or motion to amend that seeks to raise habeas claims is a 

second or successive habeas petition when that motion is filed after the petitioner has appealed 

the district court’s denial of his original habeas petition or after the time for the petitioner to do 

so has expired. As set out above, Moreland filed his Rule 60(b) motion and motion to amend 

long after he appealed the district court’s decision denying his original habeas petition. 

Moreland’s motions were therefore second or successive habeas petitions even with respect to 

the claims that Moreland raised during the pendency of the appeal from the denial of the first 

habeas petition. The district court lacked jurisdiction to address them when they were originally 

filed. 

 3

The parties in Clark did not cite Post in their briefing to this court. 
No. 15-3306 Moreland v. Robinson Page 11 

III. 

Moreland did not request precertification from this court to file a second or successive 

habeas petition that includes the claims that he seeks to raise in his Rule 60(b) motion and 

motion to amend. Rather than denying Moreland’s motions, the district court should have 

transferred those motions here for processing as requests for permission to present claims in a 

second or successive habeas petition. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). We remedy 

that error by construing Moreland’s briefs as making that request. See In re Bowling, 422 F.3d 

434, 440 (6th Cir. 2005). However, Moreland’s motions still fail because his proposed claims do 

not meet the gatekeeping requirements for raising new claims in a second or successive habeas 

petition. 

Moreland seeks to supplement with new evidence his claims that his jury waiver was not 

knowing, voluntary, and intelligent and that his trial counsel were ineffective when they failed to 

obtain an expert to challenge the State’s blood evidence. However, by doing so, he would be representing already presented claims. Gonzalez, 545 U.S. at 531. “A claim presented in a second 

or successive habeas corpus application under section 2254 that was presented in a prior 

application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Moreland therefore may not file a 

second or successive habeas petition that supplements these claims with new evidence. 

Moreland also seeks to present a new claim that his trial counsel were ineffective when 

they allegedly drugged him and when they allowed him to waive the right to jury trial while 

drugged, as well as a claim that the failure to use certain police reports at trial violated 

Moreland’s rights under Strickland or Brady. Section 2244(b)(2) provides that claims not 

presented in a prior habeas petition shall be dismissed from a second or successive petition 

unless 

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

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

previously unavailable; or 

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

previously through the exercise of due diligence; and 
No. 15-3306 Moreland v. Robinson Page 12 

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

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

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

applicant guilty of the underlying offense. 

Moreland’s new claims do not satisfy these gatekeeping requirements. Moreland’s new claims 

do not rely on a new rule of constitutional law made retroactive by the Supreme Court. Although 

Moreland cites Martinez and Trevino v. Thaler, 133 S. Ct. 1911 (2013), in an attempt to lift the 

otherwise applicable procedural bar that stems from his failure to raise these claims in state 

court, the Martinez rule was equitable, not constitutional. Martinez, 132 S. Ct. at 1319–20. 

Trevino, which was merely an application of the rule established in Martinez, also did not create 

a new rule of constitutional law. 133 S. Ct. at 1921. 

 Moreland’s new claims also do not rely on evidence that was not available when he 

originally filed his habeas petition. He acknowledges as much when he raises the MartinezTrevino arguments. Counsel cannot be ineffective for failing to do what could not be done. By 

accusing counsel of ineffectiveness in not presenting these claims in trial-level state postconviction proceedings, Moreland is necessarily acknowledging that, with due diligence, the 

evidence in support could have been presented then—before he ever got to federal court. 

Further, Moreland and his trial counsel both testified in a 2002 state proceeding that Moreland’s 

trial counsel drugged him before he waived his right to a jury trial. Similarly, Moreland stated 

that he had “reason to believe” that his trial counsel obtained the police records that support his 

other new claim either before his trial or in response to an April 25, 1986 order from the state 

trial court, and that his state post-conviction counsel “obtained unredacted copies of the reports 

during the course of the state court litigation.” Evidence that supported Moreland’s new claims 

was therefore available when he filed his original habeas petition in 2005. These new claims do 

not meet the gatekeeping requirements for presenting claims in a second or successive habeas 

petition. 

IV. 

While it is entirely clear that Moreland’s claims regarding his waiver of his right to a jury 

trial are second or successive, we recognize that the test applied in Part II.B above to determine 
No. 15-3306 Moreland v. Robinson Page 13 

that the other claims were second or successive derives from two of our cases that could be 

clearer. However, even if Moreland’s motions with respect to those issues were not second or 

successive petitions, they were not sufficient to warrant post-judgment relief. Out of an 

abundance of caution in this capital case, we explain why this is so. 

Moreland’s claims regarding a blood expert and regarding certain police reports do not 

present the type of extraordinary circumstances that warrant post-judgment relief.4 Under 

Federal Rule of Civil Procedure 60(b)(6), a “court may relieve a party . . . from a final judgment, 

order or proceeding” for “any other reason that justifies relief.” Rule 60(b)(6) relief is granted 

only in limited circumstances: 

[R]elief 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. This is because almost every conceivable ground for relief is 

covered under the other subsections of Rule 60(b). Consequently, courts must 

apply Rule 60(b)(6) relief only in unusual and extreme situations where principles 

of equity mandate relief. 

In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008) (citing Blue Diamond 

Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001)). In 

order to prevail on his motion to amend, Moreland must also establish that his claims present the 

type of extraordinary circumstances that justify relief under Rule 60(b)(6). This is because a 

party seeking to “amend a complaint after an adverse judgment . . . must shoulder a heavier 

burden than if the party sought to amend a complaint beforehand. Instead of meeting only the 

modest requirements of Rule 15, the claimant must meet the requirements for reopening a case 

established by Rules 59 or 60.” Clark, 764 F.3d at 661 (citation and brackets omitted). 

Moreland seeks to supplement with new evidence his claim that his trial counsel were 

ineffective when they failed to obtain an expert to challenge the State’s blood evidence. This 

 4

Moreland does not appear to contend that the fact that Martinez and Trevino were decided after the district 

court denied Moreland’s original habeas petition by itself constitutes an extraordinary circumstance requiring Rule 

60(b) relief. In any event, such a contention would fail because the change in decisional law represented in Martinez

and Trevino is not, by itself, an extraordinary circumstance warranting Rule 60(b)(6) relief. Henness v. Bagley, 

766 F.3d 550, 557 (6th Cir. 2014); McGuire v. Warden, 738 F.3d 741, 750 (6th Cir. 2013). 
No. 15-3306 Moreland v. Robinson Page 14 

claim does not present extraordinary circumstances that would justify reopening his case after 

the entry of judgment. Moreland acknowledges that his ability to supplement this claim with 

new evidence is procedurally defaulted, but contends that he can pursue his right to present this 

evidence under Martinez and Trevino. This court held in Morris v. Carpenter that Martinez does 

not apply to “claims that were fully adjudicated on the merits in state court because those claims 

are, by definition, not procedurally defaulted.” 802 F.3d 825, 844 (6th Cir. 2015). Moreland 

presented his claim that his trial counsel were ineffective when they did not obtain an expert to 

challenge the State’s blood evidence in state post-conviction proceedings, and the Court of 

Appeals of Ohio denied this claim on the merits. State v. Moreland, No. 17557, 2000 WL 5933, 

at *6–7 (Ohio Ct. App. Jan. 7, 2000). Accordingly, even assuming that Martinez and Trevino 

apply to the Ohio framework that governed Moreland’s post-conviction appeal, these cases do 

not allow Moreland to present new evidence in support of his blood-evidence claim. This claim 

therefore does not present extraordinary circumstances that justify post-judgment relief.

Moreland’s claim that his trial counsel were ineffective when they failed to use certain 

police reports at trial also does not establish that this is the type of extraordinary case in which 

post-judgment relief is warranted. This claim was procedurally defaulted because Moreland 

never presented this claim in his state post-conviction appeal. To excuse this default under 

Martinez, Moreland must demonstrate that this claim “is a substantial one, which is to say that 

[he] must demonstrate that the claim has some merit.” 132 S. Ct. at 1318–19. Even if the 

Martinez-Trevino exception applies to the Ohio framework that governed Moreland’s appeal, his 

police-report claim is not substantial. Moreland therefore cannot excuse his procedural default 

of this claim under the Martinez-Trevino exception. 

This claim is based in part upon police reports that Moreland contends support his theory 

that Eugene Hagans committed the murders for which Moreland was sentenced to death. 

Throughout his appeal, Moreland has consistently attempted to cast Eugene Hagans as an 

alternative suspect for these murders. The homicides that occurred in this case took place in a 

residence that Moreland shared with his girlfriend, Glenna Green. Green’s daughter Tia Talbott 

was also living in the residence. Eugene Hagans was the father of two of Talbott’s children. 

After the homicides occurred, Talbott told the police that Hagans had threatened to kill her. 
No. 15-3306 Moreland v. Robinson Page 15 

Talbott had also previously complained to the police that Hagans had threatened to kill her, and 

had raped, choked, and punched her. Hagans was a suspect in connection with the murders. 

The police reports were allegedly helpful to Moreland because of a discrepancy regarding 

the address where Hagans was arrested. At Moreland’s trial, Officer Doyle Burke testified that 

he located Hagans on the night of the murders at his home at 788 Edgemont Avenue in Dayton, 

Ohio. In the prosecutor’s closing, the prosecutor contended that Hagans was not a suspect in part 

because when the police located him “at his home over on [Edgemont] he was in his underwear 

with his family in the basement. He was out of it and the detectives proved that.” This is 

consistent with a police report that stated that Hagans was arrested on 788 Edgemont Avenue in 

Dayton at 1:25 a.m. on November 2, 1985. However, the Dayton detectives also created a police 

report that stated that Hagans was arrested on the night of the murders at 1325 South Broadway 

Street, a location approximately one half mile away from Hagans’s home. An officer later 

corrected the statement that Hagans was arrested at 1325 South Broadway, noting that the 1325 

South Broadway address was erroneous and that Hagans in fact had been arrested at 788 

Edgemont. 

Moreland has not established that his trial counsel provided ineffective assistance when 

they failed to use at trial the address discrepancy in these police reports. In order to show that his 

trial counsel were ineffective, Moreland must show that “his counsel’s performance was 

deficient and that it prejudiced him. Deficient performance means that ‘counsel’s representation 

fell below an objective standard of reasonableness.’” Nichols v. Heidle, 725 F.3d 516, 539 (6th 

Cir. 2013) (citing Strickland, 466 U.S. at 687–88). When evaluating defense counsel’s 

performance under Strickland, we must “indulge a ‘strong presumption’ that counsel’s conduct 

falls within the wide range of reasonable professional assistance because it is all too easy to 

conclude that a particular act or omission of counsel was unreasonable in the harsh light of 

hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (citing Strickland, 466 U.S. at 689). Further, 

defense counsel need not “pursue every claim or defense, regardless of its merit, viability, or 

realistic chance for success.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). As stated 

above, the police reports are consistent with Officer Burke’s testimony at trial that he arrested 

Hagans in his home, because the report stating that Hagans was arrested at a different location 
No. 15-3306 Moreland v. Robinson Page 16 

was later corrected. The discrepancy in the police reports therefore does not provide much of a 

basis to challenge Hagans’s alibi or to challenge the competence of the detectives’ actions and 

investigation as a whole. Accordingly, Moreland’s trial counsel did not perform deficiently 

when they did not use these police reports at trial. 

Even if Moreland’s trial counsel performed deficiently by failing to use these police 

reports at trial, Moreland was not prejudiced by this failure. A defendant is prejudiced under 

Strickland when there is a “reasonable probability” that, but for his counsel’s deficient 

performance, “the result of the proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. It is not enough to show that 

the errors had some conceivable effect on the outcome of the proceeding.” Harrington v. 

Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693–94) (internal quotation 

marks omitted). The police reports are consistent with the State’s testimony that Hagans was 

arrested at his home, and do not support Moreland’s theory that Hagans committed the murders. 

Accordingly, there is not a reasonable probability that the result at Moreland’s trial would have 

been different if his counsel had used the police reports. 

Moreland’s claim that his trial counsel were ineffective when they failed to use a crimescene report that described the location at which the detectives found his identification card also 

fails to meet the performance and prejudice elements of Strickland. At trial, a detective testified 

that he found a brown leather bag in a closet in the house at which the murders occurred. The 

officer testified that the bag contained Moreland’s identification card, a rifle scope, and 

ammunition. Another detective also testified that Moreland’s identification card was located in 

this bag. One of these detectives created a crime-scene report that stated that a brown leather bag 

was found in a closet inside a room in the house at which the murders occurred. The report 

stated that the bag contained “a scope for a rifle, miscellaneous tools, dice and one round from a 

.357 piece of ammo.” The report also stated that “[t]he ID that was found in this room belongs 

to one Samuel Moreland.” Moreland contends that this crime-scene report contradicts the trial 

testimony that his identification card was located in the bag. To support this argument, 

Moreland claims that since the report stated that his identification was located in the room, but 
No. 15-3306 Moreland v. Robinson Page 17 

did not list the identification along with the other contents of the bag, “the only conclusion to be 

drawn is the ID was not in the bag when it was located.” 

Moreland’s claim again does not satisfy the performance element of Strickland. 

Although the report fails to include the identification card among the items listed in the bag, the 

report never states that the identification card was located in a different part of the house. The 

crime-scene report therefore does not establish that Moreland’s identification card was found 

outside of the bag. Counsel’s performance is not deficient when counsel fails to use evidence 

that “would be of little help” to the defendant. Strickland, 466 U.S. at 699. Accordingly, 

Moreland’s trial counsel did not perform deficiently when they failed to use a crime-scene report 

that would have been of little help to Moreland and that would not have proven that his 

identification card was located outside of the bag that contained the rifle scope. 

Even if Moreland’s counsel performed deficiently when they failed to use this crimescene report, Moreland was not prejudiced by this failure. Moreland argues that evidence that 

Moreland’s identification was not located in the bag that contained the rifle scope would be 

significant because “[a]t trial, the prosecution had very little evidence connecting Moreland to 

the crime.” This contention is unavailing. “Multiple pieces of evidence, including eyewitness 

testimony, Moreland’s admission that he shot a gun near the time of the murders, the drops of 

blood found on Moreland’s clothes that matched the blood types of two of the victims, and 

evidence showing that Moreland argued with Glenna immediately before the murders, support 

his identity as the killer.” Moreland, 699 F.3d at 919. The three-judge panel’s determination 

that Moreland had committed the murders therefore did not hinge upon the panel’s acceptance of 

the State’s testimony that Moreland’s identification card was located in the bag that also 

contained the rifle scope. Accordingly, Moreland has not shown that there is a reasonable 

probability that the result of his trial would have been different if his trial counsel had used this 

crime-scene report. 

In the alternative, Moreland alleges that the prosecution violated Brady v. Maryland, 

373 U.S. 83 (1963), when it failed to provide the police reports relating to Hagans’s arrest and 

the crime-scene report to Moreland’s defense counsel prior to trial. Moreland argues in the 

alternative because he does not know whether his defense counsel received these reports during 
No. 15-3306 Moreland v. Robinson Page 18 

his trial. Even if the Martinez-Trevino exception extends to Moreland’s Brady claim, in order to 

excuse his procedural default of this claim, Moreland would have to show that his underlying 

Brady claim is “substantial.” Martinez, 132 S. Ct. at 1318–19. Moreland fails to meet this 

burden. Strickland and Brady claims use the same “reasonable probability” standard to assess 

prejudice. Strickland, 466 U.S. at 693–94; Kyles v. Whitley, 514 U.S. 419, 434 (1995). For the 

reasons stated above, Moreland did not establish that there was a reasonable probability that the 

result of his trial would have been different if his defense counsel had used the police reports. 

Accordingly, assuming arguendo that the Martinez-Trevino exception applies in Ohio, 

Moreland’s Brady claim—like Moreland’s Strickland claim—does not state a substantial claim 

for relief. Moreland’s Brady claim therefore does not establish that this is the type of 

extraordinary case in which post-judgment relief should be granted. 

The judgment of the district court is affirmed.