RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 13a0355p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

DENNIS B. MCGUIRE,

Petitioner-Appellant,

v.

WARDEN, CHILLICOTHE CORRECTIONAL

INSTITUTION,

Respondent-Appellee.

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No. 13-3368

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 99-00140—Susan J. Dlott, Chief District Judge.

Argued: December 16, 2013

Decided and Filed: December 30, 2013 

Before: SILER, ROGERS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Allen L. Bohnert, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,

Ohio, for Appellant. Seth P. Kestner, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Gary W. Crim, Dayton, Ohio,

Robert K. Lowe, Kelle Hinderer Andrews, OFFICE OF THE OHIO PUBLIC

DEFENDER, Columbus, Ohio, for Appellant. Seth P. Kestner, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

ROGERS, Circuit Judge. Dennis B. McGuire, an Ohio death row inmate

represented by counsel, appeals from a federal district court order denying his motion

for relief from judgment filed pursuant to Federal Rule of Civil Procedure 60(b). In

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

March 2008, the district court denied McGuire’s original petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. This court affirmed the district court’s denial,

see McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), which became final when the

Supreme Court denied a writ of certiorari in April 2011, 131 S. Ct. 2103 (2011). In his

Rule 60(b) motion, McGuire sought to re-open a claim asserting the ineffectiveness of

trial counsel arising from their failure to adequately investigate and present mitigation

evidence at the penalty phase of trial, relying upon Martinez v. Ryan, 132 S. Ct. 1309

(2012). McGuire argues that the procedural default for this claim should be excused

because his counsel on state post-conviction review was ineffective. For the reasons that

follow, McGuire has not demonstrated the extraordinary circumstances required to

justify relief from final judgment pursuant to Rule 60(b)(6).

I.

The basic details of McGuire’s trial, conviction, and sentence for the kidnapping,

rape, and aggravated murder of Joy Stewart can be found in our previous opinion.

619 F.3d at 625–27. For the purposes of this appeal, which involves only the issue of

the effectiveness of McGuire’s penalty phase counsel in investigating and presenting

mitigation evidence, we need only describe what that counsel actually presented during

sentencing and how counsel’s effectiveness in that regard was challenged during direct

appeal and collateral review.

On direct appeal, the Ohio Supreme Court summarized the evidence presented

in mitigation as part of that court’s determination that the aggravating factors carried

sufficient weight to support McGuire’s capital sentence:

Apart from inappropriately relying on residual doubt, appellant presented

a number of other factors offered in mitigation. Doris Newton,

McGuire’s mother, and Tonya Cross, his half-sister, testified about

McGuire’s turbulent childhood. The defendant was born in 1960. His

parents divorced two years later, leaving McGuire in the sole care of his

mother. McGuire’s father took his older brother away, and McGuire had

little contact with them after that, except when he would run away from

home to see them.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 3

McGuire lived with his mother until he was eighteen. During that time,

his mother was involved with several men, some of who[m] physically

beat her in front of the appellant, who was required on occasion to run

for help. His mother and half-sister testified that these men did not abuse

the appellant physically; however, they did inflict mental abuse by

calling McGuire names, yelling at him, and generally treating him

poorly. Some of these men, however, were good to the defendant, and

one continued to be available to help him even after the marriage with

appellant's mother ended.

Defendant was also moved frequently, attending various schools, but

eventually dropping out after ninth grade. Defendant began using

marijuana at the age of nine and continued doing so until his

incarceration in 1990. While imprisoned, appellant has taken strides to

improve his education. He has also committed only minor infractions

while incarcerated.

Appellant has not demonstrated that the factors listed as mitigation

outweigh the aggravated nature of the murder. While appellant's

mitigation evidence is entitled to some weight, it is insufficient to

overcome the aggravating circumstance in this case, that defendant

committed rape in conjunction with murder. We therefore conclude

under our independent review that the aggravating circumstances

outweigh the mitigating factors in this case.

State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio 1997).

After McGuire was sentenced to death, he appealed to the Ohio Court of

Appeals, although his appellate counsel, which had not represented him at trial or at

sentencing, did not raise a claim of ineffective assistance of trial counsel. See State v.

McGuire, No. CA95-01-001, 1996 WL 174609 (Ohio Ct. App. Apr. 15, 1996). That

court affirmed the sentence of death. Id. at *14.

McGuire appealed to the Ohio Supreme Court. McGuire, 686 N.E.2d at 1112.

His counsel at this stage, yet again different from both his trial counsel and intermediate

appellate counsel, did raise a claim of ineffective assistance of penalty phase counsel for

failure to investigate and present mitigation evidence, as Proposition of Law Seven. See

id. at 1125. However, because the trial-level ineffectiveness claim had not been raised

at the intermediate appellate level, the supreme court deemed it forfeited. See id. at

1117. Still, a substantive mitigation-IAC claim was also nested within a claim of
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 4

ineffective assistance of appellate counsel, as a claim of ineffective assistance of

intermediate-appellate counsel for failure to raise the mitigation-IAC claim. See id. at

1120. The state supreme court held that appellate counsel was not ineffective for failing

to raise the mitigation-IAC claim:

McGuire also claims that appellate counsel were ineffective for not

raising a number of alleged penalty-phase errors made by trial counsel.

First, he claims “inadequate preparation and presentation of mitigation

evidence,” because counsel should have hired a “mitigation specialist”

to gather mitigating evidence. However, he cites no authority that this

is a requirement of effective assistance, and we hold that it is not. He

further complains that trial counsel should have called more [than] just

the two members of McGuire’s family to testify in the penalty phase.

But the record does not show that this resulted from inadequate

investigation or incompetent decisionmaking. In addition, McGuire

claims that Dr. Kuehnl, the defense psychologist who testified on his

behalf, was inadequately prepared and should have performed routine

tests to determine whether McGuire was suffering a mental disorder.

McGuire appears to blame defense counsel for this, but the record

provides no basis to do so. Kuehnl may have decided that such tests

were unnecessary. If so, it seems reasonable that counsel would defer to

the psychologist's professional judgment. Given the difficulty of proving

ineffective assistance of trial counsel and the weakness of appellant's

claims, McGuire’s appellate counsel were not deficient in failing to raise

the issue of ineffective trial counsel.

Id. The court ultimately affirmed McGuire’s convictions and sentence of death. Id. at

1124.

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

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

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

outside the record to support his claim:

Petitioner claims that his counsel failed to properly prepare for the

penalty phase.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 5

As stated by the State in its response to this claim, Petitioner has failed

to offer any documentary evidence to support the claimed failure to

prepare.

On pages 31 through 33, Petitioner offers a mini-seminar relative to the

proper manner in which to obtain and present mitigation evidence. On

pages 34 and 35 Petitioner attempts to specifically set forth defense

counsel’s alleged failure. A review of the allegations reveals that for the

most part Petitioner complains that the information presented fell short

of that which was necessary to support the sentence preferred by

Petitioner, i.e. life imprisonment. The claim is result oriented, i.e.

because the jury recommended a sentence of death trial counsel must

have been ineffective in their representation. Petitioner ignores the

possibility that there was no additional mitigating evidence to present.

The record reveals that defense counsel acted professionally and

effectively throughout the entire trial including the mitigation phase. If

there is evidence outside the record to support a claim that defense

counsel failed to properly prepare for the mitigation phase then same

should have been attached to the Petition.

McGuire appealed the post-conviction trial court’s decision, but did not challenge the

trial court’s ruling with respect to the mitigation-IAC claim. The Ohio Court of Appeals

affirmed the denial of the petition. State v. McGuire, No. CA97-06-015, 1998 WL

191415, at *8 (Ohio Ct. App. Apr. 20, 1998). The Supreme Court of Ohio declined

further review. State v. McGuire, 699 N.E.2d 945 (Ohio 1998).

McGuire filed a second post-conviction petition with the state trial court, raising

only the mitigation-IAC claim. This time, McGuire supported the petition with six

exhibits. The trial court denied McGuire’s second petition for post-conviction relief.

The court of appeals affirmed, stating that the mitigation-IAC claim was barred by res

judicata:

Petitioner first argues that his claims cannot logically be barred by res

judicata because his claims have not been fully litigated. Petitioner’s

claims could have been fully litigated, but petitioner failed to present

adequate evidence to support those claims. Petitioner’s second petition

merely offers additional evidence with respect to issues previously

addressed by the first petition.

In his first postconviction petition, petitioner alleged the ineffective

assistance of his counsel during the death penalty phase of the
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 6

proceedings. In Cause of Action X, petitioner claimed his attorneys had

failed to adequately investigate and present mitigation evidence to the

jury in the form of family member testimony, expert mitigation

testimony, and psychiatric testimony. Ruling on his postconviction

petition, the trial court determined that petitioner had failed to offer any

documentary evidence to support his claims and that the record showed

trial counsel had acted effectively in the mitigation phase of the

proceedings.

In his second postconviction petition, petitioner made precisely the same

argument but attempted to introduce additional evidence. Petitioner

offered documents in the form of additional affidavits from family

members regarding his formative years. The trial court found petitioner’s

claim of ineffective assistance barred because he had raised precisely the

same claim in his first postconviction petition.

The operative facts in this case are very similar to those in [State v.

Castro, 425 N.E.2d 907, 909 (Ohio Ct. App. 1979)]. There, the

petitioner alleged ineffective assistance of counsel in a second

postconviction petition. Id. The petitioner had alleged the ineffective

assistance of counsel in his first postconviction petition. Id. The court

found the second petition's claim barred by res judicata. Id. We reach

the same result.

Petitioner’s ineffective assistance claim was raised in his first

postconviction petition. Petitioner failed to provide necessary affidavits

to fully litigate the issue. Res judicata therefore bars his subsequent

claim. Although petitioner attempts to differentiate his claims from the

claims raised in [State v. Perry, 226 N.E.2d 104 (Ohio 1967)], he has

offered no valid reason that res judicata should not apply to bar this

claim, and it is not necessary to address the issue on its merits.

Accordingly, the trial court's ruling is affirmed. Petitioner’s second

assignment of error is overruled.

State v. McGuire, No. CA2000-10-011, 2001 WL 409424, at *10 (Ohio Ct. App. Apr.

23, 2001). The Ohio Supreme declined further review. State v. McGuire, 754 N.E.2d

259 (Ohio 2001).

McGuire filed a petition for a writ of habeas corpus in the federal district court

for the Southern District of Ohio. In his second ground for relief, McGuire argued that

his penalty phase counsel deprived him of the effective assistance of counsel by

inadequate preparation and presentation of mitigation evidence. The case was referred

to a magistrate judge, who, without conducting an evidentiary hearing, issued a report
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 7

recommending that McGuire’s petition be denied. The magistrate judge determined that

the ineffectiveness claim was procedurally defaulted, stating:

First, Ohio has a res judicata rule which essentially required Mr.

McGuire to raise this ineffective assistance of counsel claim in his direct

appeal. Second, the Ohio Supreme Court specifically found that Mr.

McGuire had waived the issue. Third, the Sixth Circuit has determined

that Ohio’s res judicata rule is an “adequate and independent” state

ground for purposes of a procedural default analysis.

McGuire abandoned the claim in his objections to the report and recommendation. See

R. 94 at 8 (“We now abandon Claims Two, Six, Twelve, Thirteen, Fourteen, Fifteen,

Sixteen, Nineteen, Twenty, and the remainder of Twenty-one.”). The district court did

not address the claim because it had been abandoned. Over McGuire’s objections, the

district court adopted the magistrate judge’s reports and recommendations and denied

the petition. This court affirmed, McGuire, 619 F.3d at 631, and the Supreme Court

denied certiorari, 131 S. Ct. at 2103.

In September 2012, McGuire filed his Rule 60(b) motion seeking to reopen his

habeas proceedings to pursue the second ground for relief raised in his habeas corpus

petition, relying primarily upon the Supreme Court’s decision in Martinez v. Ryan,

132 S. Ct. 1309 (2012). Martinez held that:

[w]here, under state law, claims of ineffective assistance of trial counsel

must be raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was

ineffective.

132 S. Ct. at 1320. The case was referred to a magistrate judge, who issued a report

recommending the denial of the motion. McGuire submitted timely objections. The

magistrate judge then issued a supplemental report, again recommending the denial of

the motion. McGuire again entered timely objections. The district court adopted the

magistrate judge’s report and recommendations and denied the motion, concluding that

Martinez was not applicable to McGuire’s claim:
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 8

The Sixth Circuit has not directly addressed whether Martinez should

apply in Ohio when a post-conviction defendant cannot assert his

ineffective assistance of trial claim on direct appeal. However, those are

not the circumstances here. McGuire asserted his ineffective assistance

of trial counsel claim for the first time on direct appeal, and only

thereafter in the post-conviction proceedings. Therefore, his subclaim

does not fall within the limited exception provided for in Martinez for

ineffective assistance of trial counsel claims which were required to be

raised in post-conviction collateral proceedings. It follows that McGuire

has not established that extraordinary circumstances exist pursuant to

Rule 60(b)(6) to reopen the ineffective assistance of trial counsel

subclaim in the Second Ground for Relief.

McGuire’s counsel filed a notice of appeal from the district court’s judgment.

Two months later, the Supreme Court decided Trevino v. Thaler, 133 S. Ct. 1911 (2013),

a case that expanded and clarified Martinez. The district court subsequently certified the

following issue for appeal: “whether Martinez justifies granting Petitioner relief from

judgment in this case on his Second Claim for Relief regarding the alleged

ineffectiveness of his trial counsel.”

Martinez and Trevino created an exception to the rule that ineffective assistance

of counsel in state post-conviction collateral proceedings cannot serve as cause for

procedural default. In Coleman v. Thompson, the Supreme Court reasoned that “[t]here

is no constitutional right to an attorney in state post-conviction proceedings,” and that

“[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of

counsel in such procededings.” 501 U.S. 722, 752 (1991). And in that case, “[b]ecause

Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error

that led to the default of Coleman’s claims in state court cannot constitute cause to

excuse the default in federal habeas.” Id. at 757. In Maples v. Thomas, this rule was

recognized and explained, although not applied when, unlike in the present case, postconviction counsel abandoned his client. 132 S. Ct. 912, 922–27 (2012).

In Martinez, the Supreme Court carved out a “narrow exception” to Coleman,

holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings

may establish cause for a prisoner's procedural default of a claim of ineffective

assistance at trial.” 132 S. Ct. at 1315. The Court held that:
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[w]here, under state law, claims of ineffective assistance of trial counsel

must be raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was

ineffective.

Id. at 1320. In Martinez, the court applied this rule to hold that, because Arizona

criminal procedure does not permit claims of ineffective assistance to be brought on

direct appeal, the federal habeas court should have determined whether the attorney in

the first collateral proceeding was ineffective in abandoning without arguing, and

thereby procedurally defaulting, the claim of ineffective assistance of trial counsel. See

id. at 1320–21.

Martinez’s apparent limit to those jurisdictions in which “claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding,” id.

at 1320 (emphasis added), was loosened in the Court’s application of Martinez in

Trevino. There, the Court interpreted Martinez as establishing a four-part test, under

which a federal habeas court can

find “cause,” thereby excusing a defendant's procedural default,

where (1) the claim of “ineffective assistance of trial counsel” was a

“substantial” claim; (2) the “cause” consisted of there being “no

counsel” or only “ineffective” counsel during the state

collateral review proceeding; (3) the state collateral review

proceeding was the “initial” review proceeding in respect to the

“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires

that an “ineffective assistance of trial counsel [claim] . . . be raised in an

initial-review collateral proceeding.”

133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at 1318–19, 1320–21) (emphasis in

original). The Court modified the fourth requirement so that Martinez would apply in

Texas, even though Texas criminal procedure “on its face appears to permit (but does

not require) the defendant to raise the claim [of ineffective assistance of trial counsel]

on direct appeal.” Id. (emphasis in original).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 10

The Court pointed out two elements of Texas criminal procedure that made a

strict application of Martinez’s fourth requirement appear to be unjustified. First, the

Court noted that “Texas procedure makes it ‘virtually impossible for appellate counsel

to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.”

Id. (quoting Robinson v. State, 16 S.W.3d 808, 811 (Tex. Ct. Crim. App. 2000))

(alteration in original). This is because under Texas criminal procedure time constraints

and procedural hurdles render impracticable the development of evidence outside the

trial record, which is often needed to present a claim for ineffective assistance of trial

counsel. See id. at 1918–19. The Court suggested that “as a systematic matter, Texas

[does not] afford[] meaningful review of a claim of ineffective assistance of trial

counsel.” Id. at 1919. Second, the Court noted that, “were Martinez not to apply, the

Texas procedural system would create significant unfairness,” because Texas courts in

their holdings, and the Texas criminal bar in their practice, have followed the principle

that claims of ineffective assistance of counsel are generally inappropriate on direct

review and should typically be brought on collateral review. Id. at 1919–20.

The Supreme Court concluded “that the Texas procedural system—as a matter

of its structure, design, and operation—does not offer most defendants a meaningful

opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.”

Id. at 1921 (emphasis added). The Court held that Martinez applied to the Texas system

and that ineffective assistance of post-conviction counsel at an initial-review collateral

proceeding could be cause to excuse a procedural default. Id.

McGuire argues that Trevino expands Martinez to jurisdictions like Ohio, on the

theory that ineffective assistance of trial counsel cannot be meaningfully litigated on

direct review because the state provides no procedural mechanism to expand the record

on direct review. Thus, McGuire contends, the post-conviction proceeding is the first

meaningful opportunity to present ineffective assistance of trial counsel claims that

depend upon evidence outside the record. We have not directly addressed the

applicability of Martinez in light of Trevino. In Moore v. Mitchell, we concluded that

Martinez does not apply in Ohio because Ohio permits ineffective assistance of trial
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 11

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

that decision was issued before Trevino.

II.

This case has been thoroughly litigated in the state courts and on federal habeas

through to the United States Supreme Court. The brutal crime for which defendant was

convicted and sentenced occurred in 1989. Federal habeas corpus was finally denied by

the district court in 2008, and that decision was upheld in the United States Supreme

Court in 2011. Petitioner seeks to reopen that final judgment under Federal Rule of Civil

Procedure 60(b)(6), which permits the opening of final judgments in extraordinary

circumstances. At the time that the district court below denied the Rule 60(b) motion,

the district court clearly did not abuse its discretion, in light of our court’s pre-Trevino

rejection of the applicability of Martinez with respect to Ohio law. Moore, 708 F.3d at

785; see also Coyer v. HSBC Mortg. Servs., Inc., 701 F.3d 1104, 1110 (6th Cir. 2012)

(stating abuse of discretion standard for denials of Rule 60(b) motions). The only

question before us now is whether the Supreme Court’s recent Trevino decision requires

a different result. Trevino does not, however, require a different result, because

intervening law does not generally permit the re-opening of finally decided cases, and

even if it does in some truly extraordinary cases, this is not such a case.

None of the enumerated grounds for relief under Rule 60(b)(1)–(5) applies in this

case, so McGuire must rely for relief upon the catchall provision, Rule 60(b)(6), which

provides for relief from a final judgment for “any other reason that justifies relief.”

“Relief under Rule 60(b) is circumscribed by public policy favoring finality of

judgments and termination of litigation. This is especially true in an application of

subsection (6) of Rule 60(b), which applies only in exceptional or extraordinary

circumstances which are not addressed by the first five numbered clauses of the Rule.”

Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007)

(alteration and quotation marks omitted) (citation omitted). Relief is limited to “unusual

and extreme situations where principles of equity mandate relief.” Id. (quoting Olle v.

Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)). “The decision to grant Rule
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 12

1

In Gonzalez the Court reasoned in part as follows:

[N]ot every interpretation of the federal statutes setting forth the requirements for habeas

provides cause for reopening cases long since final. If [one new precedent] justified

reopening long-ago dismissals based on a lower court’s unduly parsimonious

interpretation of § 2244(d)(2), then [another intervening precedent] would justify

reopening long-ago grants of habeas relief based on a lower court’s unduly generous

interpretation of the same tolling provision.

Id. at 536–37.

60(b)(6) relief is a case-by-case inquiry that requires the trial court to intensively balance

numerous factors, including the competing policies of the finality of judgments and the

incessant command of the court’s conscience that justice be done in light of all the

facts.” Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009) (quoting Blue Diamond

Coal Co. v. Trustees of UMWA Combined Benefits Fund, 249 F.3d 519, 529 (6th Cir.

2001)) (alteration omitted).

The single fact that Trevino has been decided does not change the balance of

these factors sufficiently to require Rule 60(b) relief. It “is well established that a

change in decisional law is usually not, by itself, an ‘extraordinary circumstance’

meriting Rule 60(b)(6) relief.” Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007)

(quoting Blue Diamond, 249 F.3d at 524)); see also Gonzalez v. Crosby, 545 U.S. 524,

536–37 (2005).1

First, it is solely a change in the law “by itself” that could even arguably provide

for relief from the final judgment in this case. No development other than the Trevino

decision has been suggested. In particular, there are no newly developed facts since the

denial of McGuire’s federal habeas petition became final in April 2011.

Second, the change in the law resulting from the recent Trevino decision is flatly

not a change in the constitutional rights of criminal defendants, but rather an adjustment

of an equitable ruling by the Supreme Court as to when federal statutory relief is

available. The Supreme Court disclaimed any change in the constitutional ground rules

for determining guilt or innocence in a criminal case in Martinez, instead basing the

decision on the courts’ equitable power. See 132 S. Ct. at 1319.
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 13

Third, while we need not determine whether Trevino applies to Ohio cases, it is

not obvious that Trevino applies here. Ohio law appears to contemplate two kinds of

ineffective assistance of counsel claims, those based only on evidence in the trial record

and those based in part on evidence outside the record. Ohio also appears to expect

appellate counsel to recognize the types of claims and follow the proper procedure. As

to the first type of claim, res judicata bars an ineffective assistance of counsel claim that

relies entirely on evidence inside the trial record, since such a claim could have been

brought on direct appeal. This is because in Ohio,

[u]nder the doctrine of res judicata, a final judgment of conviction bars

the convicted defendant from raising and litigating in any proceeding,

except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant

at the trial which resulted in that judgment of conviction or on an appeal

from that judgment.

State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967). Since it is “a bedrock principle of

appellate practice in Ohio . . . that an appeals court is limited to the record of the

proceedings at trial,” Morgan v. Eads, 818 N.E.2d 1157, 1159 (Ohio 2004), the second

type of claim, ineffective assistance of counsel contentions that rely on evidence outside

the record, cannot be brought on direct review. In State v. Cole, the Ohio Supreme Court

explained:

Generally, the introduction in [a postconviction] petition of evidence

dehors the record of ineffective assistance of counsel is sufficient, if not

to mandate a hearing, at least to avoid dismissal on the basis of res

judicata. In the case at bar, however, the allegations outside the record

upon which appellant relies appear so contrived, when measured against

the overwhelming evidence in the record of trial counsel's competence,

as to constitute no credible evidence and, thus, to justify the trial court's

application of the principles of res judicata.

443 N.E.2d 169, 171 (Ohio 1982). However, “[a] petition for postconviction relief is

subject to dismissal without a hearing when the petitioner fails to submit with his

petition evidentiary material setting forth sufficient operative facts to demonstrate
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 14

substantive grounds for relief.” State v. Sowell, 598 N.E.2d 136, 142 (Ohio Ct. App.

1991); see also Ohio Rev. Code Ann. § 2953.21(C).

Thus, Ohio law suggests two different ways to look at Trevino. On the one hand,

certain claims can for practical purposes only be brought in an initial-review collateral

attack in a post-conviction petition. And Trevino recognized that a “meaningful

opportunity to present a claim of ineffective assistance of trial counsel” includes “the

need to expand the trial court record.” 133 S. Ct. at 1921. Ohio courts recognize that

claims requiring evidence outside the record may only be meaningfully litigated in postconviction proceedings and may loosen ordinary res judicata principles in such cases:

“although ineffective assistance of counsel ordinarily should be raised on direct appeal,

res judicata does not bar a defendant from raising this issue in a petition for

postconviction relief if the claim is based on evidence outside the record[,] . . . even

when the issue of ineffective assistance of counsel was raised on direct appeal.” State

v. Richmond, No. 97616, 2012 WL 2047991, at *1 (Ohio Ct. App. July 2, 2012) (citing

State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985)). Thus, in Ohio, if ineffective

assistance cases are divided into two categories, one could argue that the category

requiring evidence outside the record must be brought on collateral review in order for

review to be meaningful.

On the other hand, in the “ordinary” case, “ineffective assistance of counsel at

mitigation, just like ineffective assistance at trial, is an issue that can be brought on

direct appeal,” State v. Combs, 652 N.E.2d 205, 212 (Ohio Ct. App. 1994) (collecting

cases), with a constitutionally required appellate attorney, see Franklin v. Anderson, 434

F.3d 412, 428 (6th Cir. 2006) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)); see also

State v. Davis, 894 N.E.2d 1221, 1226 (Ohio 2008); Ohio R. App. P. 26(B). Indeed,

such a claim was raised on McGuire’s direct appeal, and was treated thoughtfully by the

Supreme Court of Ohio on discretionary review, albeit as part of an ineffective

assistance of appellate counsel claim. Arguably, then, the review of trial counsel

ineffectiveness claims in Ohio is more “meaningful” than in Texas, because in Ohio

there is “ordinarily” the availability of direct review with constitutionally required
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 15

counsel, with the back-up of collateral attack where evidence outside the record is

required. All of this shows that the application of Trevino to Ohio ineffective-assistance

claims is neither obvious nor inevitable.

Fourth, even if Trevino changed the law in some Ohio cases and even if a pure

change in law could warrant Rule 60(b)(6) relief in truly extraordinary cases, there is

nothing extraordinary about this case because the underlying reasons for the Trevino

gloss on Martinez at best apply weakly in this case. Above all and as shown, McGuire

on direct appeal did make a challenge to the effectiveness of trial counsel with secondtier appellate counsel whose effectiveness is not now at issue. Indeed, the Ohio Supreme

Court rejected claims that parallel those made in the Rule 60(b) motion and in the briefs

before us now. See McGuire, 686 N.E.2d at 1120. The supreme court rejected a claim

of inadequate preparation and presentation of mitigation evidence because counsel

should have hired a mitigation specialist, and rejected the argument that trial counsel

should have called more than just the two members of McGuire's family to testify in the

penalty phase. Id. The supreme court also rejected an argument that the defense

psychologist who testified on McGuire’s behalf was inadequately prepared. Id.

To be successful under Trevino, moreover, McGuire must show a “substantial”

claim of ineffective assistance, Trevino, 133 S. Ct. at 1918, and this requirement applies

as well to the prejudice portion of the ineffective assistance claim. McGuire’s claim, for

the reasons given in the next section, is likely not sufficiently substantial to meet this

element of the Martinez exception.

III.

Even with the evidence that McGuire asserts should have been uncovered and

presented by trial counsel, McGuire’s claim for ineffective assistance of trial counsel is

not particularly compelling. “To prevail on a claim of ineffective assistance of counsel,

a petitioner must show that his counsel's performance was deficient and that it prejudiced

him.” Nichols v. Heidle, 725 F.3d 516, 539 (6th Cir. 2013) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 16

A comparison of the mitigation evidence that was presented at trial to that which

McGuire claims should have been presented does not compel the conclusion that

McGuire’s underlying claim for ineffective assistance of trial counsel is substantial.

Although in his second petition for post-conviction review, McGuire presented

additional and more detailed evidence of his impoverished upbringing and unstable

family life, none of the testimony from his other family members changes substantially

the picture of the case presented to the jury. Furthermore, it appears that the penalty

phase counsel was entitled to rely upon the psychological assessment of Dr. Kuehnl, the

psychological expert who testified at the sentencing hearing.

The following individuals testified on McGuire’s behalf at the penalty phase:

Mary C. Beedy, record office supervisor at the Madison Correctional Institution in

London, Ohio; Doris Jean Newton, McGuire’s mother; Tonya May Cross, McGuire’s

half-sister; Phyllis Kuehnl, Ph.D., a licensed psychologist; and McGuire himself.

As these witnesses explained, McGuire’s challenges in life began before he was

born: Newton, McGuire’s mother, testified that McGuire was born at home, rather than

in a hospital, and that she had no medical care during the pregnancy. At that time, she

and Genis Ray McGuire, the father, already had a son, Genis Jr. (“Junior”); and they had

a daughter after Dennis, although Newton left McGuire’s father when she was three

months pregnant with the daughter. Newton and Genis divorced in 1962, when Dennis

was about three years old. Newton testified that McGuire had no relationship with his

father; after the divorce, Genis and two of his brothers forcibly entered Newton and her

mother’s home and took Junior away. Genis took Junior out of the state, and Newton

did not see Junior for over three years after that. The young McGuire predominantly

lived with Newton, though he occasionally ran away to Genis’s house. McGuire

testified that he and his biological father “never got along. I never called him Dad, and

he never called me son.” 

While McGuire was growing up, his mother was married to six different men.

All of the marriages ended in divorce. Newton testified that after McGuire’s father she

married Donald Douglas Konz, with whom she had two children, a son named Randall
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 17

and a daughter named Tonya. Newton divorced Konz after six years, and she next

married Ronald K. Baker for “[a]bout a year” before they too divorced. Newton was

then married to Danny Raney for “[a]bout three years,” and next to Jerry Wayne Miller

for “[p]robably about two years.” Those marriages also ended in divorce. Newton was

finally married to Leon Eugene Newton, but the marriage ended much like the others:

they were “only together three months, but . . . weren’t divorced for a couple years.”

McGuire witnessed and personally suffered abuse from the parade of step-fathers

in his life. Newton testified that the young McGuire suffered a “[l]ot of mental abuse

but not no physical abuse much” from this series of step-fathers. Newton acknowledged

that they would treat him “poorly” and “call him names.” Tonya Cross recounted in her

testimony how McGuire’s step-fathers would abuse him “verbally” with “[h]ollering and

the yelling.” Newton added that Genis, Raney, and Miller were abusive to her. She

stated that Genis “beat [her] for eight hours,” leaving her “whole left side paralyzed”;

Raney “busted [her] nose” after hitting her in the face once, for which she went to the

hospital; and Miller “grabbed [her] by the hair of the head” and did similar such things

(although he did not hit her). Newton testified that she intermittently lived with Norman

Mullins, whom she never married. Newton testified to how the young Dennis witnessed

the abusive Mullins terrorizing the household:

Q. And was Norman Mullins also abusive to you?

A. Mostly mentally to me. Yea. And he’d come in—my brother and

sister, they stayed with me. I took care of them also for awhile. And I’d

get on him because he wouldn’t work or anything, and he’d get drunk

and come in. Throw everybody in the house out. Denny B., I could just

look at him and he’d go call the law.

Newton explained that “Denny B.” was McGuire and acknowledged that he was “the

man of the house.” Newton stated that when she was being beaten, McGuire “[w]as

always by [her]” and would often call the police for help. Tonya Cross confirmed that

“some times when [their] mom’s husbands . . . would . . . get in arguments or something,

and Denny would have to go for the law.” This was “Denny’s job,” which he had to do

“pretty much” “on a regular basis.” McGuire said he had “jumped out of two story
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 18

windows,” “got hit a couple times trying to keep ’em from hurtin’ [his] mother,” and

“ran after the cops, [he] couldn’t count [how many times].” Despite all the boyfriends

and husbands that may have disturbed her maternal relationship with McGuire, Newton

“d[id]n’t think he ever felt unloved or anything though. By me.” 

McGuire apparently had immense difficulties in school and never progressed

very far in his education. Newton testified that McGuire was “[a] poor student.”

Newton stated that she moved as a result of her relationships and that, in turn, McGuire

“[b]ounced around . . . a lot” through various school systems. When McGuire was in

school, he did not attend it regularly, since he “just didn’t like school.” Tonya Cross

believed that “he was gone more than he was there.” According to Newton, McGuire

dropped out shortly after starting the tenth grade. As for his poor academic performance,

Newton said that McGuire “couldn’t do the work” and that “[i]n the 8th grade he

couldn’t read 2nd grade work.” McGuire performed so poorly that Raney threatened to

cut McGuire’s hair if he did not do his school work. Newton suggested during her

testimony that McGuire could barely read or write. Tonya Cross recalled during her

testimony that McGuire had to have his driver’s license exam administered verbally

because he couldn’t read and write well enough to take it on paper.

In addition to struggling academically in school, McGuire faced bullying from

fellow students. Newton testified that McGuire was “chubby” in the third or fourth grade

and was also, in quite a literal sense, tongue tied: “His tongue was stuck to the roof of

his mouth, that little thing there, and we had to go have it clipped, or his tongue wouldn’t

move.” After this operation, McGuire suffered from a speech impediment; he

“stuttered” and “had a lot of problems” with his speech, to the point that he had to attend

speech therapy. Because of his speech difficulties and weight, McGuire was called

“Mushmouth” and “Fatso” by other children, but he “was always—pretty much kinda

sissy and he wouldn’t fight.” McGuire testified to physical abuse from black students

when he went to Trotwood, a school with significant racial tensions:

And there was days I come home, black eyes, busted nose and stuff.

Where most of the black kids on the bus started beating up us white ones.

And I quit going to school. . . . I tried to. I really tried to. I tried going to
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 19

school. I tried to get my education. But I couldn’t get around those

whoopings. And I wasn’t going to school and getting beat up every day.

I wasn’t going to do it. I’m tired of black guys, and my head getting

busted and baseball bats and stuff. So I quit.

A miserable upbringing preceded the immediate receipt of adult responsibilities.

Newton testified that McGuire moved out when he was eighteen and married a woman

named Darlene. Darlene and McGuire lived with three children, one of whom was from

Darlene’s prior relationship. Based on the “few times” Newton saw them at home, to

her they “seemed like a happy family.” Tonya Cross agreed that “the children seemed

happy,” and that McGuire would play with the children, whom he “seem[ed] to love.”

However, this short marriage apparently ended in divorce shortly after his incarceration

for the murder of Joy Stewart, and McGuire had seen his children only twice in the

penal institution since the divorce. 

Dr. Kuehnl testified as an expert in psychology, and based her testimony on two

hours spent in a personal interview with McGuire, a review of the discovery packet and

his school records, and some time spent interviewing his family members. Dr. Kuehnl

testified that McGuire “came across as a man who had grown up through a series of

turbulent relationships that left him with few social skills.” She testified to the

importance of stable bonds in a child’s development and opined that McGuire’s early

life was “erratic, and didn’t provide him with very much predictability.” The fact that

he was “rejected by his father, who chose not to have any additional contact with him,

would certainly cause him—would cause him to feel insecure and unloved in spite of

what [his] mother might be attempting to portray at that point.” Dr. Kuehnl also

discussed McGuire’s use of marijuana from the age of 9 and how this indicated that

McGuire had “withdrawn from the fight so to speak”; the marijuana “numbed his view

of the world,” which helped him through “the disintegration of the family unit.” 

This evidence does not materially differ in quantity and quality from the

evidence—several affidavits from family members—that McGuire submitted in support

of his successive state post-conviction petition. What the affidavits recount is
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 20

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

himself.

For example, Randy Konz, McGuire’s half-brother, provided a short affidavit in

support of McGuire’s successive state post-conviction petition. Regarding McGuire’s

personality, Randy averred: “[McGuire] got along with everyone. Black kids at

Trotwood picked on him. The school had a lot of racial problems.” McGuire’s

testimony covered this. As Newton, McGuire, and Cross attested to, Randy also

discussed “how during fights between my mother and one of her husbands or boyfriends,

[McGuire] would climb out the windows to get the neighbors’ help.” About their

respective childhoods, Randy explained: 

My brother had it harder than I did. The hardest part for Dennis was that

he had to raise himself. Our mother was out bar hopping. She always

had lots of boyfriends. She and the kids often didn’t have money for

food. Dennis had to steal food to eat. I think she may have left Dennis

and Mary Beth alone for a few days at a time.

Randy, like Newton and Cross at the sentencing hearing, noted that McGuire had

difficulty reading and “avoided situations when he had to read”; McGuire passed his

driver’s test only when he could take the oral version. Randy’s affidavit did not entirely

support mitigation; such as when he stated that McGuire had a reputation as a “snitch,”

and when Randy expressed a belief that Newton “ignore[d] Tonya and me” and “only

seemed to care about Dennis and Mary Beth[, Newton’s daughter with Genis].” 

Don Konz, Newton’s second husband, also provided a short affidavit. After the

divorce, Konz saw McGuire only when Konz took Tonya to see her mother, at which

time she was living with Norm; McGuire “didn’t seem to be happy.” When he was

eighteen years old, McGuire lived with Konz “for two months” while McGuire worked

at TGI Friday’s. McGuire and his children lived with Konz “for about a week” when

McGuire’s wife “kicked him out”; McGuire “took care of his kids like a mother hen.”

Konz noted that Genis denied that McGuire was his son. Konz also recounted

McGuire’s speech impediments and academic difficulties, although those topics were

discussed at length at the sentencing hearing. Konz also discussed disciplinary routines
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 21

in the household: Doris and he “usually made Dennis sit in a room, stand in a corner,

or go without TV for awhile,” but “[m]ost of the time Doris and I gave the kids a couple

of cracks on the butt.” This testimony adds little to the whole picture. Almost an entire

page of the affidavit discussed Konz’s and Newton’s problems with alcohol and fidelity,

problems with only limited direct relevance to McGuire.

Mary Elizabeth Malicote, McGuire’s younger full sister, provided another short

affidavit in support. She averred that their father, Genis, did not pay child support and

the family experienced “hard times financially,” including “times when we ate mostly

bologna sandwiches with chips and soup,” but they would have “a new outfit for school

even if it was inexpensive.” During Newton’s marriage to Konz, he “made [McGuire]

eat a bar of soap after I told him [McGuire] spat on me,” and would also “pok[e] his

finger in [McGuire’s] face and call[] him stupid.” Malicote mentioned McGuire’s role

in getting the police when their mother was being abused, although that was covered at

the sentencing hearing. Malicote’s testimony was also cumulative to the extent it

covered McGuire’s difficulties in school, both academically and socially. About a fourth

of the short affidavit discusses Malicote’s own difficulties in life, which only in a very

indirect way help McGuire’s case for mitigation. Besides providing a couple of

anecdotes and more detail, Malicote’s testimony is cumulative.

Nola Stewart, McGuire’s maternal aunt and younger sister to Newton by twentytwo years, provided yet another affidavit. The first four pages of the affidavit concern

family history from before McGuire entered the picture, although Stewart does aver that

her mother, McGuire’s grandmother, did not help Newton with McGuire even though

the child was often hungry. Stewart did say that McGuire “didn’t have much to eat when

he was little.” Stewart indicated that McGuire’s circumstances improved between the

ages of ten and fifteen years old:

Doris drew welfare. She was divorced from Don Konz by that time. She

had a nice apartment and plenty of food. I think she also received

housing assistance. Doris had gotten her life on track. She had always

tried, but she chose bad men. Her children may have been malnourished,

but she never physically abused them. She was always affectionate and
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 22

loving with them. Most of her marriages ended because of the kids. If

the men didn’t like them, she told them to leave.

Stewart stated that Newton attempted suicide, although she did not provide any details.

Most of the rest of the affidavit is cumulative of the evidence presented at the sentencing

hearing, especially her statements regarding McGuire’s lack of education and the

abusive relationships Newton had with other men.

Tonya Cross and Doris Newton, McGuire’s half-sister and mother who had both

testified at the sentencing hearing, provided two more affidavits in support of McGuire’s

second state post-conviction petition. A large portion of Cross’s affidavit discussed her

family history. Otherwise, Cross’s and Newton’s affidavits largely track their testimony

at trial, and they therefore do little if anything to advance McGuire’s case that the failure

to introduce additional testimony from either of them in any way prejudiced him at

sentencing.

It is far from clear that McGuire has presented sufficient evidence of prejudice

to make a successful Strickland claim. Most of the information contained in the various

affidavits had already been presented through the testimony at trial, especially regarding

McGuire’s trouble in school, teasing from other children, and his dysfunctional, unstable

family life. To the extent the affidavits present new information, that information either

does not relate to McGuire (Stewart provided background history about her parents),

comes from an unreliable source (Randy averred that he did not live with Newton), or

adds little substantive impact to that information presented to the jury (Cross, Malicote,

Newton, and Stewart explained in their affidavits that Newton’s relationships were

abusive, McGuire acted as the “man of the house,” and McGuire did not perform well

academically). Notwithstanding the allegedly deficient performance arising from trial

counsel’s failure to talk to each of the affiants, McGuire cannot show prejudice because

the new evidence he proposes should have been introduced at trial is cumulative. As we

explained in Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005), “in order to establish

prejudice, the new evidence that a habeas petitioner presents must differ in a substantial

way—in strength and subject matter—from the evidence actually presented at
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 23

sentencing.” The introduction of additional examples to fill out the narrative that was

formed of McGuire’s life at the sentencing hearing is not enough to demonstrate

prejudice. This is similar to our reasoning in Jackson v. Bradshaw, 681 F.3d 753, 770

(6th Cir. 2012), where we held that, “[w]hile the latter evidence sharpens the outlines of

Petitioner’s personal history from the picture offered at trial, the extra benefit to

Petitioner resulting from the increased specificity is marginal and, therefore, insufficient

to support the conclusion that counsel erred by failing to proffer these more specific

details.”

Lastly, McGuire attempts to rely upon a report from Kathleen J. Burch, Psy.D.,

a clinical psychologist. This final bit of evidence was not presented during state postconviction proceedings, but was brought only during federal habeas proceedings in a

motion to expand the record. Dr. Burch conducted a battery of tests, which

demonstrated that McGuire has cognitive dysfunction, manifests a passive-aggressive

or paranoid personality disorder, and suffers mood disturbances, including a

susceptibility to depression. However, Dr. Burch concluded that:

The results of the psychological assessments performed . . . do not

suggest the presence of a major mental illness. They do[] suggest,

however, certain deficits in his ability to effectively regulate his behavior

and deficits in his interpersonal functioning, that would have relevance

to his everyday behavior, including his criminal behavior. . . . These

deficits reflect and result from impairments in the functioning of his

brain. These impairments may be largely, or entirely, inborn; the

reported history of serious learning problems and behavior problems

among family members suggests that he is likely constitutionally

predisposed to act impulsively and unreflectively. . . . Mr. McGuire gave

. . . a history of significant substance abuse and various closed head

injuries that might also account for some of his brain-based impairments

of thinking and behavior.

There is no serious prejudice from the jury’s inability to consider Dr. Burch’s

analysis, for her conclusions, although arrived at through more comprehensive clinical

evaluation, do not appear to be greatly different from the conclusions Dr. Kuehnl made

at the sentencing hearing. Furthermore, it does not appear that Dr. Burch’s conclusions

would have been particularly helpful to the jury, as they are mostly provisional, intuitive,
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 24

or inconclusive. Dr. Burch suggests only the possibility of organic brain tissue damage

without corroboration. Dr. Burch’s reference to a “constitutional[] predispos[ition] to

act impulsively and unreflectively” is to some extent inherent in McGuire’s crime itself.

Perhaps most importantly, none of McGuire’s psychological aberrations rises to the level

of “major mental illness.” The cases cited by McGuire involve much different and more

serious deficiencies in the presentation of competent defense expert testimony: an expert

who testified at the sentencing hearing that she was not equipped to perform additional

diagnostic tests to detect organic brain dysfunction that she thought was likely, Powell

v. Collins, 332 F.3d 376, 384 (6th Cir. 2003); a failure to present any information about

the defendant’s bizarre, nightmarish personal history, and instead just presenting an

unsworn statement by the defendant in mitigation, Coleman v. Mitchell, 268 F.3d 417,

445–56, 450–51 (6th Cir. 2001); no provision of expert testimony except expert

testimony that was guided by the prosecution and which was unchallenged by the

defense, Glenn v. Tate, 71 F.3d 1204, 1209–10 (6th Cir. 1995); or no “thorough

investigation of [the defendant’s] mental health, even after [the defendant’s] mother

alerted them that [the defendant] suffered from mental illness,” Harries v. Bell, 417 F.3d

631, 638 (6th Cir. 2005).

In addition, McGuire’s trial-level counsel was entitled to rely on the conclusions

arrived at by Dr. Kuehnl after her examination of McGuire. Dr. Kuehnl appears to have

conducted herself in a professional and efficient manner, and McGuire makes no

persuasive argument to the contrary. Rather, McGuire emphasizes that Dr. Kuehnl

presented nothing in the form of an “organic explanation.” However, the fact that Dr.

Kuehnl approached McGuire’s case as one of family dynamics and social history does

not dilute its significance; and indeed, such testimony may be more intuitively helpful

to a jury than more specialized neuropsychological explanations. Absent a showing that

trial counsel reasonably believed that Dr. Kuehnl was somehow incompetent or that

additional testing should have occurred, simply introducing the contrary opinion of

another mental health expert during habeas review is not sufficient to demonstrate the

ineffectiveness of trial counsel. See Black v. Bell, 664 F.3d 81, 104–05 (6th Cir. 2011).
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 25

IV.

In the end, the strong policy of maintaining the finality of judgments, especially

following two state court collateral attacks and a federal collateral attack that was

litigated to the United States Supreme Court, the single fact of an intervening Supreme

Court decision, unclear in its relevance to this claim, is not sufficient to warrant

reopening the final judgment against the defendant.

There is one case in which we have ordered Rule 60(b)(6) relief based on an

intervening change in the law, Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009). That

case is materially different. Thompson involved a change in a state supreme court rule

to the effect that discretionary review was not required in order for criminal defendants

to exhaust their state appeals. The rule change—unlike the precedential development

in this case—unquestionably applied to the facts of Thompson, in which federal habeas

had been denied on the issues in question for failure to seek such discretionary review.

Id. at 433. Moreover, this court in Thompson heard simultaneously both the appeal from

the denial of the original federal habeas petition—which required reversal for

independent reasons—and the appeal from the Rule 60(b) denial. See id. at 428, 443–44.

Most significantly, however, in Thompson we departed from the acknowledged general

rule against relief from final judgments based on a change in the law on the ground that

that change was one of state procedural law. We reasoned:

We agree that the enactment of [Tennessee Supreme Court Rule 39] is an

extraordinary circumstance, and that nothing in the Supreme Court’s

opinion in Gonzalez undermined this Court's reasoning in [In re

Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004) (“Abdur’Rahman I”),

vacated by Bell v. Abdur’Rahman, 545 U.S. 1151 (2005)]. Unlike the

Supreme Court in Gonzalez, which found that a change in federal

decisional law by itself was not an extraordinary circumstance, this Court

in Abdur’Rahman I found the enactment of TSCR 39 to be an

extraordinary circumstance because refusing to recognize it “would

disserve the comity interests enshrined in AEDPA by ignoring the state

court's view of its own law.” 392 F.3d at 187. A federal court’s respect

for another state’s law was not at issue in Gonzalez, in which the Rule

60(b) motion was based solely on a change in federal decisional law

interpreting a federal statute. See also Blue Diamond, 249 F.3d at 524

(“[A] change in decisional law is usually not, by itself, an ‘extraordinary
No. 13-3368 McGuire v. Warden, Chillicothe Correctional Inst. Page 26

circumstance’ meriting Rule 60(b)(6) relief.”) (emphasis supplied).

Because this Court’s reasoning in Abdur'Rahman I is still valid after

Gonzalez, today we reaffirm our previous holding that a motion based

upon the promulgation of TSCR 39 is an extraordinary circumstance

warranting relief under Rule 60(b)(6).

Id. at 443. Thus the very basis for distinguishing Gonzalez in Thompson cuts against

Rule 60(b)(6) relief in this case. McGuire’s case does not involve a change in state law.

For these reasons, there was not a sufficient basis for the district court to provide

relief under Rule 60(b)(6) from the final judgment of conviction and sentence in this

case. The judgment denying Rule 60(b) relief is affirmed.