Appeal from U.S. District Court for the Eastern District of Arkansas - Little Rock. (4:06-cv-01608-GTE).
For United States of America, Plaintiff - Appellee: Linda B. Lipe, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Arkansas, Little Rock, AR; John Michael Pellettieri, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Appellate Section, Washington, DC.
For Daniel Lewis Lee, also known as Daniel Lewis Graham, also known as Danny Lee, also known as D L Graham, Defendant - Appellant: George Gust Kouros, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Federal Capital Habeas Project, Chicago, IL; Morris H. Moon, FEDERAL PUBLIC DEFENDER'S OFFICE, Federal Capital Habeas Project, Houston, TX; Karl Schwartz, FEDERAL PUBLIC DEFENDER'S OFFICE, Capital Habeas Unit, Wilmington, DE.
Daniel Lewis Lee, also known as Daniel Lewis Graham, also known as Danny Lee, also known as D L Graham, Defendant - Appellant, Pro se, Terre Haute, IN.
The petition for rehearing by the panel is denied. Judge Kelly dissents from the denial of the petition for rehearing by the panel.
KELLY, Circuit Judge, dissenting from the denial of panel rehearing.
I respectfully dissent from the denial of Lee's petition for rehearing by the panel, because the petition -- and the recent Seventh Circuit decision it brings to our attention -- provide convincing reasons for us to revisit the issues raised in this case. See Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015). In particular, I think it is appropriate to reconsider whether Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), should be limited to petitions for post-conviction relief filed by state prisoners under 28 U.S.C. § 2254, or whether, perhaps under limited circumstances, these two cases may also apply to similar petitions filed by federal prisoners under 28 U.S.C. § 2255.
If Martinez and Trevino have an animating principle, it is that a prisoner must have at least one opportunity to present a claim that trial counsel was ineffective -- and to present it with the assistance of effective counsel. Martinez pointed out that " if counsel's errors in an initial-review collateral proceeding do not establish cause to excuse [a] procedural default in a federal habeas proceeding, no court will review the prisoner's claims," 132 S.Ct. at 1316, and Trevino reiterated that " failure to consider a lawyer's 'ineffectiveness' during an initial-review collateral proceeding as a potential 'cause' for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim," 133 S.Ct. at 1921. In this case, if one grants that Lee's § 2255 counsel was ineffective in failing to attach the evidence in support of his ineffectiveness claim to his petition, Lee will have completed his journey through the court system without ever having had a chance to present a colorable ineffective assistance of trial counsel claim to a court with the aid of an effective lawyer -- which seems to be exactly the problem that Martinez and Trevino sought to remedy.
Whether the concerns that motivated Martinez and Trevino apply equally to the post-conviction procedures afforded to federal prisoners is a question worth examining. See Ramirez, 799 F.3d at 854. Like the state systems that Trevino discussed, the federal system also strongly discourages ineffectiveness of trial counsel claims on direct appeal.
See Ramirez, 799 F.3d at 852-53. In our circuit, " [w]e only review ineffective assistance of counsel claims on direct appeal in 'exceptional cases.'" United States v. Mathison, 760 F.3d 828, 831 (8th Cir. 2014). As a result, the § 2255 motion Lee brought was effectively his first opportunity to bring an ineffective assistance of trial counsel claim. Martinez was clear that habeas review for similarly-situated prisoners convicted in state court should not be foreclosed unless the prisoners had the benefit of attorney representation in bringing their ineffectiveness claims, and that representation was effective. Martinez, 132 S.Ct. at 1317 (" To present a claim of ineffective assistance at trial in accordance with the State's procedures, . . . a prisoner likely needs an effective attorney." ).
How the doctrine outlined in Martinez and Trevino would apply as a practical matter in the federal context is the next question. Unlike state collateral review proceedings, § 2255 proceedings lack a subsequent layer of review by another judicial system. Lee filed a Rule 60(b) motion, but treating his Rule 60(b) motion as the equivalent of a state prisoner's § 2254 petition potentially implicates the restrictions placed on such motions in the habeas context by the Supreme Court's decision in
Gonzalez v. Crosby. See 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 & n.5 (2005). Yet while Gonzalez held that a Rule 60(b) motion that is in effect a second or successive habeas petition is subject to the strict requirements of § 2244(b), it also recognized that " Rule 60(b) has an unquestionably valid role to play in habeas cases." Id. at 534. Even post-Gonzalez, there remains no bar to filing a Rule 60(b) motion that " attacks . . . some defect in the integrity of the federal habeas proceedings." Id. at 532. And Gonzalez stated only that a Rule 60(b) movant's " habeas counsel's omissions . . . ordinarily do not go to the integrity of the proceedings," Gonzalez, 545 U.S. at 532 n.5 (emphasis added). It did not hold that they can never do so. Perhaps this limiting language in Gonzalez, combined with our long-standing precedent that " Rule 60(b) is to be given a liberal construction so as to do substantial justice and 'to prevent the judgment from becoming a vehicle of injustice,'" MIF Realty L.P. v. Rochester Assocs.,92 F.3d 752, 755-56 (8th Cir. 1996), would permit a limited Rule 60(b) motion to reopen an initial-review collateral proceeding: when the Rule 60(b) motion was the prisoner's first opportunity to present an ineffective assistance of trial counsel claim, where the prisoner was otherwise diligent, and where the claim has " some merit."
See Martinez, 132 S.Ct. at 1318; see also Ramirez, 799 F.3d at 851; Cox v. Horn,757 F.3d 113, 123-24 (3d Cir. 2014) (holding that Rule 60(b) requires consideration of defendant-specific equitable principles ...