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

_________________

S AMUEL M ORELAND , Petitioner-Appellant ,

v

.

N ORM R OBINSON , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 15-3306

Appeal from the United St ates 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 Appella nt. Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ ROGERS, Circuit Judge. In 1986, a three-judge pa nel convicted Samuel Moreland of killing his girlfriend Glenna Gr een, her adult daughter, and three of her grandchi ldren, 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 withprejudice. In 2012, while Moreland’s appeal of that court’s denial of his habeas petition was pending, More land 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 Ci vil 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 expe rt 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 moti ons, the district court should have transferred them to this court to review as request s for permission to be filed. Considered as requests for su ch permission, Moreland’s request s do not meet the gatekeeping requirements for presenting claims in a second or successive habeas petition. Moreland therefore has not established a basis fo r 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 de scribe 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 girlfrie nd Glenna Green, her adult daughter Lana Green, and Glenna Green’s three grandc hildren Violana Green, Datwan Ta lbott, 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 Gr een, 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 di strict court denied and dismissed with prejudice. Moreland timely a ppealed 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—w hile the case was pending in this court and in the interim between oral argument and issuance of opinio n—Moreland filed two moti ons in the district court: a Rule 60(b) motion and a motion for le ave to file an ame nded 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 petiti on. The proposed new claim was th at 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 th ey had it, in violation of Strickland v. Washington , 466 U.S. 668 (1984). The claim to be supplemented—really, subc laim—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 b een held defaulted. Martinezheld that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an in itial-review collateral proceeding, a procedural default will not bar a federal hab eas 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 wa s 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 th e Rule 60(b) motion. On November 15, 2012, this court affirmed the dist rict 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 fi led 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, th e magistrate judge denied the motion to amend for lack of jurisdiction, but without pr ejudice to the motion’s renewal once the mandate issued. Although the magistrate judge ruled di rectly on the motion to amend, he made only a recommendation on the motion for relief from judg ment because that motion was “by definition post-judgment.” Nonetheless, he recommended th e same fate for the motion for relief from judgment: denial for lack of jurisdiction withoutprejudice to renewal once the mandate issued. Six days later, on December 19, 2012, this court denied rehe aring 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 prejudi ce to renewal once the mandate issued. On January 14, 2013, the district court adop ted 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 appeal s 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. Pursua nt to a district-courtorder 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 cl aims that Moreland pres ented in his original motions. Moreland also sought to raise a new ineffective-assi stance-of-trial-c ounsel claim in both of these motions. The new claim was that hi s trial counsel were ineffective when they had sodium pentothal administered to Moreland—a llegedly involuntarily—shor tly 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 an other claim already presented in the original federal petition: Moreland’s claim that he did no t knowingly, intelligently, and volunt arily 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) moti on 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 certif icate 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] mo tion 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 obj ections to the magistrate judge’s report and recommendations, contending th at his motions were not second or successive habeas petitions under Clark . Rather than ruling on the objecti ons, the district court recommitted the matter to the magistrate j udge for a supplemental report. The magistrate judge withdrew the earlier report and recomm endation 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 a dverse 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 Mo reland’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 wa s 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-c onviction appeal, Martinez is “available only to excuse the procedural default of an ine ffective assistance of trial counsel claim which happens when post-conviction counsel provides ine ffective assistance in failing to adequately raise that claim.” Id . at *7. The magistrate judge conclu ded 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 mer its because of procedural defau lt 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 ine ffective assistance of tr ial counsel claims in post-conviction, litigate other ineff ective 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 Distri ct 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 futil e 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 app ealability “[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 re commended a certificate of appealability. Moreland , at *10.

The district court overruled Moreland’s objections, adopted th e revised report and recommendation in its entirety, denied the Ru le 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 jurisdic tion 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 dist rict court of jurisdiction to adjudicate the claims rais ed 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 th e limitations that C ongress 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 determ ine 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 ba sis for relief from a st ate 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 adjudica tion of certain claims on the merits. Id. at 532 n.4. But he is making a habeas claim when he seeks to a dd 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 mo tion 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 cla im based upon his trial counsel’s failure to use certain police reports at trial, and to supplement with new eviden ce a previously litigated claim based upon the failure of his trial counsel to obt ain an expert to challenge the State’s blood evidence. In his refiled motions, Moreland ad ded another new claim based upon his waiver of his right to a jury tria l and sought to supplement with new ev idence a previously litigated claimNo. 15-3306 Moreland v. Robinson Page 8

based upon his waiver of his right to a jury trial. All of thes e claims are second or successive claims for habeas relief that the distri ct 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 s econd or successive claims. This is because Moreland added these claims to his motions after he fully exhaus ted his appellate remedies. A post-judgment motion to amend or Rule 60(b) moti on that raises habeas claims is a second or successive petition when that motion is filed af ter 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 di strict 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, Mo reland 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 pend ing when he filed his revised motions, Moreland exhausted his appellate remedies before he added his jury-wai ver claims to his motions. Accordingly, Moreland’s motions are second or su ccessive petitions to the extent that these motions seek post-judgment relief so that he can raise these claims.

Moreland contends that his revi sed 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 su ccessive 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 th e 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 an alysis of Moreland’s motions.No. 15-3306 Moreland v. Robinson Page 9

establish that the adjudication of Moreland’s or iginal habeas petition was complete only when the time for Moreland to petition the Suprem e Court for rehearing expired. Rather, the Clark court held that a motion to amend was not a sec ond 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. Incontrast 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 petit ion and after the Supreme Court denied his petition for a writ of certiorari. Moreland ther efore had a full opportunity to have his original habeas petiti on adjudicated before he added these new claims to his revised motions. Accordingly, with respect to the rele vant claims, Moreland’s revised motions were second or successive motions for habeas corp us relief even under a broad reading of the Clark opinion. 2

B.

Moreland’s motions are also s econd or successive pe titions to the extentthat 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 wa s 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 pe tition 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 de nial of his original habeas pe tition or after the time for the petitioner to do so has expired. In other words, if the district cour t 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 precertifica tion 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 pe titioner had appealed the district court’s denial of his original ha beas 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 cour t’s denial of the pe titioner’s original § 2255 motion had expired was not a second or successive application for re lief. 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 unles s an inconsistent decision of the United States Supreme Court requires modification of the decision or this [c]ourt sitting en banc overru les 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 hi s original habeas petition or afte r the time for the petitioner to do so has expired. As set out above, Moreland fi led his Rule 60(b) motion and motion to amend long after he appealed the district court’s d ecision denying his original habeas petition. Moreland’s motions were therefore second or succe ssive habeas petitions even with respect to the claims that Moreland raised during the penden cy of the appeal from the denial of the first habeas petition. The district court lacked jurisdic tion 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 reques t 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 Morela nd’s motions, the district court should have transferred those motions here fo r 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 construi ng Moreland’s briefs as making that request. See In re Bowling , 422 F.3d 434, 440 (6th Cir. 2005). However, Moreland’s moti ons still fail because his proposed claims do not meet the gatekeeping requireme nts 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 th e 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 co unsel were ineffective when they allegedly drugged him and when they allowe d him to waive the rightto 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) prov ides 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 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 predicate for the claim could not have been discovered previously through the exercise of due diligence; andNo. 15-3306 Moreland v. Robinson Page 12

(ii) the facts underlying the cl aim, 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 reasona ble factfinder would have found the applicant guilty of the underlying offense. Moreland’s new claims do not satisfy these gate keeping 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 fr om 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 Martinez

Trevino arguments. Counsel cannot be ineffective for failing to do what could not be done. By accusing counsel of ineffectiveness in not pres enting 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 te stified in a 2002 state proceeding that Moreland’s trial counsel drugged him before he waived his right to a jury tria l. Similarly, Moreland stated that he had “reason to believe” that his trial co unsel 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 unr edacted 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 petiti on in 2005. These new claims do not meet the gatekeeping requirements for presen ting 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 succe ssive, we recognize that the test app lied in Part II.B above to determineNo. 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 More land’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 ca se, we explain why this is so. Moreland’s claims regarding a blood expert and regarding cer tain police reports do not present the type of extraordinary circum stances that warrant post-judgment relief. 4 Under Federal Rule of Civil Procedure 60(b)(6), a “court may relieve a pa rty . . . 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 circumscribe d 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), wh ich 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 Ru le 60(b). Consequently, courts must apply Rule 60(b)(6) relief onl y in unusual and extreme s ituations 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 mu st also establish that his claims present the type of extraordinary circumstan ces that justify relie f under Rule 60(b)(6). This is because a party seeking to “amend a complaint after an a dverse judgment . . . must shoulder a heavier burden than if the party sought to amend a comp laint 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 eviden ce his claim that his trial counsel were ineffective when they failed to obtain an expertto 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 circ umstance 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 conte nds that he can pursue hi s 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 defaulte d.” 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 proceedi ngs, 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 Mo reland’s post-conviction appeal, these cases do not allow Moreland to present ne w evidence in support of his bl ood-evidence claim. This claim therefore does not present extraordinary circ umstances that justif y 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 warrante d. This claim was procedurallydefaulted because Moreland never presented this claim in his state post-convi ction appeal. To excu se 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 so me 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 substa ntial. 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 homici des 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 poli ce that Hagans had threatened to kill her.No. 15-3306 Moreland v. Robinson Page 15

Talbott had also previously complained to the polic e 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 closi ng, the prosecutor contended that Ha gans 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 arrest ed 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 th e murders at 1325 South Broadway Street, a location approximately one half mile away from Hagans’s hom e. An officer later corrected the statement that Ha gans was arrested at 1325 Sout h Broadway, noting that the 1325 South Broadway address was erro neous and that Hagans in f act 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 addr ess discrepancy in these police repor ts. 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 pres umption’ that counsel’s conduct falls within the wide range of reasonable professional assistance be cause it is all too easy to conclude that a particular act or omission of counsel was unr easonable 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 de fense, 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 consis tent with Officer Burke’s testimony at trial that he arrested Hagans in his home, because the report stating th at Hagans was arrested at a different locationNo. 15-3306 Moreland v. Robinson Page 16

was later corrected. The discrepa ncy in the police reports theref ore does not provide much of a basis to challenge Hagans’s alibi or to challe nge the competence of the detectives’ actions and investigation as a whole. A ccordingly, Moreland’s trial counsel did not perform deficiently when they did not use thes e police reports at trial. Even if Moreland’s trial counsel performe d 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 woul d 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 probabilitythat the result at Moreland’s trial would have been different if his counsel had used the police reports.

Moreland’s claim that his tria l counsel were ineffective when they failed to use a crimescene report that described the location at which the detectives found his id entification 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 More land’s identification card, a rifle scope, and ammunition. Another detective also testified that Moreland’s identificat ion 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 ho use 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 th at this crime-scene report contradicts the trial testimony that his identification card was locat ed in the bag. To support this argument, Moreland claims that since the report stated th at his identification was located in the room, butNo. 15-3306 Moreland v. Robinson Page 17

did not list the identific ation along with the other contents of the bag, “the only conclusion to be drawn is the ID was not in th e 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 identi fication card was located in a diffe rent part of the house. The crime-scene report therefore does not establish that Moreland’s identi fication 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 th e 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. “M ultiple 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 th e blood types of two of the victims, and evidence showing that Moreland argued with Gle nna immediately before the murders, support his identity as the killer.” Moreland , 699 F.3d at 919. The three-j udge panel’s determination that Moreland had committed the murders therefor e did not hinge upon the panel’s acceptance of the State’s testimony that Moreland’s identification card was lo cated in the bag that also contained the rifle scope. Accordingly, More land 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 rela ting to Hagans’s arrest and the crime-scene report to Moreland’s defense c ounsel prior to trial. Moreland argues in the alternative because he does not know whether his defense counsel received these reports duringNo. 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 ha ve 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 th at there was a reasonable probability that the result of his trial would have b een different if his defense couns el 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 establis h that this is the type of extraordinary case in which post-judg ment relief should be granted. The judgment of the district court is affirmed.