RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 18a0241p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDMUND ZAGORSKI,

Petitioner-Appellant,

v.

TONY MAYS, Warden,

Respondent-Appellee.

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No. 18-6052

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:99-cv-01193—Aleta Arthur Trauger, District Judge.

Decided and Filed: October 29, 2018

Before: COLE, Chief Judge; COOK and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, 

Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL OF 

TENNESSEE, Nashville, Tennessee, for Appellee.

COOK, J., delivered the opinion of the court in which GRIFFIN, J., joined. COLE, C.J. 

(pp. 10–15), delivered a separate dissenting opinion.

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OPINION

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COOK, Circuit Judge. Edmund Zagorski, a Tennessee capital prisoner, appeals from the 

district court’s denial of relief from judgment under Federal Rule of Civil Procedure 60(b), 

asserting that his impending execution, an intervening Supreme Court decision, and the merits of 

>
No. 18-6052 Zagorski v. Mays Page 2

three procedurally defaulted constitutional claims mandate equitable relief. Giving due 

deference to the district court’s discretion in balancing the equities, we AFFIRM.

I.

Like most capital cases, this case presents a tangled procedural history. In 1984, a 

Tennessee jury convicted Edmund Zagorski of two first-degree murders and sentenced him to 

death. The Tennessee Supreme Court affirmed both the convictions and sentence on direct 

appeal. State v. Zagorski, 701 S.W.2d 808, 810 (Tenn. 1985). 

After state courts denied all post-conviction relief, Zagorski petitioned a federal court for 

a writ of habeas corpus. Among numerous other claims, Zagorski alleged that his trial counsel 

was ineffective for failing to investigate an alternative suspect, that the trial court erred by 

improperly instructing the jury on the meaning of mitigating circumstances, and that the jury 

could not constitutionally impose the death penalty because prosecutors originally offered a plea 

deal for two life sentences. Finding all three arguments procedurally defaulted, the district court 

denied habeas relief, we affirmed, and the Supreme Court denied certiorari. See Zagorski v. Bell, 

326 F. App’x 336 (6th Cir. 2009), cert. denied, 559 U.S. 1068 (2010).

In 2012, the Supreme Court decided Martinez v. Ryan, permitting ineffective assistance 

of counsel at initial-review collateral proceedings to establish cause for a prisoner’s procedural 

default of an ineffective assistance claim at trial. 566 U.S. 1, 9 (2012); see also Trevino v. 

Thaler, 569 U.S. 413, 417 (2013). Zagorski returned to district court and moved for postjudgment relief under Federal Rule of Civil Procedure 60(b)(6). He alleged that a combination 

of Martinez and Edwards v. Carpenter, 529 U.S. 446 (2000), excused his procedural defaults, 

permitting him to litigate the merits of his underlying substantive claims. The district court 

denied all relief, but nonetheless granted a certificate of appealability. Certificate in hand, 

Zagorski appealed.

This court scheduled briefing, but with the date of his execution looming, Zagorski 

moved for a stay to permit full consideration of the merits of his Rule 60(b)(6) appeal. His 

concurrent requests for the stay in district and appellate court yielded contrary results: the district 

court denied Zagorski’s motion, and a divided panel of this court granted it. Ultimately, the 
No. 18-6052 Zagorski v. Mays Page 3

Supreme Court vacated our stay. Mays v. Zagorski, No. 18A385, 2018 WL 4934191 (U.S. Oct. 

11, 2018). A timely-issued reprieve from execution, however, provides this court the 

opportunity to take up the merits.

II.

The “catchall” provision in Rule 60(b)(6) vests courts with a deep reservoir of equitable 

power to vacate judgments “to achieve substantial justice” in the most “unusual and extreme

situations.” Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007). And with great power comes 

great responsibility; in deciding these motions, a district court must “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 the light of all the facts.” McGuire v. 

Warden, 738 F.3d 741, 750 (6th Cir. 2013) (citation omitted). Out of deference to this highly 

fact-bound process, this court asks not whether we think that Zagorski presented extraordinary 

circumstances warranting relief, but rather whether the district court abused its discretion in 

deciding that he did not. See Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014). 

III.

Zagorski submits that the district court incorrectly denied his Rule 60(b)(6) motion 

because it failed to consider the merits of three claims originally raised in his habeas petition: 

(1) his trial counsel ineffectively failed to fully investigate other suspects; (2) the trial court 

incorrectly instructed the jury on the meaning of mitigating circumstances in violation of Lockett 

v. Ohio, 438 U.S. 586 (1978); and (3) his capital sentence violated United States v. Jackson, 

390 U.S. 570 (1968), because the prosecution originally offered two life sentences in exchange 

for pleas of guilty to each murder before trial. Although the district court found all three claims 

procedurally defaulted on habeas review, Zagorski now argues that a combination of Martinez 

and Edwards overcomes all defaults. He also maintains that because this capital case involves 

“significant and substantial” constitutional claims that a court has never reviewed, the balance of 

the equities demands Rule 60(b)(6) relief. As did the district court, we evaluate each argument 

in turn.
No. 18-6052 Zagorski v. Mays Page 4

A. Claims Raised on Habeas Review

Although the district court denied habeas relief on Zagorski’s ineffective assistance of 

trial counsel claim, he contends that Martinez resuscitates it. In Martinez, the Supreme Court 

delineated a very narrow exception to the Coleman rule prohibiting a habeas petitioner from 

demonstrating cause for a procedural default by claiming ineffective assistance of trial counsel 

during state post-conviction proceedings. Martinez, 566 U.S. at 8; Coleman v. Thompson, 

501 U.S. 722, 752 (1991). But Martinez did not change a criminal defendant’s constitutional 

rights; it merely adjusted the equitable rules as to when he might avail himself of federal 

statutory relief. Wright v. Warden, 793 F.3d 670, 672 (6th Cir. 2015). And like most of our 

sister circuits, we have determined that changes in decisional law alone do not establish grounds 

for Rule 60(b)(6) relief. Abdur’Rahman v. Carpenter, 805 F.3d 710, 714 (6th Cir. 2015); see 

also Miller v. Mays, 879 F.3d 691, 698–99 (6th Cir. 2018). A petitioner must present something 

more than just the availability of statutory relief from which he was previously barred. 

Recognizing this, the district court rightly discounted this factor. 

The district court also denied relief for Zagorski’s procedurally defaulted Lockett and 

Jackson claims. In his Rule 60(b) motion, Zagorski took a new tack, arguing ineffective 

assistance because his trial counsel failed to object to both the jury instructions and the 

imposition of death. But these brand new ineffective assistance of counsel claims—presented for 

the very first time in this motion—are themselves procedurally defaulted. See Hodges v. Colson, 

727 F.3d 517, 530 (6th Cir. 2013). To excuse this default, Zagorski points to Edwards, which 

“require[s] a prisoner to demonstrate cause for his state-court default of any federal claim, and 

prejudice therefrom, before the federal habeas court will consider the merits of that claim.” 

529 U.S. at 451. Thus, Zagorski argues, Edwards supports his contention that, under Martinez, 

the ineffective assistance of post-conviction counsel establishes the cause and prejudice to 

excuse the newly raised and procedurally defaulted ineffective assistance of trial counsel claims, 

which in turn overcomes the procedural bar to the original Lockett and Jackson claims that 

Zagorski raised in his habeas petition. 

As the district court recognized, permitting a two-layer showing of cause to excuse the 

default of a substantive constitutional claim would detonate Coleman’s procedural default bar. 
No. 18-6052 Zagorski v. Mays Page 5

501 U.S. at 732. Coleman ensures state courts the first opportunity to correct any constitutional 

violations stemming from their own mistakes. See id. at 730–32. Zagorski’s reading flouts the 

very principle of federalism that the Supreme Court took pains to protect, and would permit 

habeas petitioners to resurrect procedurally defaulted claims in a motion for Rule 60(b)(6) relief 

by newly invoking the phrase: “post-conviction counsel ineffectively failed to raise an 

ineffective assistance of trial counsel claim.” We cannot read Martinez as the exception that 

swallows this rule. “If Coleman’s revetment is to be torn down, it is not for us to do it. Rather, 

we must follow the case which directly controls” and leave the Supreme Court to overrule its 

own decisions. Hunton v. Sinclair, 732 F.3d 1124, 1127 (9th Cir. 2013) (quotation omitted).

But even if we credited this expansive reading of Martinez and Edwards, we cannot 

address a habeas claim disguised as a motion for Rule 60(b) relief. The Supreme Court instructs 

us to construe a Rule 60(b) motion as a successive habeas petition if it “seeks to add a new 

ground for relief.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see also Moreland v. 

Robinson, 813 F.3d 315, 322–23 (6th Cir. 2016) (“A movant is not making a habeas claim when 

he seeks only to lift the procedural bars that prevented adjudication of certain claims on the 

merits. But he is making a habeas claim when he seeks to add a new ground for relief or seeks to 

present ‘new evidence in support of a claim already litigated.’” (quoting Gonzalez, 545 U.S. at 

531)). By now asserting ineffective assistance of trial counsel claims in an attempt to revive his 

Lockett and Jackson claims, Zagorski presents new constitutional bases for habeas relief.1 Thus, 

he needed this court’s authorization to pursue those claims. Moreland, 813 F.3d at 322 (citing 

28 U.S.C. § 2244(b)(3)). 

Although we need not address the merits, see Sheppard v. Robinson, 807 F.3d 815, 820 

(6th Cir. 2015), we note that to prevail under 28 U.S.C. § 2244(b)(2)(A), Zagorski must show 

that each new ineffective assistance of trial counsel claim “relies on a new rule of constitutional 

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

 

1The dissent suggests that Zagorski’s newly-raised ineffective assistance of counsel argument presents a 

procedural hurdle and not a substantive claim. This cannot be true. Zagorski’s theory of Martinez and Edwards 

permits us to reach the underlying Lockett and Jackson claims only through an ineffective assistance of trial counsel 

claim. This ineffective assistance of trial counsel claim raises substantive concerns about Zagorki’s Sixth 

Amendment right to counsel. Thus, though the dissent correctly states that Zagorski seeks “to lift the procedural 

bars that prevented consideration of his Lockett claim,” he attempts to do so with a substantive claim. Dissent at 13.
No. 18-6052 Zagorski v. Mays Page 6

unavailable[.]” Because he relies on Martinez—an equitable rather than constitutional rule—he 

cannot. See Moreland, 813 F.3d at 326.

B. Other Equitable Factors

In addition to his Martinez arguments, Zagorski argues that his capital sentence and the 

merits of his constitutional claims present extraordinary circumstances warranting Rule 60(b)(6) 

relief, and that the district court abused its discretion when it concluded otherwise. We disagree.

“[E]ven in cases involving the death penalty, we must afford ‘profound respect’ to the 

finality interests stemming from our prior decision denying habeas relief.” Miller, 879 F.3d at 

700–01 (quoting Sheppard, 807 F.3d at 821). This does not mean that we ignore the 

“irreversible finality of [an impending] execution,” or that we do not take seriously the Supreme 

Court’s instruction that “[c]onventional notions of finality of litigation have no place where life 

or liberty is at stake and infringement of constitutional rights is alleged.” Thompson v. Bell, 

580 F.3d 423, 444 (6th Cir. 2009) (quoting Sanders v. United States, 373 U.S. 1, 8 (1963)). But 

as the district court recognized, impending capital punishment does not mandate Rule 60(b) 

relief, especially when the merits of Zagorski’s defaulted claims do not support such an 

extraordinary remedy. See Miller, 879 F.3d at 701; see also Gonzalez, 545 U.S. at 535–36 

(noting that habeas cases rarely present the appropriate circumstances for exercising a court’s

equitable authority under Rule 60(b)(6)). 

Like the panel in Miller, we do not necessarily agree that our cases require us to consider 

the merits of Zagorski’s underlying constitutional claims when evaluating whether the district 

court abused its discretion in balancing the equities and denying Rule 60(b)(6) relief. See Miller, 

879 F.3d at 702–03. Neither a Third Circuit case, Cox v. Horn, 757 F.3d 113, 124–25 (3d Cir. 

2014),2 nor an entirely distinguishable Supreme Court case involving the denial of a certificate of 

 

2The dissent relies on Cox to support adopting a “flexible, multifactor approach” that more seriously 

weighs changes in decisional law when balancing the equities for Rule 60(b)(6) relief. Yet the Third Circuit’s more 

flexible approach presents a minority position within the circuits. See 12 J. Moore, Moore’s Federal Practice 

§§ 60.48[5][b]–[c] (3d Ed. 2018). Most circuits—including our own—require something much more 

“extraordinary” than the change in a law that an appellant originally decided not to appeal, but now seeks to benefit 

from. See Ackermann v. United States, 340 U.S. 193, 202 (1950) (“Neither the circumstances of petitioner nor his 

excuse for not appealing is so extraordinary as to bring him within . . . Rule 60(b)(6).”) And notably, none of the 

cases that the dissent cites ultimately granted a habeas petitioner Rule 60(b)(6) relief. 
No. 18-6052 Zagorski v. Mays Page 7

appealability and a substantive question as to whether a petitioner had received ineffective 

assistance of counsel, Buck v. Davis, 137 S. Ct. 759, 775–80 (2017), persuades us otherwise. 

Permitting appellants to evade habeas jurisdictional bars by raising the merits of a procedurally 

defaulted claim in a Rule 60(b)(6) motion could “expose federal courts to an avalanche of 

frivolous postjudgment motions.” Gonzalez, 545 U.S. at 534–35. But Miller acknowledged that 

our cases presented some uncertainty as to the proper course of action, see Wright, 793 F.3d at 

673–74, and assumed it appropriate to consider the merits to decide “whether it changes the 

balance of equities with respect to [the appellant’s] Rule 60(b)(6) motion.” 879 F.3d at 702. We 

do the same.

To prevail on his underlying ineffective assistance of trial counsel claim, Zagorski must 

show that trial counsel’s alleged failure to investigate other suspects for the murders constituted 

deficient performance that resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 

(1984). Because “there can be no finding of ineffective assistance of counsel without prejudice,” 

Phillips v. Bradshaw, 607 F.3d 199, 216 (6th Cir. 2010), we look first to whether Zagorski shows 

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 

Zagorski cannot satisfy this burden. He provided several statements to the police 

“implicat[ing] himself in the killings” along with “other mercenaries,” but declined to identify 

any other individuals he claimed were involved. Zagorski, 701 S.W.2d at 811–12. As the 

district court explained, given the overwhelming evidence against Zagorski, a more thorough 

investigation of another suspect would not have reasonably been likely to affect the outcome of 

the trial. 

Next, Zagorski’s Lockett claim requires us to examine “whether the [allegedly 

unconstitutional] instruction by itself so infected the entire trial that the resulting conviction 

violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Significantly, a juror in a 

capital case may “not be precluded from considering, as a mitigating factor, any aspect of a 

defendant’s character or record and any of the circumstances of the offense that the defendant 

proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604. As the district court 
No. 18-6052 Zagorski v. Mays Page 8

noted, no such violation occurred here. When asked by the jury to define what constitutes a 

mitigating circumstance, the trial court stated:

Mitigating circumstances are within your province, if there are any. You have 

heard the evidence of the case, and no additional evidence was produced at the 

sentencing hearing, so you may consider all of the evidence that was presented 

in the entire case. The law sets out certain mitigation circumstances which have 

no particular applicability in this case, but you’re not limited to those, so you 

can consider any mitigating circumstances that in your judgment would 

comply with the instructions given.

Citing a dissent from a denial of certiorari to the Supreme Court, Hodge v. Kentucky, 568 U.S. 

1056 (2012) (Sotomayor, J., dissenting), Zagorski takes exception with the trial court’s followup, when the jury foreman requested a definition of “mitigating”:

Mitigating would mean any circumstance which would have a tendency to lessen 

the aggravation, which would have any tendency to — (Pause) — give a reason 

for the act, I cannot think of a better definition right now, except that it’s opposed 

to aggravating and would have a tendency to lessen or tend — not “to”, 

necessarily, but tend to justify, and to take away any of the aggravation of the 

circumstance.

But here, all the mitigating evidence Zagorski marshalled during his habeas petition had already 

been presented to the jury during the guilt phase of trial. See Zagorski, 701 S.W.2d at 810–11. 

The court had already instructed the jury that it could consider that evidence; its later instruction 

changed nothing. 

Finally, Zagorski’s claim under United States v. Jackson also necessarily fails. Zagorski 

asserts that because prosecutors offered him two life sentences if he pleaded guilty to the 

murders, imposing the death penalty after trial unconstitutionally burdened his rights to assert his 

innocence and demand a jury trial. But Jackson invalidated a sentencing provision in the Federal 

Kidnapping Act because it permitted a court to impose the death penalty on only those 

defendants who insisted on invoking their constitutional rights to plead not guilty and present 

their case to a jury. 390 U.S. at 582–83. It did not hold that prosecutors may not offer lesser 

sentences in exchange for a guilty plea in capital cases. See, e.g., Brady v. United States, 397 

U.S. 742, 747 (1970). To the contrary, many Supreme Court cases repudiate such a notion, see 

United States v. Mezzanatto, 513 U.S. 196, 210 (1995), and specifically reinforce the teaching 
No. 18-6052 Zagorski v. Mays Page 9

that “a State may encourage a guilty plea by offering substantial benefits in return for the plea.” 

Corbitt v. New Jersey, 439 U.S. 212, 219 (1978). Although plea bargaining certainly 

discourages a defendant from exercising his Fifth and Sixth Amendment rights, “the imposition 

of these difficult choices [is] . . . an inevitable attribute of any legitimate system which tolerates 

and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973). 

IV.

Because the district court did not abuse its discretion when it decided that none of 

Zagorski’s proposed equitable considerations merit relief from judgment under Rule 60(b)(6), we 

AFFIRM.
No. 18-6052 Zagorski v. Mays Page 10

_________________

DISSENT

_________________

COLE, Chief Judge, dissenting. Zagorski’s motion for relief rests on Rule 60(b)(6), 

which permits relief “only in exceptional or extraordinary circumstances[.]” Olle v. Henry & 

Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (citations omitted). In denying Zagorski’s 

motion, the district court held that Martinez v. Ryan, 566 U.S. 1 (2012), “is not an extraordinary 

circumstance warranting Rule 60(b)(6) relief.” This finding is unobjectionable and accords with 

our precedent. But the Rule 60(b)(6) inquiry does not end with the determination that Martinez

alone is insufficient to warrant relief, because Zagorski does not request relief based on Martinez 

alone. The combination of a change in decisional law, a meritorious underlying constitutional 

claim, and the irreversible finality of capital punishment warrants relief. In failing to fully 

consider the combined weight of these factors, the district court abused its discretion.

I.

Zagorski presents two claims of ineffective assistance of trial counsel. First, he claims 

that, “in violation of the Eighth Amendment and Lockett v. Ohio, 438 U.S. 586 (1978), the trial 

court erroneously defined ‘mitigating evidence,’ thereby precluding full consideration of 

mitigating evidence of the circumstances of the offense,” and “trial counsel was ineffective in 

failing to object” to this constitutional violation. Second, he claims that “trial counsel failed to 

effectively show Jimmy Blackwell’s involvement in these murders (for purposes of showing 

reasonable doubt at the guilt phase or residual doubt at sentencing).” Appellant Br. 10.

Zagorski concedes both claims were procedurally defaulted. But “counsel’s 

ineffectiveness in failing properly to preserve the claim for review in state court” can suffice as 

“‘cause’ to excuse a procedural default” of a substantive claim. Edwards v. Carpenter, 529 U.S. 

446, 451 (2000). And “[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.” Martinez, 566 U.S. at 9. Taken together, Zagorski argues these holdings instruct that 

ineffective assistance of post-conviction counsel “supplies the ‘cause’ for the otherwise defaulted 
No. 18-6052 Zagorski v. Mays Page 11

cause argument that trial counsel was ineffective for failing to object, under Lockett, to the trial 

judge’s instructions.” Appellant Br. at 8. 

In my view, Zagorski is correct. As the district court observed, our cases counsel against 

reading Martinez any more broadly than the Court intended. See Hodges v. Colson, 727 F.3d 

517, 531 (6th Cir. 2013). But unlike the claims at issue in Hodges, Zagorski’s claims fall 

squarely within the scope of the Martinez exception—to “establish cause for [his] procedural 

default of a claim of ineffective assistance at trial” (trial counsel’s failure to object to the Eighth 

Amendment violation), Zagorski presented a claim of “[i]nadequate assistance of counsel at 

initial-review collateral proceedings” (post-conviction counsel’s failure to spot trial counsel’s 

error). Martinez, 566 U.S. at 9. This court has long held that failure to object to constitutional 

violations or other clear legal errors can constitute ineffective assistance within the meaning of 

Strickland. See, e.g., McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012); Lucas v. 

O’Dea, 179 F.3d 412, 418 (6th Cir. 1999). That trial counsel’s error caused a substantive 

constitutional violation should not prohibit a criminal defendant from arguing his counsel’s error 

constitutes ineffective assistance for Martinez and Edwards purposes.

Zagorski’s reading of Martinez and Edwards is fully consistent with the reasoning 

underlying both cases. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court 

established the general rule that an attorney’s mistake in a collateral proceeding where the 

defendant had no right to counsel does not establish cause for procedural default. But in 

Martinez, the Court carved out a “narrow exception” to that rule: “Inadequate 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.” 566 U.S. at 9. 

In describing why the Martinez exception to the general rule was necessary, the Supreme 

Court explicitly recognized the relationship between Martinez and Edwards:

A prisoner’s inability to present a claim of trial error is of particular concern when 

the claim is one of ineffective assistance of counsel. The right to the effective 

assistance of counsel at trial is a bedrock principle in our justice system. . . . 

Effective trial counsel preserves claims to be considered on appeal, see, e.g., Fed. 

Rule Crim. Proc. 52(b), and in federal habeas proceedings, Edwards v. Carpenter,

529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
No. 18-6052 Zagorski v. Mays Page 12

Martinez, 566 U.S. at 12. Part of the reason the Court justified the need for the Martinez 

exception was its concern that ineffective trial counsel may fail to preserve claims for habeas 

review—exactly what happened to Zagorski.

The majority argues that “permitting a two-layer showing of cause to excuse the default 

of a substantive constitutional claim would detonate Coleman’s procedural default bar.” 

Zagorski’s approach would require this court to undertake a two-layer cause analysis to excuse 

procedural default. But the Supreme Court in Edwards contemplated this result. Justice Scalia, 

writing for the majority in Edwards, found that a claim of “ineffective assistance adequate to 

establish cause for the procedural default of some other constitutional claim is itself an 

independent constitutional claim,” and that while such a claim “generally must ‘be presented to 

the state courts as an independent claim before it may be used to establish cause for a procedural 

default,’” the procedural default of “an ineffective-assistance-of-counsel claim asserted as cause 

for the procedural default of another claim” may “itself be excused if the prisoner can satisfy the 

cause-and-prejudice standard with respect to that claim.” 529 U.S. at 451–53. Thus, a two-layer 

showing is also consistent with Supreme Court precedent.

Determining whether a defendant’s two sets of ineffective counsel warrant excuse of two 

instances of procedural default is necessarily a thorny undertaking, and it would not warrant Rule 

60(b)(6) relief every time a defendant invokes a simple “phrase,” as the majority suggests. 

Rather, the defendant will still have to overcome the unenviable hurdle of meeting the Strickland 

deficiency and prejudice requirements and the Martinez substantiality requirement before his 

motion would be granted. As the Third Circuit has held, where a defendant facing the death 

penalty “has navigated each twist of the habeas labyrinth” and “overcome every hurdle,” “we 

may review the merits.” Richardson v. Superintendent Coal Twp. SCI, No. 15-4105, 2018 WL 

4701949, at *12 (3d Cir. Oct. 2, 2018). The same should be true in the context of a Rule 

60(b)(6) motion.

Nor does Supreme Court precedent require us to construe Zagorski’s claims as a 

successive habeas petition rather than a Rule 60(b) motion. As the majority notes, “[a] movant is 

not making a habeas claim when he seeks only to lift the procedural bars that prevented 

adjudication of certain claims on the merits. But he is making a habeas claim when he seeks to 
No. 18-6052 Zagorski v. Mays Page 13

add a new ground for relief or seeks to present ‘new evidence in support of a claim already 

litigated.’” Moreland v. Robinson, 813 F.3d 315, 322–23 (6th Cir. 2016). Zagorski’s claims 

clearly amount to the former—he is seeking to lift the procedural bars that prevented 

consideration of his Lockett claim on the merits by challenging the doubly-ineffective assistance 

that led to the procedural default at issue.

Martinez excuses procedural default of a claim that trial counsel was ineffective where a 

petitioner can make two showings: first, that his post-conviction counsel provided ineffective 

assistance, and second, that the underlying claim of ineffective assistance of trial counsel is a 

“substantial one, which is to say that the prisoner must demonstrate that the claim has some 

merit.” 566 U.S. at 14. To establish ineffective assistance, a petitioner must satisfy Strickland v. 

Washington’s requirements of deficiency and prejudice. 466 U.S. 668, 687 (1984). 

Zagorski showed that his post-conviction counsel’s assistance was ineffective. 

Specifically, Zagorski presented evidence that his post-conviction counsel never recognized that 

trial counsel should have objected to the jury instruction under Lockett, which amounts to 

deficient performance under the Strickland analysis. See Sims v. Livesay, 970 F.2d 1575, 1580–

81 (6th Cir. 1992) (“We discern no strategy in [counsel’s action], only negligence.”).

Zagorski’s claim that his trial counsel was ineffective meets Martinez’s threshold of 

substantiality. There is at least “some merit” to his claim that trial counsel’s failure to recognize 

and object to an unconstitutional jury instruction constitutes deficient performance. See, e.g.,

Hinton v. Alabama, 571 U.S. 263, 274 (2014) (“An attorney’s ignorance of a point of law that is 

fundamental to his case combined with his failure to perform basic research on that point is a 

quintessential example of unreasonable performance under Strickland.”). 

Zagorski’s prejudice claim also has at least “some merit.” Failure to object to the 

mitigation instruction could have prejudiced him in two ways. First, the instruction prevented 

jurors from considering as mitigating evidence that the victims were “armed, heavily intoxicated, 

drug dealers.” Appellant Br. at 19. The district court was correct to reject any “suggestion that 

‘a defendant is less culpable if he murders a vile person.’” But a juror could have drawn other 

inferences—for example, that the victims were dangerous, and even if that did not “tend to 
No. 18-6052 Zagorski v. Mays Page 14

justify” the crime as the district court instructed, it contributed to the circumstances of the crime. 

See Lockett, 438 U.S. 586, 604 (holding that jurors must be permitted to consider “any of the 

circumstances of the offense” as mitigating evidence). These interpretations highlight why the 

lack of “individualized consideration of mitigating factors” is unconstitutional in capital cases: 

preventing the jury “from giving independent mitigating weight to aspects of the defendant’s 

character and record and to circumstances of the offense proffered in mitigation creates the risk 

that the death penalty will be imposed in spite of factors which may call for a less severe 

penalty.” Id. at 605–06. If the jury received the correct mitigating instruction and made the 

individualized consideration the Eighth Amendment requires, “there is a reasonable probability 

that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 

537 (2003).

Zagorski’s briefing also contains a second, sufficiently “substantial” theory that bolsters 

his contention that counsel’s deficiency prejudiced him. Zagorski’s second ineffective assistance 

claim is premised on his attorney’s failure to present mitigating evidence of another suspect. 

“The Tennessee Supreme Court has stated that residual doubt is a nonstatutory mitigating 

circumstance[.] Such evidence ‘may consist of proof . . . that indicates the defendant did not 

commit the offense, notwithstanding the jury’s verdict following the guilt phase.’” Sutton v. 

Bell, 683 F. Supp. 2d 640, 715 (E.D. Tenn. 2010). If not for ineffective counsel, the jury would 

have received (a) evidence of another suspect’s plot to kill the victim and (b) a jury instruction 

on mitigation broad enough to encompass the new evidence of an alternative suspect. With these 

two material changes in Zagorski’s proceedings, the probability that at least one juror would not 

have imposed the death sentence is even greater. I would find Zagorski presented a sufficiently 

substantial Martinez claim to excuse his procedural default.

II.

“In determining whether extraordinary circumstances are present, a court may consider a 

wide range of factors,” including “‘the risk of injustice to the parties’ and ‘the risk of 

undermining the public’s confidence in the judicial process.’” Buck v. Davis, 137 S. Ct. 759, 778 

(2017) (citations omitted). The district court’s abuse of discretion lies in its failure to fully 

consider the remaining factors that Zagorski put forth in addition to Martinez. 
No. 18-6052 Zagorski v. Mays Page 15

The district court acknowledged and dismissed Zagorski’s other proposed factors at the 

end of its opinion, noting there had been “no ‘dramatic[] shift,’ or any shift at all, in any of the 

petitioner’s other factors.” But no such shift is required. A death sentence is itself an equitable 

factor that moves the needle in favor of granting Zagorski’s motion for relief under Rule 

60(b)(6). We have repeatedly embraced the “Supreme Court’s admonition that ‘[c]onventional 

notions of finality ... have no place where life or liberty is at stake and infringement of 

constitutional rights is alleged.’” See, e.g., Miller v. Mays, 879 F.3d 691, 700–01 (6th Cir. 2018) 

(quoting Sanders v. United States, 373 U.S. 1, 8 (1963)). In considering Rule 60(b)(6) motions 

in capital cases, we have held that “the finality of the judgment against [a defendant] must be 

balanced against the more irreversible finality of his execution,” in addition to any constitutional 

concerns the defendant raises. Wright v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670, 

673 (6th Cir. 2015) (emphasis added); see also Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014) 

(finding courts must consider “whether the capital nature of [the] case or any other factor might 

counsel that Martinez be accorded heightened significance ... or provide a reason ... for granting 

60(b)(6) relief.”). This balancing did not take place. Neither a defendant’s “interest in avoiding 

the death penalty” by itself nor a “change in decisional law” by itself would create exceptional 

circumstances. Miller, 879 F.3d at 701; Wright, 793 F.3d at 672. But the combined weight of 

the shift in decisional law, the death sentence, and the meritorious Martinez claim creates an 

extraordinary circumstance that warrants granting Zagorski’s Rule 60(b)(6) motion. 

I would reverse the district court’s order and grant Zagorski’s motion for relief.