Tuesday, January 09, 2018

Court refuses to revisit death sentence despite deciding attorney’s failure to retain mental-health expert was inexcusable

Over a vigorous dissent by Judge White, the Sixth Circuit, in Miller v. Mays, affirmed the denial of habeas relief under Rule 60(b)(6) for Tennessee death-row inmate David Miller.

Notably, all three judges agreed that Miller’s trial counsel had no excuse for failing to retain a mental-health expert to help present sentencing mitigation evidence.

But the majority and dissent disagreed on two issues:
  1. Whether trial counsel’s error prejudiced Miller.
  2. Whether Miller exercised proper diligence in pursuing his Rule 60(b) motion.
The second issue is likely more-consequential for future habeas actions, but much more complicated, so let me start with prejudice.

In terms of prejudice, the majority reasoned that mitigation evidence from lay witnesses who told of Miller’s troubled childhood was of the same strength and subject matter as new declarations Miller presented from three mental-health experts. Judge White argued in dissent, however, that the expert declarations were substantially different because they explained how Miller’s childhood affected him mentally – a topic the lay witnesses were not qualified to address.

The second point of disagreement—whether Miller diligently pursued his Rule 60(b) motion—gets complicated fast.

Rule 60(b)(6) is a "break glass in case of emergency" provision. It allows relief after final judgment in "exceptional or extraordinary circumstances where principles of equity mandate relief." In other words, if some sort of gross injustice has occurred, the court can revisit the case. The motion must be made "within a reasonable time."

Last year's decision in Buck v. Davis gave Rule 60(b)(6) newfound weight. Specifically, Buck decided the rule provided a potential path to revisit a death sentence in the wake of Martinez and Trevino, two decisions that removed potential procedural barriers to habeas claims.

Miller tried the same move, arguing that Martinez and Trevino allowed him to pursue relief under Rule 60(b)(6). The problem, as the majority saw it, was that Miller took too long to file his claim.

The majority dove into the weeds on the timing of Miller raising his claim, ultimately finding an inexcusable 16-month gap. The majority's math is mindbendingly complicated (think Speedy Trial Act calculations). I'm putting my attempt to explain it in italics, in case you want to skip right to the dissent's view: 
Martinez came out while Miller's initial habeas case was in the Sixth Circuit, and he didn't raise it in the Sixth or in his cert petition. In fact, it wasn't until 18 months after Martinez that he moved for Rule 60(b)(6) relief. Although the Sixth Circuit held a year later (in a case named Hodges) that Martinez didn't apply to cases like Miller's, the Sixth Circuit reasoned that Miller had a full year (12 months) to raise a Martinez-related claim. Moreover, Trevino (which called Hodges into question) came out 4 months before Miller filed his claim. The majority added the 12 months (between Martinez and Hodges) and the 4 months (after Trevino) to arrive at 16 months.
The dissent wasn't having it. In Judge White's view, the proper starting point was simple: Trevino made it clear that Miller could seek relief, and Miller filed his motion 4 months after Trevino. By acting within four months, Judge White said, Miller was appropriately diligent.

I suppose this is a cautionary tale. Follow Supreme Court cases closely and raise potential new claims even if you think they might be barred under current Sixth Circuit precedent.

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