Landrum v. Anderson

813 F.3d 330

Lawrence LANDRUM, Petitioner–Appellant,

v.Carl ANDERSON, Warden, Respondent–Appellee.

No. 14–3591.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 7, 2015.

Decided and Filed: Feb. 12, 2016.

Rehearing En Banc Denied April 12, 2016.^*

ARGUED: Gerald W. Simmons, Cincinnati, Ohio, for Appellant. Jocelyn Kelly Lowe, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Gerald W. Simmons, Cincinnati, Ohio, Randall L. Porter, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Charles L. Wille, David M. Henry, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BOGGS, BATCHELDER, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Lawrence Landrum appeals the district court's denial of his motion to reopen his petition for habeas corpus under Rule 60(b) of the Federal Rules of Civil Procedure. Landrum argues that, in light of Martinez v. Ryan, –––U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the alleged ineffective assistance of his post-conviction counsel enables us to examine the merits of his ineffective-assistance-of-trial-counsel claim, that the district court abused its discretion when it denied his Rule 60(b) motion, and that he was denied effective assistance of trial counsel. For grounds other than those relied on by the district court, we affirm.

I.

Landrum was convicted of aggravated burglary and aggravated murder for breaking into eighty-four-year-old Harold White's apartment and killing him in September 1985. The jury found two death penalty specifications: (1) Landrum committed aggravated murder to escape detection for committing burglary, and (2) Landrum was the principal offender in an aggravated murder while committing or attempting burglary. Evidence at trial established that Landrum and Grant Swackhammer entered White's apartment to burglarize it. After White returned to his apartment and threatened to call the police, Swackhammer struck White repeatedly on the head with a railroad bolt, causing White to fall. Landrum then got on top of him, searched his pockets, and told Swackhammer to get a knife from the kitchen. Later that night, Landrum told friends that he had slit White's throat, but at trial, he testified that he left the room and returned to discover that Swackhammer had killed White. Landrum and Swackhammer took about $80 and pills from White's apartment. The Ohio Supreme Court affirmed Landrum's conviction and sentence in 1990. The United States Supreme Court denied certiorari in 1991.

Landrum filed a petition for state post-conviction relief in 1996. The trial court denied Landrum's petition; the Ohio Court of Appeals affirmed. The Ohio Supreme Court denied further review.

In 1998, Landrum applied to reopen his appeal under Rule 26(B) of the Ohio Rules of Appellate Procedure. The Ohio Court of Appeals denied relief, finding that Landrum failed to show good cause for delaying his application; the Ohio Supreme Court affirmed that decision.

Landrum filed a petition in federal court for a writ of habeas corpus in 1996, an amended petition in 1999, and a second amended petition in 2000. The district court ruled, inter alia, that Landrum did not procedurally default his claim of ineffective assistance of appellate counsel because Rule 26(B) was not firmly established and regularly followed in Ohio capital cases. The district court granted Landrum a conditional writ on the basis that his counsel was ineffective in the guilt phase for failing to introduce testimony from Rameal Coffenberger that Swackhammer had confessed to cutting White's throat (the Coffenberger claim). Coffenberger was an acquaintance of Swackhammer and Landrum, and had allegedly encountered Swackhammer shortly after the murder, though there is evidence that Coffenberger told police he had not seen Swackhammer after the murder. According to Landrum's trial attorney, Coffenberger, who was incarcerated at the time, reached out to him to disclose "information that could potentially help [Landrum]." Trial Tr. Vol. 7, 128, Feb. 21, 1986, ECF No 282–2.

On appeal, this court reversed the district court's decision to grant Landrum relief based on the Coffenberger claim. Landrum v. Mitchell, 625 F.3d 905, 909 (6th Cir.2010). We held that Landrum procedurally defaulted this claim and did not show cause for his default or prejudice to his defense. Id. at 916–19. Landrum's counsel did not raise the claim either on direct appeal or in state post-conviction proceedings, and his application to reopen the direct appeal on the basis of ineffective assistance of appellate counsel was untimely. Id. We held that Rule 26(B)'s time constraints and a requirement of "good cause" showing for a late filing were firmly established and regularly followed as of January 1996, and that the procedure for raising claims of ineffective assistance of appellate counsel was well-established by the time Landrum filed his Rule 26(B) application in 1998. Id. at 916–17. We further held that Landrum could not rely on ineffective assistance of post-conviction counsel as cause to excuse his default because "there is no constitutional right to an attorney in post-conviction proceedings." Id. at 919 (citing Coleman v. Thompson, 501 U.S. 722, 752–53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ).

In 2012, Landrum filed a motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure. He relied on Martinez to argue that ineffective assistance of post-conviction counsel excused the procedural default of his claim that trial counsel was ineffective for failing to present the Coffenberger claim in the guilt phase. The magistrate judge recommended granting the motion to reopen so that the district court could consider the merits of the claim. The district court adopted the magistrate judge's report and recommendation and granted Landrum's Rule 60(b) motion. After the parties briefed the Coffenberger claim, the magistrate judge recommended finding that: (1) Landrum received ineffective assistance of post-conviction counsel; (2) ineffective assistance excused his failure to present the Coffenberger claim in post-conviction proceedings; (3) the Coffenberger claim had merit; (4) the district court was barred by the law of the case doctrine from granting Landrum habeas relief; and (5) the district court should grant Landrum a certificate of appealability (COA) "so that the Sixth Circuit can reconsider its prior decision in light of Martinez. " Report and Recommendations 7–18, ECF No. 277. In 2014, the district court, over the objections of both parties, adopted the magistrate judge's report and recommendation, denied Landrum relief on the Coffenberger claim based upon the law-of-the-case doctrine, and granted Landrum a COA.

Because we conclude Landrum has not presented a "substantial claim" of ineffective assistance of counsel, we affirm the district court's judgment on alternative grounds. See Allen v. Diebold, Inc., 33 F.3d 674, 676 (6th Cir.1994) (noting this court's power "to affirm on alternative grounds not reached by the court below").¹

II.

This court reviews a district court's decision to grant or deny a Rule 60(b) motion for abuse of discretion. Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir.2014) ; Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir.2006). "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment." Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir.2006) (quoting Amernational Indus., Inc. v. Action–Tungsram, Inc.,

925 F.2d 970, 975 (6th Cir.1991) ).

III.

A.

As a preliminary matter, the Warden argues that the district court erred in initially granting Landrum's Rule 60(b) motion. Landrum responds that because the Warden did not raise the issue in a cross appeal, this court lacks jurisdiction to hear it. It is true that, absent a cross-appeal, the appellee "may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." Smith v. Ky. State Univ., 97 Fed.Appx. 22, 25 (6th Cir.2004) (quoting United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924) ). However, this court may consider any arguments that support the lower court's judgment, even if a cross appeal is not filed. Id.; see also Am. Ry. Express Co., 265 U.S. at 435–36, 44 S.Ct. 560 ("[T]he appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record.... [Appellee] does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed. ") (emphasis added); Harrah's Entm't, Inc. v. Ace Am. Ins. Co., 100 Fed.Appx. 387, 391 (6th Cir.2004) (citation omitted). The Warden's argument simply gives additional reasons why this court should affirm the district court's denial of relief, so we will consider this argument.

B.

A movant seeking relief under Rule 60(b)(6) must show "extraordinary circumstances" justifying the reopening of a final judgment, and such circumstances rarely occur in habeas cases. Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ; Tanner v. Yukins, 776 F.3d 434, 446 (6th Cir.2015) ; Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir.2009). "[I]t ‘is well established that a change in decisional law is usually not, by itself, an extraordinary circumstance meriting Rule 60(b)(6) relief.’ " Henness v. Bagley, 766 F.3d 550, 557 (6th Cir.2014) (quoting McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir.2013) ); see also Stokes v. Williams, 475 F.3d 732, 734–35 (6th Cir.2007). For example, a change in the Supreme Court's interpretation of the statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA) was...