RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0295p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J OE C LARK M ITCHELL , Petitioner

- Appellant
,

v

.

K EVIN G ENOVESE , Warden, Respondent

- Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 19

- 6070

Appeal from the United States District Court for the Middle District of Tennessee at Columbia. No. 1:93

- cv

- 00073

—

William Lynn Campbell, Jr., District Judge.
Argued: May 7, 2020

Decided and Filed: September 4, 2020

Before: MERRITT, GUY, and STRANCH , Circuit Judges.

_________________ COUNSEL

ARGUED: Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF : Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

_________________ OPINION

_________________ JANE B. STRANCH, Circuit Judge. This is an unusually postured pre

- AEDPA habeas case that turns on the Supreme Court’s modern procedural default jurisprudence. In 1986, Joe 

### >No. 19

- 6070 Mitchell v. Genovese Page 2

Clark Mitchell

— a black man

— was convicted by an all

- white jury of raping two white women in
Tennessee. The Warden no longer disputes the assertion that the prosecution’s decision to strike a black prospective juror violated Batson v. Kentucky , 476 U.S. 79 (1986). The district court granted relief on Batson grounds in 1995, but we reversed, holding that Mitchell had to first establish “cause and prejudice” for failing to develop the claim before the state court. Mitchell v.
Rees , 114 F.3d 571, 579 (6th Cir. 1997) (“ Mitchell I ”). We have acknowledged that our holding

was error. See Harries v. Bell , 417 F.3d 631, 635 (6th Cir. 2005). Because Supreme Court precedent now enables Mitchell to show the necessary “cause
, ” and authorizes him to raise his underlying ineffective assistance of counsel (IAC) claim and to seek redress through a Rule 60(b) motion, we REVERSE the district court’s decision, GRANT Mitchell a conditional writ of habeas corpus, and REMAND the case for further proceedings.

I. BACKGROUND

In 1982, Mitchell was indicted on multiple felony charges relating to the rape and robbery of two women in Giles County, Tennessee. Mitchell is black; the crime victims white. The prosecutor later recalled that it was “a highly circumstantial case” against Mitchell. And because, according to the trial judge, “[t]he feelings in that community were so hot and so bad, so prejudicial,” a change of venue motion was granted and the case was tried in Columbia, Tennessee. The trial took place in 1986, months after the Supreme Court announced its seminal
decision in Batson , prohibiting race discrimination in jury selection. 476 U.S. 79.
In Mitchell’s case, two prospective jurors were black; the rest were white. One potential black juror was stricken for cause, the other

— Hattie Alderson

— by the prosecution. The
all

- white jury convicted Mitchell of most of the c rimes charged

— including two counts of aggravated rape. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the convictions save one count of aggravated rape that it reduced to simple rape. No Batson challenge was brought on direct appeal. Mitchell was left with an effective sentence of life plus thirteen years.

Mitchell sought post

- conviction relief in the state trial court. What occurred there is critical because the relief Mitchell seeks here hinges on whether the state court reached his
Batson and IAC

- Batson challenges on the merits, or whether they were barred by a stateNo. 19

- 6070 Mitchell v. Genovese Page 3

procedural rule and thereby procedurally defaulted on federal review. Mitchell’s counsel in state
post

- conviction proceedings was Daniel Runde, a public defender. Mitchell’s petition for post

conviction relief contained thirteen claims of ineffective assistance of counsel, including a claim that his trial counsel should have challenged the racial composition of the jury pool. His petition
did not include a Batson claim, or cl aim that his trial or direct

- appeal attorney was ineffective for not raising a Batson challenge. See Mitchell I , 114 F.3d at 573

– 74. Nor did Mitchell’s petition otherwise challenge the prosecution’s use of a peremptory strike against Ms. Alderson or the racial composition of the petit jury.

At the state post

- conviction hearing, Runde orally moved to add a Batson claim. The prosecution objected, noting that Runde had enjoyed ample time to amend the petition, and the court moved on without ruling on th e issue. At the evidentiary hearing, Runde asked the defendant and trial counsel to testify to their recollection of the prosecution’s strikes against black prospective jurors; but, as the TCCA would note, Runde failed to show how many peremptory strikes were used, who they were used against, or whether black prospective jurors
remained in the venire. Mitchell v. State , No. 01

- C01

- 9007

- CC

- 00158, 1991 WL 1351 (Tenn. Crim. App. Jan. 11, 1991) (“ TCCA Opinion ”). The state post

- conviction court denied relief.
It ruled orally on each claim enumerated in the petition and did not address Batson or Mitchell’s attempt to add a Batson claim.

Mitchell appealed the denial of state post

- conviction relief to the TCCA. There, he raised

a Batson claim in his written fil ings, and, for the first time, a claim that his trial counsel was ineffective for failing to raise a Batson challenge below. See Mitchell v. Rees , 36 F. App’x 752, 753 (6th Cir. 2002) (“ Mitchell II ”). The TCCA denied relief. It reasoned: “[w] e conclude the
lack of evidence on the Batson issue does not justify this Court upsetting the judgment entered in the original cases.” TCCA Opinion , 1991 WL 1351, at *1. The TCCA did not address
Mitchell’s IAC

- Batson claim. Id.

In 1993, Mitchell filed a petition f or habeas relief in federal court which included his
Batson and IAC

- Batson claims. The district court directed a magistrate judge to hold an evidentiary hearing on the Batson claim, where the prosecutor was questioned about his reason for striking Hattie Alderson. The prosecutor testified: Alderson “appeared to be an elderly l ady,No. 19

- 6070 Mitchell v. Genovese Page 4

and it was going to take some concentration, because we did not have any confession, we didn’t have any eyewitness identification, the offender had worn a ski mask the whole time, and there was just a lot of circumstantial evidence. . . . And I just d idn’t think she would be able to follow
that.” On cross

- examination, the prosecutor explained: “There was something about her appearance or personality that just didn’t fit with me,” albeit denying on re

- direct that Ms.
Alderson was stricken because of he r race. The district court granted habeas relief on Mitchell’s
Batson claim, finding the prosecutor’s explanation for striking Ms. Alderson “not worthy of
belief.” It did not address Mitchell’s IAC

- Batson claim.

The state appealed, arguing that the distr ict court erred by holding an evidentiary hearing,
and the Mitchell I Court agreed. 114 F.3d at 578

– 79. We held that the court erred by holding an evidentiary hearing without first finding (1) cause and prejudice to overcome Mitchell’s failure to develop the factual basis for his Batson claim in state court, or (2) that a hearing was necessary to avoid a miscarriage of justice. We remanded to allow Mitchell an opportunity to
make the cause

- and

- prejudice showing needed to overcome procedural default, such that he would be entitled to an evidentiary hearing under Keeney v. Tamayo

- Reyes , 504 U.S. 1 (1992). But we later acknowledged that under the pre

- AEDPA authority that governed Mitchell’s habeas petition, our Mitchell I holding was wrong: it was within th e district court’s authority to hold the evidentiary hearing on Mitchell’s Batson claim without a cause

- and

- prejudice showing. See
Abdur’Rahman v. Bell , 226 F.3d 696, 705

– 06 (6th Cir. 2000); Harries , 417 F.3d at 635.

On remand, the district court granted habeas relief again

— this time on the merits of
Mitchell’s IAC

- Batson claim. It reasoned that Mitchell successfully showed cause and prejudice
under Keeney to excuse procedural default, which established the propriety of the previously held evidentiary hearing. The district court went on to conclude that Mitchell was entitled to
merits relief on both his Batson and IAC

- Batson claims

. To excuse procedural d efault and reach
the merits determination that Mitchell’s IAC

- Batson claim warranted habeas relief, however, the Report & Recommendation misguidedly reasoned that trial counsel’s performance provided
cause to excuse post

- conviction counsel’s failure to rai se Mitchell’s Batson and IAC

- Batson claims. We again reversed, reasoning that “ [t] he threshold showing Mitchell was required to
make in the proceedings on remand was that he had cause for his failure to develop that [ sic ]No. 19

- 6070 Mitchell v. Genovese Page 5

state post

- conviction record.” M itchell II , 36 F. App’x at 754. Mitchell II instructed the district

court to deny habeas relief because Mitchell failed to show cause under Keeney

. Id. at 753

– 54.

Mitchell’s case then entered a procedural thicket. He challenged the holding in Mitchell I pursuant to a Rule 60(b)(6) motion, and the district court granted habeas relief for a third time. But, for the third time, we reversed, reasoning that Mitchell’s motion should have been construed
under Rule 60(b)(1) and thus was untimely. Mitchell v. Rees , 261 F. App’x 825, 828

– 30 (6th Cir. 2008) (“ Mitchell III

”) (“ Mitchell I was erroneous when decided [but] . . . [i] t was an abuse of
discretion to grant relief un der Rule 60(b)(6).”). And yet, that too was wrong, and we later recognized our error and abrogated Mitchell III ’s jurisdictional understanding of Rule 60(b)(1)’s
time limit. Penney v. United States , 870 F.3d 459, 462 (6th Cir. 2017). But not in time to help
Mitchell.

Meanwhile, Mitchell challenged his conviction under Rule 60(d). But we held that our “regrettable” error “in Mitchell I . . . was no more than an ‘ordinary legal error,’ fully anticipated by Rule 60(b)(1), and, therefore, not a ‘grave mi scarriage of justice’ that would warrant an independent action under Rule 60(d).” Mitchell v. Rees , 651 F.3d 593, 597 (6th Cir. 2011) (“ Mitchell IV

”).

In 2012, the Supreme Court decided Martinez v. Ryan , holding that when a state limits
the consideration of ineffective assistance of trial counsel claims to collateral review, a habeas petitioner may establish cause for procedural default if (1) state post

- conviction counsel was
ineffective under Strickland and (2) the underlying claim has “some merit.” 566 U.S. 1, 14 (2012). This rule modified the Supreme Court’s previously unqualified holding in Coleman v. Thompson , 501 U.S. 722, 752

– 53 (1991), that post

- conviction counsel’s “ignorance or inadvertence in a postconviction proceeding,” including its failure to raise an ineffective assistance of trial counsel claim, does not qualify as cause to excuse procedural defaul t. Martinez , 566 U.S. at 9; see also Buck v. Davis , 137 S. Ct. 759, 770

– 71 (2017). In Trevino v.
Thaler , the Supreme Court extended the Martinez exception to the Coleman rule to state collateral review systems that, without formally requiring defendants to reserve ineffective assistance of trial counsel claims for collateral review, deny them “a meaningful opportunity” to raise such claims on direct appeal. 569 U.S. 413, 429 (2013).No. 19

- 6070 Mitchell v. Genovese Page 6

In the wake of Martinez and Trevino , Mitchell moved for relief from jud gment under Rule 60(b)(6). Construing this motion as a successive habeas petition, the district court transferred the case to the Sixth Circuit. We concluded, however, that the petition was not second or successive because the motion challenged a ruling “which precluded a merits determination;” the motion was properly construed under Rule 60(b)(6). In re: Mitchell , No. 13

- 6614 (6th Cir. Aug. 21, 2014) (“ Mitchell V ”).

On remand, the Magistrate Judge recommended that the district court reopen the petiti on under Rule 60(b)(6), find that Martinez applies, and grant habeas relief on the merits of
Mitchell’s IAC

- Batson claim. The district court disagreed, reasoning that as a matter of law, Sixth Circuit caselaw precluded Mitchell from using Martinez to seek relief. On that basis alone, the district court denied Mitchell’s Rule 60(b)(6) motion. But it granted a certificate of appealability. 1 Mitchell now appeals.

II. ANALYSIS

A. Standard of Review

The denial of a Rule 60(b) motion is reviewed for abuse of discretion. Tyler v. Anderson
, 749 F.3d 499, 509 (6th Cir. 2014) (citing Yeschick v. Mineta , 675 F.3d 622, 628 (6th Cir. 2012)). “A district court abuses its discretion when it . . . improperly a pplies the law.” Ross v. Duggan , 402 F.3d 575, 581 (6th Cir. 2004). This court reviews a district court’s interpretation of precedent de novo. Kelly Services, Inc. v. Creative Harbor, LLC , 846 F.3d 857, 869 (6th Cir. 2017).

B. Discussion

Mitchell asks this court to reopen habeas proceedings under Rule 60(b)(6) and to grant a writ of habeas corpus

— as the district court did in 1995, 1999, and 2006. To prevail, Mitchell must show that (1) he would be entitled to relief under Martinez and its Sixth Circuit progeny in light of the pre

- AEDPA procedural default rules that govern his case; and (2) the facts and

1 It concluded: “Reasonable jurists would find it debatable whether the petition states a valid ineffective

assistance

- of

- counsel/ Batson claim, and reasona ble jurists would find it debatable whether the Court is correct in its ruling on the Rule 60(b)/

Martinez issue.”No. 19

- 6070 Mitchell v. Genovese Page 7

history of his case present the requisite “extraordinary circumstances” for relief under Rule 60(b)(6).

First, though, the Government ma kes a threshold argument that can be disposed of quickly. It argues that because “ Martinez alone does not represent the type of ‘extraordinary circumstances’ sufficient to grant Rule 60(b)(6) relief,” the district court properly denied relief.
But while Martinez alone does not amount to an exceptional circumstance under Rule 60(b), we have already determined that Martinez can unlock relief under Rule 60(b)(6) when coupled with a sufficient equitable justification. Miller v. Mays , 879 F.3d 691, 698

– 700 (6 th Cir. 2018); see also Moore v. Mitchell , 848 F.3d 774, 776

– 77 (6th Cir. 2017) ; McGuire v. Warden, Chillicothe
Correctional Institution , 738 F.3d 741, 750 (6th Cir. 2013). Indeed, Rule 60(b)(6) is an equitable remedy to be decided as a “‘case

- by

- case inq uiry’ . . . [that] ‘intensively balance[s] numerous factors, including the competing policies of the finality of judgments and the incessant command of the court’s conscience that justice be done in light of all the facts.’” Miller , 879 F.3d at 698 (quoting West v. Carpenter , 790 F.3d 693, 697 (6th Cir. 2015)). As occurred in
Buck
, Martinez

— if applicable

— would open the door to equitable relief under Rule 60(b)(6).
137 S. Ct. at 779

– 80. We now turn to the substantive issues in thi s case.

1. The Application of Martinez to Mitchell’s IAC

- Batson Claim

To obtain Rule 60(b)(6) relief, Mitchell must show that, as in Buck
,

“ Martinez and Trevino, not Coleman, would govern his case were it reopened.” Buck
, 137 S. Ct.

at 780. We therefore start by reviewing the application of Martinez to Mitchell’s claim.

Before doing so, it is useful to list the issues that are not in dispute. The Warden does not challenge Mitchell’s contention that the prosecution struck Hattie Alderson in violation of
Batson and that this constitutional violation would, if challenged directly, entitle Mitchell to a

new trial. He does not dispute that the evidence presented at the federal evidentiary hearing in
1994 established a Batson violation, or the merits of Mitchell’s IAC

- Batson claim. Nor does the
Warden argue that we are bound by Mitchell I

— a ruling expressly disavowed by binding
caselaw. Abdur’Rahman , 226 F.3d at 705

– 06; Harries , 417 F.3d at 635. The Warden’s onlyNo. 19

- 6070 Mitchell v. Genovese Page 8

contention on appeal is that Mitchell simply does not have a viable procedural avenue to challenge Mitchell I ’s mistake and the Batson and IAC

- Batson violations preceding it.

Considerable agreement also exists concerni ng Mitchell’s Martinez challenge. There is

no dispute that the Martinez / Trevino exception applies in Tennessee. Sutton v. Carpenter
, 745 F.3d 787, 795 (6th Cir. 2014). And the Warden does not argue that Mitchell’s attempt to use the exception here is barred by Teague v. Lane , 489 U.S. 288 (1989) or the doctrine governing retroactivity of the Supreme Court’s criminal procedure decisions. S ee Buck
, 137 S. Ct. at 780. If, as the Magistrate Judge found, Martinez applies, its test is fulfilled: (1) state post

- conviction
counsel was constitutionally ineffective for failing to raise and develop the IAC

- Batson issue,
and (2) the underlying ineffe ctive assistance of trial counsel claim has “some merit.” Martinez , 566 U.S. at 14. The Warden has waived any argument to the contrary. And, indeed, a district

court has already granted relief under Strickland on Mitchell’s IAC

- Batson claim. Finally, t he parties agree that because Mitchell’s habeas petition was filed before Congress passed AEDPA,
AEDPA does not govern this case.

The crux of the issue is whether Mitchell’s IAC

- Batson claim was procedurally
defaulted. If so, there is no dispute that Mart inez and the Supreme Court’s cause

- and

- prejudice jurisprudence applies. But the district court held that Mitchell’s IAC

- Batson claim was not procedurally defaulted in state post

- conviction proceedings and was instead adjudicated on the
merits such that Mar tinez does not apply.

This is a change of course. Twice before, we applied the procedural default doctrine to

reverse decisions by the district court to grant habeas relief to Mitchell, ruling that he had failed

to show cause for not presenting or sufficiently developing his IAC

- Batson and Batson claims on the merits.

a. Pre

- AEDPA Procedural Default Doctrine

To assess whether Mitchell’s present claims were procedurally defaulted, it is necessary

to call up the then

- operative framework. Before Con gress promulgated AEDPA, a state post

conviction court’s “determination

. . . of a factual issue” was insulated with a “presumption of correctness,” unless, among other exceptions, the material facts that were the basis of itsNo. 19

- 6070 Mitchell v. Genovese Page 9

determination were “not adequ ately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3) (1993, repealed). In that era, district courts possessed the inherent authority to hold an evidentiary hearing to settle disputes of material fact. See Harries , 417 F.3d at 635 (“[D] espite the holding in Mitchell [I], a district court does have the inherent authority to order an evidentiary hearing.” (quoting Abdur’Rahman , 226 F.3d at 705

– 06)). But there were also scenarios where pre

- AEDPA Supreme Court precedent required distri ct courts to hold an evidentiary hearing. Abdur’Rahman , 226 F.3d at 705 (citing Townsend v. Sain , 372 U.S. 293 (1963), overruled in part by Keeney , 504 U.S. 1). Though the district court’s prerogative to hold such hearing was “constrained only by his sou nd discretion,” Townsend enumerated six situations where a district court was required to hold a hearing, including when “material facts were not adequately developed at the state

- court hearing.” 372 U.S. at 313, 318. Note the overlap with 28 U.S.C. § 22 54(d)(3) (1993, repealed).

In Keeney , the Supreme Court overruled Townsend ’s mandatory hearing directive “holding that the cause and prejudice test applies to a habeas petitioner’s failure to develop
material facts at the state court level.” Abdur’Rahman
, 226 F.3d at 705 (citing Keeney , 504 U.S. at 5)

. But it noted that the exceptions to the presumption of correctness listed in § 2254(d)

— passed after Townsend

— “indicate[] no assumption that the presence or absence of any of the statutory exceptions will determine whether a hearing is held.” Keeney , 504 U.S. at 10 n.5. In other words, Keeney did not purport to disturb the “viability of Townsend ’s statement tha t a
district court may order an evidentiary hearing” to resolve factual disputes even following § 2254(d). Abdur’Rahman , 226 F.3d at 705

– 06 (emphasis added). The Abdur’Rahman Court explained: “Thus, Mitchell [ I ]’s statement that a district court is without authority to order an evidentiary hearing in the absence of one of the exceptions listed in § 2254(d) is overbroad in that it fails to recognize the inherent authority that a district court always has in habeas c ases to order evidentiary hearings to settle disputed issues of material fact.” Id . at 706. Mitchell I ’s
error in 1997 was to mistake Keeney ’s requirement that a petitioner show cause and prejudice to be entitled to a federal evidentiary hearing as an “e xpress limitation on the district court’s jurisdiction,” 114 F.3d at 577, and its then

- existing discretionary authority to hold an evidentiary hearing absent a cause

- and

- prejudice showing. Abdur’Rahman , 226 F.3d at 705

– 06; Harries , 417 F.3d at 635.No. 19

- 6070 Mitchell v. Genovese Page 10

How Mitchell I applied a misinterpretation of Keeney to Mitchell’s case matters to Mitchell’s ability to show that his IAC

- Batson claim is procedurally defaulted. Critically, Keeney held that under Coleman , a habeas petitioner must show cause and prejudice to challenge
state post

- conviction counsel’s failure to raise or to properly develop a claim. Keeney , 504 U.S.
at 7

– 8. The Court explained: “[w]e appl[y] the cause

- and

- prejudice standard uniformly to state procedural defaults . . . it is similarly irration al to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim.” Id. In
Mitchell I , we held that while the district court abused its discretion in holding an evidentiary
hea ring, the “material facts were not adequately developed at the State court hearing,” such that
the § 2254(d)(3) exception to the presumption

- of

- correctness applied. Mitchell I , 114 F.3d at
577. Mitchell I concluded that this constituted a procedural defa ult and reversed the district court’s decision granting Mitchell a new trial on the sole basis that he was unable to show cause
under Keeney

.

b. The Present District Court Opinion

Fast

- forward to 2019. The district court opinion currently on appeal rejected the Magistrate Judge’s Report and Recommendation (that would have, for a fourth time, granted federal habeas relief) on the sole basis that in the Sixth Circuit, the Martinez ex ception to establish cause does not apply “in cases where a defendant’s state post

- conviction counsel technically identifies an ineffective

- assistance

- of

- trial

- counsel claim in the state post

- conviction proceeding, but (ineffectively) fails to present evid ence to support that claim.” The decision sought to rely on West , 790 F.3d at 698

– 99 and Moore v. Mitchell , 708 F.3d 760, 785 (6th Cir. 2013). It acknowledged that our analyses in West and Moore turned on AEDPA caselaw

— and specifically, Cullen v. Pinhols ter , where the Supreme Court held that a habeas petitioner who raised IAC claims in state post

- conviction could not rely on new evidence presented in federal court to show that the state court unreasonably adjudicated his constitutional claim on the merits

. See 563 U.S. 170 (2011). But the decision below reasoned that West governed this case, notwithstanding its recognition that Mitchell’s case occurred before AEDPA was passed.No. 19

- 6070 Mitchell v. Genovese Page 11

Interpreting our opinion in Mitchell II as holding that the TCCA’s decision amounted to a ruling on the merits of Mitchell’s Batson and IAC

- Batson claim, the decision below held that
West barred relief. The decision quoted Mitchell II : As we pointed out in Mitchell I, and contrary to the fin ding of the district court on remand, it is clear from the record in the state court proceedings that Mitchell did not raise in his state court post

- conviction petition either a Batson claim or a claim of ineffective assistance related to Batson. At the h earing on that petition, however, he was permitted, over the objection of the State, to present evidence with regard to the Batson claim. The state court found no merit to any of his claims and dismissed the petition. On appeal, Mitchell explicitly raised both

a Batson claim and a Batson

- related ineffective assistance of counsel claim. The state appellate court that reviewed the dismissal of Mitchell’s post

- conviction petition found that “the lack of evidence on the Batson issue does not justify this Court in upsetting the judgment entered in the original cases,” and in Mitchell I, we held that to be a finding of fact that was “fairly supported” by the state court record. Id at 578

– 79. The district court was not free to overrule our conclusion.

36 F. App’x at 753 n.3, 754. In sum, the district court concluded: “[g]iven the Sixth Circuit’s conclusion that post

- conviction counsel identified Petitioner’s claim and the state appeals court rejected the claim on the merits, and the West Court’s determinatio n that such a claim does not
fall within Martinez ,” Mitchell was precluded from seeking relief under Rule 60(b).

c. Arguments on Appeal

In response to any claim that Mitchell II might be read to intimate that the state post

conviction court decided his IAC

- Batson claim on the merits, Mitchell points out that we have repeatedly considered and treated his claim as procedurally defaulted. See, e.g.
, Mitchell I , 114
F.3d at 578 n.11 , 579 n.13 . He notes that contemporaneous Tennessee procedural law required that he present all claims for relief in his post

- conviction petition, Tenn. Sup. Ct. R. 28 § 2(D), § 5(E)(3), and, as a result, the post

- conviction court treated his Batson and I AC

- Batson claims as
waived.

Alternatively, Mitchell argues that if we find he properly asserted a federal claim in state

court

— through post

- conviction counsel’s direct examination of Mitchell and trial counsel and
the inclusion of his IAC

- Batson claim on appeal to the TCCA

— then Keeney ’s extension of
Coleman ’s cause

- and

- prejudice doctrine to insufficiently developed claims removes any doubtNo. 19

- 6070 Mitchell v. Genovese Page 12

that he falls within Martinez . Mitchell explains that Coleman ’s cause doctrine was extended to
his case when Keeney swept failure

- to

- develop claims under Coleman ’s procedural default rule.
The Mitchell I Court found that Mitchell had to show cause under Keeney/Coleman , and
Martinez has retroactively modified Coleman ’s cause doctrine. And so, Mitchell argues, “by
modif ying Coleman
, Martinez now enables Mitchell to show the Coleman cause that this court demanded of him when denying relief in 1997 and 2002.”

Mitchell asserts that Moore , West , and the other post

- AEDPA caselaw cited by the Warden are inapposite to pre

- AEDPA cases

— that they stand only for the undisputed proposition
that Martinez cannot be used post

- AEDPA to circumvent Pinholster ’s rule prohibiting federal
habeas tribunals from a dmitting new evidence upon which to assess the reasonableness of a state court’s constitutional analysis. See Moore , 708 F.3d at 785. And in West , Mitchell notes, while
the IAC claim was defaulted on appeal from the state court’s post

- conviction decision , West, unlike Mitchell, was permitted to present evidence below relating to the claim upon which the
state post

- conviction court based its merits ruling; in short, the claim was not in default.
790 F.3d at 696

– 98. In contrast, Mitchell’s post

- conviction counsel failed to present evidence to support his IAC

- Batson claim. This is why Mitchell I remanded the case under Keeney for Mitchell to show cause. Mitchell asserts that his factual and procedural situation cannot be
considered a merits determination akin to West

. The Warden argues that because Mitchell’s IAC

- Batson claim “was not procedurally defaulted, and was actually decided on the merits, Martinez provides no basis for relief.” He contends that despite this court’s consistent statement that Mitch ell did not raise a Batson or IAC

- Batson claim in his state post

- conviction petition, see e.g. , Mitchell II , 36 F. App’x at 753 n.3, Mitchell did present a Batson claim in a 1988 pro se petition that challenged the racial composition of the jury pool in Maury County. Second, the Warden asserts that the TCCA’s
conclusion that “the lack of evidence on the Batson issue does not justify this Court in upsetting the judgment entered in the or iginal cases,” was, by its terms, a decision on the merits. Third, the Warden argues that because Tennessee has not invoked an independent and adequate state procedural rule that would foreclose review of Mitchell’s claim on the merits, his claims are not procedurally defaulted. See Peoples v. Lafler , 734 F.3d 503, 512 (6th Cir. 2013).No. 19

- 6070 Mitchell v. Genovese Page 13

d. Analysis of Mitchell’s IAC

- Batson Claim

Martinez applies to Mitchell’s case for several reasons. First, we have repeatedly viewed
post

- conviction counsel’s failure t o bring an IAC

- Batson claim in Mitchell’s state habeas petition, and subsequent inability to rectify that mistake, to constitute a procedural default

— and have declined to hear the merits of his claims on that basis. Second, Martinez is an equitable
decisi on meant to relieve habeas petitioners who, like Mitchell, are unable to present their merits contentions to any court because they received two constitutionally inadequate lawyers in a row. Third, Sixth Circuit caselaw does not preclude a pre

- AEDPA habea s petitioner from bringing a
failure

- to

- develop IAC claim using Martinez . Neither the fact that Mitchell challenged the racial composition of the jury pool nor that the State did not cite a specific procedural rule barring Mitchell’s claim has any effect on this conclusion.
We necessarily begin with Mitchell’s appeal from the denial of state post

- conviction relief. There, the TCCA reviewed the testimony Runde elicited from Mitchell and trial counsel about the prosecution’s use of peremptory strikes, and R unde raised a written Batson claim for the first time. Denying relief, the TCCA ruled:
The record does not show how many peremptory challenges were used by the state or whether the district attorney general exercised peremptory challenges to

excuse those who were not a member of the minority class involved in this complaint; nor does the record show whether there were other black persons left in the venire who might have been called to serve in this case.
We conclude the lack of evidence on the Batso n issue does not justify this Court upsetting the judgment entered in the original cases.

TCCA Opinion , 1991 WL 1351, at *1. It is readily apparent that the TCCA denied Mitchell’s
Batson claim because, without knowing the basic factual history of the clai m

—how peremptory strikes were actually used

— he could not “ establish a prima facie case of purposeful discrimination in selection of the petit jury.” Batson , 476 U.S. at 96; Mitchell I , 114 F.3d at 578 (“Without that evidence, the state court could not hav e determined whether the peremptory challenges were exercised in a ‘pattern’ of strikes.”). The TCCA’s holding was specifically predicated on a “lack of evidence” regarding the facts that pertain to a prima facie Batson claim.
TCCA Opinion , 1991 WL 1351, at *1. And when Runde sought to go back and provide theNo. 19

- 6070 Mitchell v. Genovese Page 14

missing facts relating to the race of the prospective jurors and the parties’ use of peremptory strikes, his request for a further hearing on remand was not granted. TCCA Opinion , 1991 WL 1351, at *1. While the TCCA’s one

- page opinion did not cite a then

- existing state law procedural rule , Mitchell’s claims raised for the first time on appeal would have been waived under contemporaneous Tennessee law. See Black v. Blount , 938 S.W.2d 394, 403 (Tenn . 1996).
In his brief before this court, the Warden contends that Mitchell’s arguments challenging the racial composition of the jury pool in Maury County constitutes a Batson claim. Mitchell’s jury pool claim, however, was not a Batson claim, let alone an IAC

- Batson claim. See Mitchell
I , 114 F.3d at 574 n.5 (“None of these is a Batson claim.”). The jury pool challenge is a distinct issue: it did not purport to challenge th e prosecution’s use of peremptory strikes and it did not address purposeful race discrimination by the prosecution during selection of the petit jury.
Batson , 476 U.S. at 96.

Even Mitchell II ’s characterization of Mitchell’s Batson and IAC

- Batson , which is the Warden’s only support for the assertion that the TCCA decided these claims on the merits, recognized that the IAC

- Batson claim was “raised for the first time in Mitchell’s appeal of his
state court post

- conviction petition.” 36 F. App’x at 753. In sum, the TCCA had no Batson or IAC

- Batson claim before it to adjudicate on the merits. It simply commented on the lack of
evidence and denied relief.

The district court decision presently un der review, however, concluded that the TCCA’s holding should be considered a merits decision based on its determination that one of our opinions had characterized it as such. Mitchell II is the only possible support for this
conclusion

— and it is fleeting . There, we did note that the TCCA’s decision declining to reopen Mitchell’s case because of a lack of evidence was a “finding of fact,” and that in Mitchell I we found such a finding was “fairly supported” by the state court record. Mitchell II , 36 F. A pp’x at 754 (quoting Mitchell I, 114 F.3d. at 578

– 79). But a review of Mitchell I adds necessary context.
Mitchell I found it “fairly supported” that there was insufficient evidence in the record upon which the state courts could adjudicate Mitchell’s Batson and IAC

- Batson claim. Mitchell I , 114
F.3d at 578. The Mitchell I Court observed that “the state appellate cour t reviewed the evidence presented in the course of the hearing on the post

- conviction petition, made findings of fact bothNo. 19

- 6070 Mitchell v. Genovese Page 15

as to what the record did show and what it did not show in regard to the Batson claim,” but then recognized that it was dismissed for “lack of evidence.” Mitchell I , 114 F.3d at 576

– 77. The
TCCA opinion itself confirms this reading; its comment about “lack of evidence” directly
follows its list of requisite Batson evidence missing from the record. TCCA Opinion , 1991 WL 1351, at *1.

Mitchell I observed that the TCCA “found that there was insufficient evidence in the
record to rule upon th[at] claim;” it did not hold that the state court heard and rejected Mitchell’s
Batson or IAC

- Batson claims on the merits. Id. at 577. Our disposi tion confirms this: Mitchell I
took away the new trial granted to Mitchell by the district court in 1995 because he was unable to
show cause for his failure to bring the claim such that it could be decided on the merits. Id. at
579. The 2019 decision bef ore us was thus mistaken to conclude that Mitchell I viewed the
TCCA decision as a rejection of Mitchell’s Batson or IAC

- Batson claim on the merits and that it

was not subject to procedural default. Quite the opposite. Noting that the state could have

— bu t
failed to

— argue waiver, id. at 574 n.5, we held in Mitchell I that “ petitioner’s failure to develop in the state court proceedings the material facts necessary to support his [ Batson and IAC

- Batson claims] is a procedural default .” 114 F.3d at 578 n.11 (emphasis added).

Since Mitchell I , we have called Mitchell’s Batson and IAC

- Batson claims procedurally defaulted. Most recently, in Mitchell V , we held that Mitchell’s present Rule 60(b)(6) motion is not a habeas petition because it “merely asserts that a previous ruling which precluded a merits
determination was in error.” Mitchell V , No. 13

- 6614 at *5

– 6 (quoting Gonzalez v. Crosby
, 545 U.S. 524, 532 n.4 (2005) (giving procedural default as an example of a denial on non

- merits grounds)). The Mitc hell V Court concluded that, “under Gonzalez v. Crosby , Mitchell’s argument that Martinez v. Ryan and Trevino v. Thaler demonstrate ‘cause’ to excuse procedural
default of his Batson claim does not assert a ‘claim’ and therefore should not be interpreted as a second or successive habeas petition.” Id. at *6. And the panel permitted Mitchell to move forward under Rule 60(b)(6).

We have not simply called Mitchell’s claims procedurall y defaulted; we have treated
them as procedurally defaulted, beginning in 1997, under the ultimately mistaken view of a pre

AEDPA district court’s authority to hold an evidentiary hearing. Harries , 417 F.3d at 635.No. 19

- 6070 Mitchell v. Genovese Page 16

Mitchell’s “procedural default,” the Mi tchell I Court reasoned, “ can be excused by the federal habeas court only upon a showing of cause and prejudice.” 114 F.3d at 578 n.11. We therefore
vacated the district court’s dismissal of the claim and remanded the case to decide whether
Mitchell had made an adequate cause

- and

- prejudice showing under Keeney

. Id. at 579 n.13 (“ If petitioner were able to demonstrate that he was entitled under Keeney to an evidentiary hearing on his Batson claim, and if he were then able to demonstrate that that claim ha d merit . . . , then he might also be able to prevail on this related ineffective assistance claim.”) Recall that on appeal from the remand proceedings, we overturned habeas relief again; without citing
Coleman directly, we reasoned that Mitchell was unable to show “cause for [his] failure to develop the record in the [state] post

- conviction proceedings.” Mitchell II , 36 F. App’x at 754 (emphasis omitted). Mitchell has since been unable to present his evidence of a Batson or IAC

Batson violation to any court

— apart from the district court that heard the evidence in 1994 and granted Batson relief in 1995. Our court’s treatment of Mitchell’s IAC

- Batson claim is fully consistent with the label we gave his claims; both support the conclusion that Mitchell’s claim was procedurally defaulted.

Martinez itself confirms its application to Mitchell’s case. It recognized “as an equitable matter, that the initial

- review collateral [here, the state post

- conviction] proceed ing, if undertaken without counsel or with ineffective counsel, may not [be] sufficient to ensure that proper consideration was given to a substantial claim.” 566 U.S. at 14. The Court was careful not to announce a constitutional right to counsel in post

- conviction proceedings, id. at 16, instead holding that “[t]o protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Id. at 9. This is because, the Supreme Court reasoned, “[w]hen an attorney
errs in initial

- review collateral proceedings, it is likely that no state co urt at any level will hear the prisoner’s claim.” Id. at 10. The Court continued, “[a]nd if counsel’s errors in an initial

review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims.” Id. at 10

– 1 1. Mitchell is caught in that very box. The Martinez Court’s equitable judgment that the provision of consecutiveNo. 19

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constitutionally ineffective lawyers should not preclude a habeas petitioner from his day in cour t applies to Mitchell. See also Buck , 137 S. Ct. at 780.

West , Moore , and AEDPA decisions interpreting the application of Martinez to “failure

to

- develop” claims do not alter this result. First, under the AEDPA version of § 2254(d), a
federal habeas tr ibunal’s review of the state court’s constitutional analysis is limited to the record
before the state court. Pinholster , 563 U.S. 180

– 81. Where Pinholster and AEDPA apply, our circuit has declined to permit habeas petitioners to use Martinez to supplement the record in
“failure

- to

- develop” cases. Moore , 708 F.3d at 785. But, as the parties agree, Pinholster does not apply to Mitchell’s pre

- AEDPA habeas petition. 2 Those cases, moreover, involved other
barriers to relief. In Moore , for exa mple, the petitioner was permitted to raise his IAC claim on direct appeal and the Ohio Supreme Court rejected in it on the merits. Id. That scenario does not implicate Martinez . Similarly, in West , the petitioner brought his IAC claim in the initial

- re view collateral proceeding and received a ruling on the merits

— post

- conviction counsel simply failed to press the issue such that it was defaulted on appeal. 790 F.3d at 698. These cases are doubly inapposite because they (1) do not involve claims that w ere defaulted in the initial

- review collateral proceeding, and (2) apply Pinholster /AEDPA’s separate and independent limit on the availability of a federal evidentiary hearing. West and Moore do not preclude the application of
Martinez to this case.

Mitc hell’s IAC

- Batson claim was procedurally defaulted and the provision of two constitutionally inadequate lawyers operated to preclude any court from hearing his IAC

- Batson
claim on the merits. Martinez is applicable; Mitchell’s case falls within the narrow set of cases
for which Martinez opens the door to equitable relief.

2 Mitchell argues in the alternative, that even if AEDPA applied to his case, Pinholster and § 2254(d) would not bar relief because the TCCA’s decision did not constitute an adjudication of Mitchell’s Batson and IAC

- Batson claims on the merits. See McClellen v. Rapelje
, 703 F.3d 344, 351 (6th Cir. 2013) (state court decision that made no “relevant factual findings” not an adjudication on the merits for purposes of § 2254(d)); see also Dickens v. Ryan , 740 F.3d 1302 (9th Cir. 2014) (en banc) (Facts presented in federal c ourt that “fundamentally alter the legal claim already considered by the state courts” entail a new claim that is considered procedurally defaulted but restorable through Martinez (assuming its conditions are met) notwithstanding Pinholster ’s rule against supplementing the record on claims already presented to the state courts.). Despite the viability of this argument, because the parties agree that AEDPA does not apply to Mitchell’s case, it need not be reached.No. 19

- 6070 Mitchell v. Genovese Page 18

2. Equitable Considerations for Relief under Rule 60(b)

Martinez applies but alone does not warrant relief. Miller
, 879 F.3d at 700. Extraordinary circumstances must be present. Gonzalez
, 545 U.S. at 535. These may include
“the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Servs

. Acquisition Corp.
, 486 U.S. 847, 863

– 64 (1988). In
Buck
, the underlying constitutional violation was severe: Buck’s own psychology expert testified
“that one of the factors pertinent in assessing a person’s propensity for violence was his race.”
137 S. Ct. at 767. The Supreme Court reasoned: “[r] elying on race to impose a criminal sanction ‘poisons public confidence’ in the judicial process. It thus injures not just the defendant, but ‘the law as an institution, . . . the community at large, and . . . the democratic ideal reflected in the processes of our courts.’ Such concerns are precisely among those we have identified as supporting relief under Rule 60(b)(6).” Buck , 137 S. Ct. at 778 (first quoting Davis v. Ayala
, 135 S. Ct. 2187, 2208 (2015); then quoting Rose v. Mitchell , 443 U.S. 545, 556 (1979)).
At this stage in Mitchell’s case, the Warden no longer disputes that Mitchell was tried by
an all

- white jury and that Hattie Alderson was stricken from the venire by the p rosecution in
violation of Batson v. Kentucky . The district court heard the evidence of this Batson violation in
1994

— the only court ever to do so

— and granted Mitchell relief. We overturned that relief in an opinion characterized as a “judicial travesty” by the dissent, an opinion that we have since concluded misapplied binding law. Abdur’Rahman , 226 F.3d at 705

– 06; Harries , 417 F.3d at 635. Our original error there was to reason, misguidedly, that the district court did not have the authority to hold a n evidentiary hearing. And we did so under Keeney , treating the case as procedurally defaulted and thus requiring Mitchell to show cause and prejudice. Martinez , as discussed above, now provides Mitchell with an avenue to show that cause. Prejudice is c lear: a district court has already granted habeas relief on Mitchell’s Batson claim, and separately, on his
IAC

- Batson claim. But for our error in Mitchell I, the remedy granted to Mitchell in 1995 would have resulted in Mitchell receiving a new trial fre e of unconstitutional race discrimination.
Martinez opens the door to that remedy here, 25 years later.

It is time

—

past time

— that we rectify the “judicial travesty” that is Mitchell’s sentence.
Mitchell I , 114 F.3d at 583 (Keith, J., dissenting). Striki ng black prospective jurors on the basisNo. 19

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of race “‘poisons public confidence’ in the judicial process,” Buck , 137 S. Ct. at 778 (quoting Ayala, 135 S. Ct. at 2208), because it suggests the justice system is complicit in racial
discrimination. Denial of th e opportunity to seek relief in such situations undermines respect for
the courts and the rule of law. Mitchell I refused to review the merits of Mitchell’s Batson and
IAC

- Batson claims absent a showing of cause. Martinez removes that barrier. Mitchell’ s case also evidences the danger Martinez sought to address

— that the provision of two consecutive constitutionally ineffective lawyers would trap habeas petitions in a procedural double

- bind through which they would be consigned to prison without a court e ver hearing the merits of their
constitutional claim. B uck confirms that Rule 60(b)(6) can be used to reopen cases that present the “risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Buck , 137 S. Ct. at 778. Mitchell’s case presents both; it establi shes extraordinary circumstances and shows that denial of his Rule 60(b)(6) motion was error. Id. at
767.

III. CONCLUSION

We REVERSE the decision below and reopen Mitchell’s habeas petition under
Rule 60(b)(6), GRANT Mitchell a conditional writ of habeas corpus, that will result in Mitchell’s release from prison unless the State of Tennessee commences a new trial against him within 180 days from the date of this opinion, and R EMAND the case for further proceedings

con sistent with this opinion.