             Case: 12-13952    Date Filed: 01/06/2014   Page: 1 of 53


                                                                   [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT


                                     No. 12-13952


                       D.C. Docket No. 2:01-cv-00983-LSC

THOMAS D. ARTHUR,
                                                              Petitioner-Appellant,

                                     versus

KIM TOBIAS THOMAS,
Interim Commissioner, Alabama Department of Corrections,
in his official capacity,

                                                            Respondent-Appellee.



                    Appeal from the United States District Court for
                           the Northern District of Alabama


                                (January 6, 2014)

Before HULL, MARCUS, and WILSON, Circuit Judges.

HULL, Circuit Judge:

      Death row inmate Thomas Arthur appeals the denial of his Federal Rule of

Civil Procedure 60(b)(6) Motion for Relief from Judgment. Arthur asserts that the

Supreme Court’s issuance of its decision in Martinez v. Ryan, 566 U.S. ___, 132 S.
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Ct. 1309 (2012), constitutes an extraordinary circumstance under Rule 60(b)(6)

sufficient to justify the reopening of the final judgment in his prior 28 U.S.C.

§ 2254 habeas petition. After reviewing the record and considering the arguments

presented in the briefs, and with the benefit of oral argument, we affirm.

                                    I. BACKGROUND 1

       Most of this opinion recounts the 30-year history of Arthur’s conviction for

the murder of Troy Wicker, which involved three jury trials, three direct appeals,

multiple state and federal post-conviction proceedings, and several lawsuits. This

procedural background, though lengthy, helps demonstrate (1) why we must affirm

the district court’s denial of Arthur’s Rule 60(b)(6) motion because Martinez

involves only the procedural default doctrine as to an ineffective-trial-counsel

claim in initial-review state collateral proceedings and does not apply to Arthur’s




       1
          The facts and procedural history are taken principally from the state court’s record, the
district court’s record, and prior relevant decisions in Arthur’s case. See, e.g., Arthur v. Allen,
452 F.3d 1234, modified on reh’g, 459 F.3d 1310 (11th Cir. 2006), cert. denied, 127 S. Ct. 2033
(2007); Arthur v. Allen, 574 F. Supp. 2d 1252 (S.D. Ala. 2008); Ex parte Arthur, 711 So. 2d
1097 (Ala. 1997); Ex parte Arthur, 472 So. 2d 665 (Ala. 1985); Arthur v. State, 71 So. 3d 733
(Ala. Crim. App. 2010), cert. denied, 132 S. Ct. 453 (2011); Arthur v. State, 820 So. 2d 886 (Ala.
Crim. App. 2001), cert. denied, 122 S. Ct. 1909 (2002); Arthur v. State, 711 So. 2d 1031 (Ala.
Crim. App. 1996), aff’d sub nom. Ex parte Arthur, 711 So. 2d 1097 (Ala. 1997). Because there
have been so many proceedings, it is helpful to recount now in one place what has transpired
before.


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§ 2254 petition that was barred by AEDPA’s statute of limitations 2 and (2) in any

event, why Arthur has not shown an extraordinary circumstance necessary to

proceed under Rule 60(b)(6).

A.     West Murder Conviction (1977)
       Before the 1982 brutal murder of Troy Wicker at issue here, Arthur was

convicted in 1977 for the equally brutal murder of Eloise Bray West, the sister of

Arthur’s common-law wife. See Ex parte Arthur, 472 So. 2d 665, 669 (Ala. 1985).

Arthur killed West at a commercial office during business hours. When West

failed to reveal the location of Arthur’s wife, Arthur drew two guns, aimed one at

West’s head, and said, “[T]ell me where my wife is, or I’m going to blow your

head off.” As West picked up the telephone, Arthur fired both guns. One bullet

went into the floor in front of West’s desk, one bullet hit a witness in his side, and

one bullet struck West in the right eye, killing her nearly instantly.

       After a jury trial in 1977, Arthur was convicted of second-degree murder and

sentenced to life imprisonment.




       2
        See Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104–
132, §101, 110 Stat. 1214, 1217 (1996) (codified in scattered sections of Title 28 of the U.S.
Code, with one-year limitations period codified at 28 U.S.C. § 2244(d)).


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B.    Wicker Murder (1982)
      While serving his life sentence for the West murder, Arthur joined a work

release program. While on work release, Arthur had an affair with Judy Wicker.

In 1982, Judy Wicker offered Arthur $10,000 in exchange for killing her husband,

Troy Wicker. Arthur accepted the offer.

      The day before he murdered Wicker, Arthur asked an acquaintance, Patricia

Green, for ammunition. Green obliged. Arthur told Green that the bullets would

be used to kill someone.

      On the night of Troy Wicker’s murder, Arthur wore an “afro” wig and dark

face makeup to disguise himself as a black man. He then entered Troy Wicker’s

bedroom while he slept and murdered Wicker by shooting him in the right eye at

close range with a pistol. Troy Wicker died almost instantly.

      When officers arrived at the Wicker residence, they found Troy Wicker

murdered in his bed; his wife, Judy Wicker, lying on the floor with traces of blood

on her face; and Judy Wicker’s sister kneeling beside her. Judy Wicker told

investigators that, when she returned home after dropping her children off at

school, she found a black man in her home. She said that the intruder raped her,

knocked her unconscious, and shot her husband.




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      After discovering discrepancies in Arthur’s work release time and payment

logs, an investigation into Arthur’s work-release activities began. During a search,

$2,000 in cash was found in Arthur’s personal belongings. Thereafter, authorities

questioned Arthur and, subsequently, arrested him for Troy Wicker’s murder.

Judy Wicker had collected $90,000 in life insurance proceeds due to Troy

Wicker’s death and paid Arthur from this sum.

      Judy Wicker testified for the prosecution at Arthur’s trial. Her testimony

recounted the facts described above. Other evidence showed that Arthur had the

opportunity and means to kill Troy Wicker. And, evidence—including Arthur’s

possession of a large amount of cash after the murder—substantiated Judy

Wicker’s testimony that she hired Arthur to kill her husband. Other evidence also

substantiated Judy Wicker’s testimony, including her actions on the day of the

murder, Arthur’s “afro” wig and dark makeup disguise, and Arthur’s efforts to

dispose of the murder weapon. Expert witnesses testified that the cartridge casings

and bullets at the murder scene were consistent with the type of ammunition that

Green obtained for Arthur the day before Arthur murdered Troy Wicker.

C.    First Wicker Murder Conviction (1982-1985)
      In three separate state jury trials, Arthur was convicted and sentenced to

death for the capital murder of Troy Wicker.


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      In 1985, the Supreme Court of Alabama reversed Arthur’s first murder

conviction and death sentence. Ex parte Arthur, 472 So. 2d at 669 (holding that

details of Arthur’s 1977 murder of West were improperly admitted for

identification purposes).

D.    Second Wicker Murder Conviction (1985-1991)
      In 1990, the Alabama Court of Criminal Appeals reversed Arthur’s second

murder conviction and death sentence. Arthur v. State, 575 So. 2d 1165 (Ala.

Crim. App. 1990) (holding that the trial court improperly admitted a statement that

Arthur made to a police officer in the absence of counsel).

E.    Third Wicker Murder Conviction (1991)
      On June 6, 1991—after the reversal of Arthur’s second conviction and

sentence—the trial court appointed Harold Walden and William Del Grosso as

counsel for Arthur’s third trial. The trial court scheduled Arthur’s third trial for

December 1991.

      Immediately before his third trial, Arthur advised the trial court that he was

concerned about his appointed counsel, Del Grosso. Although Walden and Del

Grosso visited Arthur several times at the prison, Arthur claimed that they had not

responded to his many letters and phone calls.

      After two complete trials and successful appeals and because of his concerns

regarding Del Grosso, Arthur requested leave to participate as co-counsel during
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his third trial. The trial court permitted Arthur to act as “co-counsel” with his

appointed attorney, Harold Walden, and appointed Joseph Walden as additional

co-counsel. The trial court assigned Del Grosso to serve as “stand-by counsel.”

      During his third trial, Arthur—in consultation with his court-appointed co-

counsel Harold Walden and Joseph Walden—actively conducted much of the voir

dire, examinations, and arguments. Arthur cross-examined all of the prosecution

witnesses and presented four defense witnesses. Arthur did not testify. Arthur’s

appointed counsel also actively participated in examining witnesses, delivering

opening and closing statements, and making objections.

      In December 1991, for a third time, Arthur was convicted for Troy Wicker’s

murder.

F.    Third Death Sentence (1991-1992)
      During the sentencing phase of Arthur’s third trial, Arthur asked the trial

court to allow him to personally argue for a capital sentence. Arthur gave multiple

reasons for why he wanted to request a capital sentence. Arthur believed that, with

a capital sentence, he would receive better prison accommodations, more access to

the law library, more time to devote to his appeal, a more extensive appeals

process, and—based on his prior experience with the capital appellate process—an




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increased chance for a third reversal. Arthur also believed that, if he received a

capital sentence, the sentence would not actually be carried out.

      The state trial court cautioned Arthur against this course of action but,

ultimately, allowed Arthur to proceed. However, the trial court refused to exclude

mitigating evidence from the sentencing phase of Arthur’s trial. To that end, the

trial court allowed Arthur’s court-appointed counsel to argue against a capital

sentence. Arthur’s counsel argued for mitigation based on (1) Arthur’s good

conduct while in prison, (2) Arthur’s participation in a program to deter crimes by

speaking at high schools, and (3) the disproportionate punishment Arthur faced as

compared to the other persons involved in Wicker’s murder.

      After his counsel argued against a capital sentence, Arthur personally

addressed the jury and asked that he be sentenced to death. Arthur clarified that he

did not have a “death wish” and did not believe that he would be executed. In

support of his request for a death sentence, Arthur explained that his two prior

murder convictions and death sentences for Wicker’s murder were reversed on

appeal. Arthur claimed that a death sentence would give him more time to spend

with his children during their prison visits, provide him with a more private cell,

and afford him more control over his appeal.




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       The jury returned an advisory verdict of death. The trial court found that the

aggravating factor (i.e., Arthur’s 1977 conviction for West’s murder) outweighed

the mitigating factor (i.e., the culpability of Arthur’s un-prosecuted accomplices in

Wicker’s murder).

       On January 24, 1992, the trial court sentenced Arthur to death. Arthur’s trial

counsel orally noticed Arthur’s appeal.

G.     Post-Trial Motions (1992)
       Although Arthur initially filed an oral pro se motion for a new trial raising

ineffective-trial-counsel claims, Arthur and his new appellate counsel ultimately

decided not to pursue those claims and proceeded to direct appeal. 3 Arthur’s trial

counsel, Harold Walden, also timely filed a motion for a new trial. 4

       At Arthur’s request, Arthur’s court-appointed trial counsel Harold Walden

and Joseph Walden filed a motion to withdraw, which the trial court granted. The

trial court appointed Michael Sanderson to represent Arthur on direct appeal. The


       3
        Under Alabama law, “[a] motion for a new trial must be filed no later than thirty (30)
days after [the] sentence is pronounced.” Ala. R. Crim. P. 24.1(b). The trial court may grant a
new trial if “the verdict is contrary to law or to the weight of the evidence” or there is any other
reason that “the defendant has not received a fair and impartial trial.” Ala. R. Crim. P. 24.1(c).
       4
        Unlike Arthur’s pro se motion, Walden’s initial motion did not assert ineffective trial
counsel as a basis for the new trial. Instead, the counseled motion alleged that (1) the verdict
was contrary to the law, the evidence presented, and the weight of the evidence and (2) the trial
court admitted illegal evidence. The counseled motion stated, however, that Arthur would add
other grounds when the trial transcript was available.


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trial court scheduled a hearing on the pending motion for a new trial for March 6

and then rescheduled the hearing for May 1992.

      Arthur’s court-appointed counsel Sanderson then filed a motion for an

extension of time to file a motion for a new trial and indicated that ineffective

assistance of trial counsel would be one of the bases for the motion. On April 3,

1992, the trial court granted that motion and scheduled a June 12 motions hearing.

      Also on April 3, 1992, Arthur, with the assistance of counsel Sanderson,

moved to withdraw Arthur’s motion for a new trial. That motion stated: “The

Defendant, after conferring with counsel, wishes to withdraw his Motion for a New

Trial and direct his attention to the appeal process.” The counseled motion stated

that Arthur did not intend to present any evidence in support of his motion for a

new trial at the May hearing.

      On April 16, 1992, Kevin Doyle, of the Alabama Capital Representation

Resource Center, and Barry Fisher, of the Southern Center for Human Rights,

joined Sanderson as Arthur’s counsel.

      On May 11, 1992, Arthur, with the assistance of Doyle and Fisher, moved to

proceed to appellate review rather than pursue his attempts to receive a new trial.

In his counseled motion to the trial court, Arthur stated that his “counsel believes

that [Arthur] has meritorious appellate claims[] and that such additional new trial


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litigation would disadvantage Mr. Arthur by significantly delaying appellate

review of his case and the relief from his conviction and death sentence that he

expects to obtain.” One week later, on May 18, 1992, the trial court granted

Arthur’s counseled motion to proceed to appellate review. 5

H.     Direct Appeal to the Alabama Court of Criminal Appeals (1992-1996)
       Arthur, through his new appellate counsel Doyle and Fisher, appealed his

Wicker murder conviction and death sentence. Arthur’s direct appeal included 145

pages of appellant briefing covering more than 40 claims of error, including these

ineffective-trial-counsel claims: (1) the trial court erred in allowing Arthur to act

as co-counsel; (2) the statutory fee limit for appointed counsel deprived Arthur of

his right to effective counsel; (3) the denial of Arthur’s request for funds to

investigate possible mitigation evidence deprived Arthur of his right to effective

counsel; and (4) the trial court erred in allowing Arthur, acting as co-counsel, to




       5
         The trial court noted that, in granting Arthur’s request to proceed to appellate review, it
was also, consistent with Arthur’s request, vacating its April 3 order tolling the running of time
for Arthur to file a new motion for a new trial that included ineffective-trial-counsel claims.
[The trial court observed that, as of May 18, 1992, Arthur had received approximately 1,000
pages of the trial transcript and that the entire transcript would be officially filed by May 29,
1992. In light of Arthur’s new counsel, the trial court relieved Sanderson from his duty to
represent Arthur.


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ask the jury for a death sentence without ensuring that Arthur’s decision was

knowing and voluntary. 6

       Arthur, through his appellate counsel, did not raise any other ineffective-

trial-counsel claims (1) even though they could have been raised under Alabama

law and (2) even though Arthur’s post-trial motions—first submitted pro se and

then counseled—suggested that he would raise such claims during his post-trial

proceedings.

       In May 1995, Fisher withdrew as Arthur’s co-counsel. Doyle, of the

Alabama Capital Representation Resource Center, remained as court-appointed

counsel for Arthur’s direct appeal.

       In March 1996, the Alabama Court of Criminal Appeals issued a lengthy and

thorough opinion affirming Arthur’s third murder conviction and death sentence.

Arthur v. State, 711 So. 2d 1031, 1042-97 (Ala. Crim. App. 1996), aff’d sub nom.

Ex parte Arthur, 711 So. 2d 1097 (Ala. 1997).

       Importantly, the appellate court concluded that (1) Arthur “knowingly and

voluntarily requested to act as co-counsel and very ably represented himself,”

       6
          The counseled direct appeal raised many other claims of error that were not raised at
trial, such as (1) erroneous admission of certain evidence for lack of foundation or because it was
otherwise inadmissible or prejudicial and (2) prosecutorial misconduct for making certain
arguments to the jury. However, Arthur did not allege that his trial counsel’s ineffectiveness
(i.e., such as by failing to object to or stipulating to the evidence) led to or contributed to the
claims that he raised on direct appeal.


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(2) “[t]here was no error by the trial court in allowing him to do so,” and (3) the

trial court did not err in allowing Arthur to argue in favor of the death penalty. Id.

at 1046, 1088 (emphasis added). The appellate court stated that Arthur’s “decision

to argue in favor of the death penalty was a well thought-out and well reasoned

tactical decision based on his vast experience with the criminal justice system.” Id.

at 1088. After reviewing the trial transcript colloquy between Arthur, his counsel,

and the trial judge, the appellate court concluded:

               [Arthur] clearly indicated that, based on his experience,
               he was making a knowing and intelligent trial strategy
               decision to seek the death penalty, and he gave
               reasonable grounds for this decision: his ultimate goal
               was avoiding the death penalty. In fact, [Arthur] argued
               for the death penalty in his previous trials, and his
               strategy proved effective—both earlier convictions were
               ultimately reversed.

Id. at 1090.

      The appellate court also held that the trial court did not err in denying

Arthur’s request for funds to investigate mitigation evidence because (1) Arthur

“stated at trial that he did not wish to present any mitigating evidence during the

penalty phase and that he was in favor of the imposition of the death penalty, in

view of his experience with the criminal justice system and his ability to appeal his

conviction,” (2) Arthur “argued for the death penalty in light of the heightened

scrutiny given in such cases,” and (3) Arthur “made no showing at trial that the

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assistance of an expert social worker was necessary for an adequate defense or that

he had a particularized need for such assistance.” Id. at 1071. The appellate court

also held that Arthur’s claim involving the statutory fee limit was “without merit.”

Id. at 1072.

      Ultimately, the Alabama Court of Appeals found that Arthur “received a fair

trial” and affirmed his conviction and sentence. Id. at 1097. After the appeal,

Doyle withdrew as Arthur’s counsel.

I.    Appeal to the Supreme Court of Alabama (1996-1997)
      John Rall, of Boehl, Stopher & Graves in Kentucky, undertook Arthur’s

appeal to the Supreme Court of Alabama. Rall withdrew in April 1997. Two

weeks later, the court appointed Lajuana Davis to continue with Arthur’s appeal.

      In his counseled appeal to the Supreme Court of Alabama, Arthur again

raised more than 40 claims. In November 1997, the Supreme Court of Alabama

affirmed Arthur’s third—and current—capital murder conviction and death

sentence. Ex parte Arthur, 711 So. 2d 1097 (Ala. 1997). The Supreme Court of

Alabama summarily affirmed the appellate court’s opinion on all but two issues:

“(1) whether Arthur’s acting as his own co-counsel required a formal colloquy

between Arthur and the trial court and an express waiver of his right to full




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representation by counsel; and (2) whether Arthur’s request for capital punishment

was made knowingly and voluntarily.” Id. at 1099.

      The Supreme Court of Alabama determined that Arthur’s decision to act as

co-counsel at his third trial was knowing and voluntary:

             Arthur’s competency and understanding with respect to
             his decision to act as co-counsel was shown by his
             experience in the trial and appellate process. This was
             Arthur’s fourth murder trial, his third for the murder of
             Troy Wicker. Arthur had been heavily involved in the
             appeals from his first two convictions for Troy Wicker’s
             murder. He had read both records from the previous
             trials and had an acute understanding of what he was
             doing. Accordingly, we conclude that Arthur knowingly
             and intelligently requested to act as his own co-counsel
             and that in doing so he implicitly waived full
             representation of counsel.

Id. (footnote omitted).

      The Supreme Court of Alabama also concluded that the trial court did not err

in allowing Arthur to request a death sentence because Arthur had calculated and

intentional reasons for his request and because he made the decision knowingly,

intelligently, and voluntarily:

             Arthur told the jury that if he received a capital sentence,
             he would get an automatic appeal, that review of the
             appeal was faster, and that his appeal would be given
             heightened scrutiny. Arthur also acknowledged that as a
             prisoner with a capital sentence, he would receive better
             accommodations and more access to the prison’s law
             library.

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             Arthur’s decision to argue in favor of capital punishment
             was made knowingly, intelligently, and voluntarily.
             Prior to trial, Arthur wrote a letter to the trial court
             stating that if found guilty he would ask for capital
             punishment. Arthur explained to the trial court that he
             did not have a death wish, but that he would receive
             numerous practical and procedural advantages if he
             received a capital sentence. The trial court ensured that
             Arthur discussed this decision with his co-counsel, who
             tried to discourage him from such a course. Arthur’s
             decision was based on his previous experience in
             obtaining reversals of his two earlier convictions and on
             his experience in prison. Arthur has, in fact, received
             better treatment in prison. He has had liberal access to
             the law library. He has received an extra, automatic,
             review by this Court. . . .

             Arthur’s tactic clearly shows that he was well informed
             on the state of the capital punishment system, and we
             hold that his decision to request capital punishment was a
             voluntary one.

Id. at 1100 (footnote omitted).

      On March 20, 1998, the Supreme Court of Alabama denied Arthur’s

counseled motion for reconsideration. Attorney Davis represented Arthur in that

filing. Arthur was undisputedly represented by counsel through the March 20,

1998, conclusion of his direct appeal in the Supreme Court of Alabama.

      On April 7, 1998, the Alabama Court of Criminal Appeals issued a

certificate of judgment for Arthur’s third conviction and sentence. Arthur claims




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that he never received a copy of this certificate of judgment, and he asserts that he

was not represented by counsel when the certificate issued.

J.     Petition for Certiorari to the U.S. Supreme Court (1998)
       After the Supreme Court of Alabama denied Arthur’s counseled motion on

March 20, 1998, Arthur had 90 days to seek a writ of certiorari from the U.S.

Supreme Court. See Sup. Ct. R. 13. Arthur did not petition the U.S. Supreme

Court for a writ of certiorari. Therefore, Arthur’s state capital conviction became

final on June 18, 1998, when the 90-day time period expired.

       On June 8, 1998, Arthur sent the U.S. Supreme Court a pro se letter, which

requested that the U.S. Supreme Court extend the 90-day time period for him to

file a petition for a writ of certiorari. In that letter, Arthur advised that the

Supreme Court of Alabama issued its final ruling on March 20, 1998:

              I’ve been told that I had (90) ninty [sic] days to file some
              sort of document in the United States Supreme Court
              when the state supreme court issued a final ruling on the
              first level of state appeals.

              That transpired March 20th 1998.

              I was informed of the above filing to the United States
              Supreme Court a short while back and set about trying to
              get exact-correct mailing address to the United States
              Supreme Court – I received this address June 2nd 1998 at
              9pm[.]

              I had already used my two (2) only per week mailing
              allowances so I had to wait to mail this to you now.
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             I do not have an attorney but I’m trying desperately to get
             one using every mailing allowance writing every address
             I can get my hands on.

             Point of this communication

             To humbly request the United States Supreme Court to
             please give me an extension of the 90 ninty [sic] day time
             limit to file the document for 6 six months or a year in
             order for me to acquire the representation of an attorney
             and [for] the attorney [to] have time to familiarize
             themselves [sic] with my very complex and complicated
             case to be able to competently file the documents to the
             court.

             If the United States Supreme Court does not want to do
             this, will the court please grant me personally at least
             (30) thirty days extension in order for me to try as best I
             can to prepare something myself to submit?

             Respectfully Thomas D. Arthur

      On June 19, 1998, in response to Arthur’s letter, the Clerk of the U.S.

Supreme Court sent Arthur a notice of deficiency. The Clerk’s notice informed

Arthur that he needed to include a copy of the lower court opinion with his request

for an extension of time and that he needed to serve a copy of his request on

opposing counsel. The Clerk also notified Arthur that the maximum allowable

extension was 60 days. Arthur did not respond to the Clerk’s notice of deficiency

or file anything further in the U.S. Supreme Court in 1998.

      As discussed later, Arthur’s state conviction became final on June 18, 1998.

Therefore, absent any statutory or equitable tolling, the one-year time period for
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Arthur to file his federal § 2254 petition expired on June 18, 1999. As discussed

later, Arthur did not file a § 2254 petition until January 25, 2001.

K.     Two-Year Period from April 1998 to October 2000
       Under Alabama law, Arthur had two years—or until April 7, 2000—to file a

state post-conviction petition under Alabama Rule of Criminal Procedure 32

(“Rule 32”). 7

       It is undisputed that Arthur never filed a motion asking the state courts to

appoint him counsel for his Rule 32 proceedings. Arthur did not want court-

appointed counsel because he believed that such counsel would not get paid

enough to care about his case. Arthur also did not file a pro se Rule 32 petition for

post-conviction relief, which also would have triggered Alabama’s procedural

mechanism to appoint counsel. Instead of asking the Alabama courts for counsel,

Arthur undertook a personal and lengthy quest to find pro bono counsel. 8




       7
        Alabama’s two-year limitations period ran from the date that Arthur’s certificate of
judgment issued. Because the Alabama Court of Criminal Appeals issued a certificate of
judgment for Arthur’s third conviction and sentence on April 7, 1998, Arthur had until April 7,
2000 to bring his Rule 32 petition.
       8
         Alabama does not automatically appoint post-conviction counsel to death row inmates.
See Ala. R. Crim. P. 32.7(c) (stating circumstances where court must appoint counsel).
However, Alabama does “provide[] for the appointment of counsel for a petitioner seeking
postconviction relief.” Arthur v. Allen, 452 F.3d 1234, 1250 (11th Cir. 2006). Specifically,
“[a]n indigent petitioner, who desires the assistance of counsel, may seek appointment of counsel
if the petitioner’s postconviction relief petition is not summarily dismissed.” Id. (citing Ala. R.


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       Beginning in June 1997 and continuing through the fall of 2000, Arthur

sought post-conviction counsel by writing letters to organizations and individual

attorneys and by posting advertisements on the Internet. In his letters and Internet

postings, Arthur specifically asked that the case not be referred to either the

Southern Center for Human Rights in Atlanta or the Equal Justice Initiative of

Alabama. Arthur noted that his past experiences with these organizations were

“unpleasant and non-productive,” that the organizations did “not have the proper

funding or staff to handle” their cases, and that “Alabama’s court-appointed

attorneys don’t get paid enough to care.”

       The problem for Arthur is that, while he continued his independent quest for

counsel, he did not file a pro se state Rule 32 petition, a federal § 2254 petition, or

even a request for counsel in any state or federal courts. See Arthur, 452 F.3d at

1253. The record shows—and this Court has already concluded—that Arthur was

aware of the deadline to file his state Rule 32 and federal § 2254 petitions. Id. at

1250-51, 1253. The June 18, 1999, deadline for filing his § 2254 petition came

and expired.




Crim. P. 32.7(c)). After receiving such counsel, the petitioner can amend his petition at any
time. See Ala. R. Crim. P. 32.7(b).


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L.     First Rule 32 Petition (2001-2002)
       After two and one half years of inactivity by Arthur, in September 2000, the

state moved the Supreme Court of Alabama to set an execution date. In mid- to

late-October 2000, Arnold Levine, of The Legal Aid Society in New York, agreed

to represent Arthur in his state and federal post-conviction proceedings. On

January 25, 2001 with Levine’s assistance, Arthur filed (1) his Rule 32 petition and

(2) a motion to file his Rule 32 petition out-of-time.

       Arthur’s Rule 32 petition (1) alleged constitutional violations and defects in

Arthur’s third trial and (2) re-raised the argument—from Arthur’s direct appeal—

that his trial counsel was ineffective in failing to object to Arthur acting as co-

counsel. The Rule 32 petition also alleged generally that Arthur’s trial counsel

“were legally ineffective at all stages of the criminal proceedings” and “did not

render reasonably effective assistance of counsel before, during, or after his [third]

capital murder trial and conviction.” 9




       9
         Specific allegations of the trial counsel’s ineffective assistance included “failing to move
to dismiss the indictment based on the District Attorney’s conflict [of interest], moving to permit
Mr. Arthur to act as co-counsel,” failing “to adequately investigate the case,” failing to move for
a continuance when Joseph Walden was appointed as co-counsel on the day of trial, failing “to
adequately challenge the state’s investigation of the case,” failing to obtain necessary expert
assistance, failing “to obtain necessary and proper rulings from the trial court through motions
and argument,” failing to prevent prosecutorial misconduct, and introducing highly prejudicial
evidence.


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      Arthur’s Rule 32 petition also alleged that his appellate counsel provided

ineffective assistance on direct appeal by failing to (1) raise the issue of the

prosecutor’s conflict of interest and (2) contact the jurors from the third trial.

      In March 2001, the state trial court dismissed Arthur’s Rule 32 petition as

untimely because it was not filed until January 25, 2001, which was well after

Alabama’s two-year statute of limitations ran on April 7, 2000. The trial court

found that every claim contained in Arthur’s Rule 32 petition was precluded by

Rule 32’s two-year statute of limitations. Thus, the trial court found that Alabama

law precluded it from reviewing the merits of Arthur’s untimely claims.

      Arthur, with the assistance of attorney Levine, appealed to the Alabama

Court of Criminal Appeals, which affirmed the dismissal based on the time bar.

Arthur v. State, 820 So. 2d 886, 889-90 (Ala. Crim. App. 2001). The appellate

court found that Arthur filed his Rule 32 petition after the limitations period

expired, and, thus, Alabama law did not permit equitable tolling. Id.

Alternatively, the appellate court concluded that equitable tolling was

inappropriate in Arthur’s case. Id. at 890.

      The Alabama Court of Criminal Appeals also noted that Arthur’s claim that

his trial counsel was ineffective for failing to object to Arthur serving as co-




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counsel “was thoroughly addressed by [the Alabama Court of Criminal Appeals]

on Arthur’s direct appeal.” Id. at 887.

       In November 2001, the Supreme Court of Alabama denied Arthur’s

counseled petition for a writ of certiorari. In 2002, the U.S. Supreme Court denied

Arthur’s counseled petition for a writ of certiorari. Arthur v. Alabama, 535 U.S.

1053, 122 S. Ct. 1909 (2002). Attorney Levine represented Arthur in both

proceedings.

M.     Federal § 2254 Petition in District Court (2001-2002)
       After Arthur’s Rule 32 petition was dismissed and while Arthur was

appealing that dismissal in the state appellate courts, Arthur filed a federal § 2254

petition with the assistance of counsel Levine on April 20, 2001—seven days

before his scheduled execution. On April 25, 2001, the federal district court stayed

Arthur’s execution and his § 2254 proceedings pending exhaustion of state

remedies.

       In his § 2254 petition, Arthur alleged, inter alia, (1) numerous claims of

ineffective assistance of trial and appellate counsel and (2) trial court error in

allowing Arthur to act as “co-counsel” at trial and to request the death penalty. 10



       10
         Among other claims, Arthur’s § 2254 petition alleged that the trial court erred by failing
to determine Arthur’s competence to stand trial; failing to grant Arthur a continuance for an


                                                23
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       In September 2002, attorneys Suhana Han and Theresa Trzaskoma, both

from Sullivan & Cromwell in New York, joined Levine as Arthur’s § 2254

counsel.

       Absent any tolling, Arthur undisputedly filed his § 2254 petition after the

federal one-year limitations period expired. See 28 U.S.C. § 2244(d). Arthur’s

murder conviction became final on June 18, 1998, and, thus, the one-year period

expired on June 18, 1999. See id. § 2244(d)(1)(A). Arthur, however, maintained

that this one-year limitations period did not bar his § 2254 petition because he was

actually innocent of the murder and/or entitled to statutory or equitable tolling of

that period.

N.     District Court’s Dismissal of the Federal § 2254 Petition (2002)
       In 2002, the district court dismissed Arthur’s § 2254 petition as untimely

because it was not filed until April 20, 2001, which was one year, ten months, and

two days after the one-year limitations period expired on June 18, 1999. The




investigation and for his attorney to prepare an adequate defense; admitting inadmissible
evidence, hearsay, and the testimony of a perjured witness during the guilt phase; improperly
removing several prospective jurors; failing to sequester the selected jurors; failing to require the
state to comply with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and failing to
provide Arthur with the basic tools to present a defense. Arthur also argued that his third trial
and sentencing were constitutionally defective because the prosecutor had an irreconcilable
conflict of interest.


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district court found (1) “no lawful ground to excuse the untimeliness of the

petition,” (2) Arthur did not make a showing of actual innocence, and (3) Arthur

did not demonstrate any basis for statutory or equitable tolling.

      As to actual innocence, the district court found that Arthur had not made a

showing of “actual innocence” sufficient to establish a “miscarriage of justice” and

avoid AEDPA’s time bar. The district court specifically noted that substantial

evidence supported Arthur’s murder conviction. The district court described that

evidence as, inter alia, (1) Arthur’s opportunity and means to kill Troy Wicker;

(2) Arthur’s possession of a large amount of cash after the murder; (3) the many

witnesses and circumstances that substantiated Judy Wicker’s testimony that she

hired Arthur to kill her husband; (4) witnesses to Arthur’s “afro” wig and dark

makeup disguise; (5) witnesses to Arthur’s efforts to dispose of the murder

weapon; and (6) the fact that the cartridge casings and bullets were consistent with

the type of ammunition that Arthur obtained the day before he murdered Troy

Wicker.

      Arthur supported his claim of actual innocence with affidavits of two men

who provided alibis regarding Arthur’s whereabouts on the morning of Troy

Wicker’s murder. The district court found that, for many reasons, including the

fact that the affiants later disavowed their alibi statements, the affidavits that


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Arthur asked the district court to use in determining the likelihood of his actual

innocence were “not sufficiently reliable to cast doubt on the jury’s verdict.”

Ultimately, the district court concluded: “In view of the significant evidence of

guilt presented at Arthur’s trial, [it was not probable that constitutional error]

resulted in the conviction of one who was actually innocent.”

      As to statutory tolling, the district court concluded that Arthur failed to

properly file an application for state collateral review and, thus, no state collateral

proceeding tolled the running of the one-year period. See 28 U.S.C. § 2244(d)(2)

(permitting tolling for “[t]he time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending”). Arthur asserted that he was entitled to such tolling

because—by failing to provide Arthur with state-court appointed post-conviction

counsel automatically—Alabama created an unconstitutional impediment to the

timely filing of his § 2254 petition. However, the district court determined that

Arthur presented no evidence “that he, or any other Alabama death row prisoner

who sought post-conviction counsel from the [s]tate,” was denied such counsel.

The district court concluded that Arthur failed to “avail himself of the Alabama

procedures for obtaining post-conviction counsel.”




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      The district court also explained that—notwithstanding the state’s

procedures for providing post-conviction counsel—the federal judicial system had

its own procedures for obtaining federal post-conviction counsel for § 2254 cases.

Arthur never requested federal habeas counsel and failed to engage that federal

procedural mechanism, too.

      Because both the state and federal judicial systems provided methods for

obtaining post-conviction counsel that Arthur wholly failed to engage, the district

court concluded that neither the state nor the federal judicial systems caused

Arthur’s lack of post-conviction counsel during the one-year limitations period

from June 18, 1998 to June 18, 1999. Consequently, Arthur was not entitled to

statutory tolling for lack of post-conviction counsel because “the [s]tate did not

place any unconstitutional impediment to Arthur’s filing of his federal [§ 2254]

habeas petition sufficient to statutorily toll the AEDPA limitations period.”

      As to equitable tolling, the district court found that Arthur’s limitations

period was not equitably tolled because (1) Arthur failed to ascertain the status of

his case; (2) Arthur did not pursue his federal claims with diligence; and (3) no

extraordinary circumstances beyond Arthur’s control prevented him from filing his

§ 2254 petition in a timely manner. The district court found that Arthur was aware

that, on March 20, 1998, the Supreme Court of Alabama issued a final ruling in


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Arthur’s direct appeal but Arthur did not file his § 2254 petition until April 20,

2001.

        Because Arthur did not demonstrate his actual innocence and was not

entitled to statutory or equitable tolling, the district court dismissed Arthur’s

§ 2254 petition as untimely.

O.      Rule 59 Motion in the District Court (2002-2003)
        With the assistance of attorneys Levine, Han, and Trzaskoma, Arthur then

filed a counseled motion, pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure (“Rule 59 motion”), to alter or amend the district court’s dismissal of his

§ 2254 petition. That motion asserted that the district court erred in not allowing

discovery on the questions of actual innocence and equitable and statutory tolling

of AEDPA’s limitations period.

        In 2003, the district court denied Arthur’s Rule 59 motion. The district court

concluded that Arthur was not entitled to discovery or an evidentiary hearing

because he had not satisfied the requirements of 28 U.S.C. § 2254(e)(2) or Rule

6(a) of the Rules Governing § 2254 Cases. Specifically, the district court found

that § 2254(e)(2) precluded discovery and an evidentiary hearing because Arthur

(1) failed to develop a factual basis for his actual innocence claim in state court and

(2) did not show diligent efforts to discover the factual basis for such a claim. The


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district court concluded that Arthur failed to satisfy Rule 6’s requirements because

he did not make specific allegations showing a reason to believe that the fully

developed facts might entitle Arthur to habeas relief. The district court also

emphasized that none of Arthur’s requested evidence was new, as each piece of

evidence was presented at trial.

P.     Appeal to this Court (2003-2006)
       With the assistance of attorneys Levine, Han, and Trzaskoma, Arthur

appealed the dismissal of his § 2254 petition. After reviewing the record and briefs

and hearing oral argument, this Court affirmed the dismissal of Arthur’s § 2254

petition and the denial of his Rule 59 motion. See Arthur v. Allen, 452 F.3d 1234.

       Because the parties agreed that, absent tolling, Arthur’s § 2254 petition was

untimely, this Court focused on whether statutory or equitable tolling applied. We

concluded that AEDPA’s limitations period was not tolled statutorily because, inter

alia, (1) “Alabama provide[d] for the appointment of counsel for a petitioner

seeking postconviction relief” 11 and (2) “an indigent federal habeas corpus

petitioner, seeking relief from a judgment punishable by death, has a mandatory




       11
          Arthur, 452 F.3d at 1250 (citing Rule 32.7(c) for the proposition that “[a]n indigent
petitioner, who desires the assistance of counsel, may seek appointment of counsel if the
petitioner’s postconviction relief petition is not summarily dismissed”).


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statutory right to appointed counsel from the district court upon filing a motion

requesting such appointment.” Id. at 1250 (emphasis added).

      In concluding that no statutory tolling applied under the facts of Arthur’s

case, this Court stressed that Arthur failed even to “seek appointment of counsel

under Alabama Rule of Criminal Procedure 32.7(c) or 28 U.S.C. § 2254(h)” and

failed to provide any reason for not filing a pro se Rule 32 or § 2254 petition while

he sought pro bono counsel. Id. We noted that Arthur spent his time seeking pro

bono counsel that met his particular requirements instead of filing a pro se Rule 32

or § 2254 petition. Id. at 1250-51. We concluded: “Arthur was aware of time

limits for filing his petition and the consequences for missing those times.” Id. at

1251. We held that the district court did not clearly err “in finding that Arthur

failed to avail himself of the Alabama procedures for obtaining postconviction

counsel . . . or abuse[] its discretion in denying Arthur statutory tolling relief.” Id.

We reached the same conclusion with respect to Arthur’s failure to avail himself of

the federal procedures for obtaining post-conviction counsel. Id. at 1250.

      This Court also concluded that Arthur was not entitled to equitable tolling

because he failed to act diligently with respect to the filing of his § 2254 petition.

We reasoned that the record did not reflect any “specific actions” that “Arthur took

to timely file a petition for postconviction relief, to seek counsel through either the


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state or federal avenues available to him, to obtain the information regarding the

limitations period (or the options for seeking counsel through the state or federal

systems) from the prison library or to gain the assistance of others, outside of

prison, who had the ability to obtain the information for him.” Id. at 1253. Given

the lack of evidence of diligence, Arthur was not entitled to equitable relief. Id.

       This Court emphasized that Arthur was aware that the Supreme Court of

Alabama issued a final ruling in his direct appeal on March 20, 1998 (by the time

that he wrote to the United States Supreme Court on June 2, 1998), and he

“believed that he had until 20 June 1998 to file his petition for writ of certiorari.”

Id. at 1252. Because “Arthur was aware of the deadline to file his habeas petition”

and because “he neither timely filed a pro se petition for postconviction relief nor

filed a motion seeking the appointment of counsel,” this Court concluded that the

record did not indicate (1) that Arthur engaged in diligent efforts to learn the status

of his case or (2) that the actions of others prevented Arthur from timely filing his

§ 2254 petition. Id. at 1253. We, thus, held that the “district court did not clearly

err in finding that Arthur was not entitled to equitable relief.” 12 Id.



       12
          This Court also rejected Arthur’s actual-innocence claim because his evidence was
insufficient to make a threshold showing of Arthur’s actual innocence and “in no way
undermine[d] confidence in the result of his trial.” See Arthur, 452 F.3d at 1245-46. We also
held that the district court did not abuse its discretion in denying Arthur’s requests for discovery


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       Because Arthur failed to show “that he ha[d] any legal grounds excusing the

untimeliness of his [§ 2254] habeas petition,” this Court affirmed the district

court’s dismissal of his § 2254 petition as untimely. Id. at 1253-54.

Q.     Petition for Certiorari to the U.S. Supreme Court (2007)
       In January 2007, Arthur petitioned the U.S. Supreme Court for a writ of

certiorari. Attorneys Levine, Han, Trzaskoma, Jordan Razza (also of Sullivan &

Cromwell), and others represented Arthur in this filing.13 The Supreme Court

denied Arthur’s petition. Arthur v. Allen, 549 U.S. 1338, 127 S. Ct. 2033 (2007).

R.     Setting and Re-setting Execution Dates (2007-2008)
       The State moved the Supreme Court of Alabama to set a new execution date

because Arthur’s state and federal appeals had concluded. In June 2007, the




and an evidentiary hearing. Id. at 1253. We later modified our opinion slightly by adding
language to our discussion of Arthur’s lack of any entitlement to a hearing and discovery. See
Arthur v. Allen, 459 F.3d 1310, 1310-11 (11th Cir. 2006).
       13
          In his counseled petition for a writ of certiorari, Arthur raised these issues: (1) whether
the courts erred in denying Arthur an opportunity to develop his claim of actual innocence by
denying Arthur’s request for discovery and a hearing; (2) whether AEDPA’s limitations period
should have been statutorily tolled because his post-conviction claims had never been heard on
the merits and Alabama did not provide Arthur with legal assistance or counsel to help prepare
his post-conviction petitions; and (3) whether, a “different equitable tolling standard should
apply” to AEDPA’s limitations period for those death penalty cases where the petitioner never
“received any collateral review of his conviction and death sentence” and where the petitioner
“diligently pursued his rights.”


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Supreme Court of Alabama set Arthur’s execution date for September 27, 2007.

See Ex parte Arthur, 13 So. 3d 49 (Ala. 2007) (table op.).

        On September 26, 2007, the day before Arthur’s scheduled execution,

Alabama’s governor granted Arthur a 45-day reprieve to allow the Alabama

Department of Corrections time to institute a revision to its lethal injection

protocol. In October 2007, the Supreme Court of Alabama set Arthur’s execution

date for December 6, 2007. See Ex parte Arthur, 25 So. 3d 1203 (Ala. 2007) (table

op.).

        On December 5, 2007, the day before Arthur’s scheduled execution, the U.S.

Supreme Court stayed Arthur’s execution pending that court’s ruling on a

challenge to Kentucky’s method-of-execution protocol in Baze v. Rees, 553 U.S.

35, 128 S. Ct. 1520 (2008). On June 30, 2008, following the U.S. Supreme Court’s

decision in Baze, the Supreme Court of Alabama set Arthur’s execution date for

July 31, 2008. See Ex parte Arthur, 31 So.3d 171 (Ala. 2008) (table op.).

S.      Second Rule 32 Petition (2008-2009)
        On July 29, 2008, two days before his scheduled execution, Arthur filed an

“Emergency Successive Petition for Relief from Conviction Pursuant to Rule 32 of

the Alabama Rules of Criminal Procedure” and an “Emergency Motion for Stay of

Execution and Access to DNA Evidence Based on Newly Discovered Facts That


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Completely Exonerate Thomas D. Arthur” (collectively “Second Rule 32

petition”). Attorneys Han, Razza, Qian Gao, and Sultana Bennett represented

Arthur in these filings.

       On July 30, 2008, the Supreme Court of Alabama stayed Arthur’s execution

to allow the state trial court time to consider Arthur’s Second Rule 32 petition,

which again asserted that he was actually innocent of murdering Troy Wicker.

Arthur proffered this newly discovered evidence: the confession of his fellow

inmate, Bobby Ray Gilbert (who was serving a sentence of life without parole).

       The state trial court ordered DNA testing and conducted extensive

evidentiary hearings. After reviewing the testimony, evidence, and DNA test

results, the trial court found that Gilbert and Arthur had conspired to commit

perjury by submitting Gilbert’s false confession. The trial court determined that

“the overwhelming evidence and testimony presented before th[e] Court

established that Gilbert lied, that his affidavit [was] false, . . . that he had no role in

the murder of Troy Wicker[,] . . . that the evidence presented demonstrate[d] that

both Gilbert and Arthur engaged in an attempt to defraud th[e] Court by means of

the affidavit made the subject of [the] Rule 32 [motion], in which Gilbert [took]

credit for the murder of Troy Wicker.” See Arthur v. State, 71 So. 3d 733, 740-41




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(Ala. Crim. App. 2010) (quoting from state circuit court’s order) (internal

quotation marks omitted).

      The state trial court concluded, “Gilbert’s affidavit would not have changed

the result of Arthur’s trial[,] and . . . Arthur’s claims that he is actually innocent

and that his conviction and sentence of death should be vacated are utterly without

merit . . . .” See id. at 748-49. In September 2009, the state trial court entered an

order that thoroughly addressed each of Arthur’s claims and denied his Second

Rule 32 petition.

T.    Appeals of the Denial of the Second Rule 32 Petition (2009-2012)
      On April 30, 2010, the Alabama Court of Criminal Appeals affirmed the

trial court’s denial of Arthur’s Second Rule 32 petition. Id. at 755. Attorneys

Suhana Han, Jordan Razza, Andrew Brinkman, and Marc De Leeuw (all from

Sullivan & Cromwell) represented Arthur in that appeal. Two weeks later, Arthur,

with the assistance of Han and Razza, applied for rehearing, which the Alabama

Court of Criminal Appeals denied.

      In July 2010, Arthur petitioned the Supreme Court of Alabama for a writ of

certiorari. Attorneys Han, Razza, and Brinkman represented Arthur. In his

counseled petition, Arthur (1) alleged that the state “appellate court incorrectly

construed controlling provisions of the Alabama and Federal Constitutions” and


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(2) raised multiple issues.14 In April 2011, the Supreme Court of Alabama denied

Arthur’s petition.

       In July 2011, Arthur petitioned the U.S. Supreme Court for a writ of

certiorari. Attorneys Han, Razza, Gao, Brinkman, and others represented Arthur.

The Supreme Court denied Arthur’s petition. Arthur v. Alabama, 132 S. Ct. 453

(2011).

       In October 2011—more than 10 years after Arthur’s first scheduled

execution date—the state moved the Supreme Court of Alabama to set a new

execution date because his Second Rule 32 proceedings had concluded. In

February 2012, the Supreme Court of Alabama set Arthur’s execution date for

March 29, 2012. On March 23, 2012, this Court stayed Arthur’s execution “until




       14
          The issues were (1) whether Arthur’s state or federal constitutional rights were violated
by the state’s failure to disclose that Judy Wicker’s rape kit was destroyed; (2) whether Arthur’s
state or federal constitutional rights would be violated if Arthur was executed in light of the
state’s destruction of the rape kit; (3) whether Arthur’s state or federal constitutional rights were
violated by the trial court’s refusal to order a comprehensive search for the rape kit, discovery
into the circumstances of the destruction of the rape kit, or more advanced DNA testing of the
“afro” wig worn by Arthur during the murder; (4) whether Arthur’s state or federal constitutional
rights were violated by the trial court’s failure to grant Arthur relief given that his fellow inmate
confessed to the Troy Wicker murder; (5) whether Arthur’s state or federal constitutional rights
were violated by the trial court’s “arbitrary interpretation of scientific tests in a manner
inconsistent with the factual record”; and (6) whether the trial court’s dismissal of Arthur’s
Second Rule 32 petition was proper.


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further order of this Court” for various reasons relating to Arthur’s 42 U.S.C.

§ 1983 action challenging Alabama’s lethal injection protocol. 15

U.     Rule 60(b)(6) Motion (2012-present)
       On May 1, 2012, Arthur brought a counseled motion in the district court

pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure (“Rule 60(b)(6)

motion”). That motion sought relief from the district court’s December 2002 order

that dismissed Arthur’s § 2254 petition as untimely filed in 2001. 16

       In his counseled Rule 60(b)(6) motion, Arthur argued that, in light of the

U.S. Supreme Court’s decision in Martinez, the district court should reconsider its

December 2002 decision that dismissed Arthur’s § 2254 petition as untimely. To

satisfy Martinez’s direction that a prisoner show that his underlying ineffective-

trial-counsel claim is substantial, Arthur summarized several ineffective-trial-

counsel claims in his Rule 60(b)(6) motion. He argued that trial counsel failed to


       15
          From April 2007 until June 2011, Arthur filed five separate and counseled § 1983
actions in federal district court. The first four actions were dismissed for various reasons. The
fifth § 1983 action challenges Alabama’s lethal injection protocol and remains pending. See
Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (remanding the case for further factual
development); Arthur v. Thomas, __ F. Supp. 2d ___, No. 2:11-cv-0438-MEF, 2013 WL
5434694 (M.D. Ala. Sept. 30, 2013).
       16
         Attorneys Levine, Han, and Trzaskoma represented Arthur in his Rule 60(b)
proceeding. In May 2012, Jordan Razza re-joined Arthur’s team of federal counsel. In early
June 2012, Peter Steciuk, of Sullivan & Cromwell, also joined Arthur’s legal team. On June 6,
2012, Levine and Trzaskoma withdrew as Arthur’s counsel, leaving Han, Steciuk, and Razza as
counsel. In November 2013, Razza also withdrew. Arthur is now represented by Han and
Steciuk.


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(1) investigate his case properly; (2) prepare a defense properly; (3) ensure that

Arthur’s decision to represent himself was knowing and voluntary; (4) investigate

mitigation adequately; and (5) challenge the prosecutor’s conflict of interest.

      On June 20, 2012, the district court denied Arthur’s motion for several

reasons. First, the district court concluded that a change in decisional law by itself

was not the type of “extraordinary circumstance” required to trigger Rule 60(b)(6).

Second, the district court concluded that “a change in the law, combined with an

allegation of ineffective [trial] counsel” was also not an “extraordinary

circumstance” sufficient to receive relief under Rule 60(b)(6). Third, the district

court concluded that, even if a change in decisional law combined with Arthur’s

allegation that his trial counsel was ineffective constituted an “extraordinary

circumstance” under Rule 60(b)(6), the U.S. Supreme Court’s decision in Martinez

was not applicable to the facts of Arthur’s case for at least three reasons:

             (1) Unlike the petition in Martinez, Arthur’s § 2254
                 petition was not dismissed due to procedural default;
                 rather, Arthur’s § 2254 petition was dismissed due to
                 “his complete failure to file a petition, even in a pro
                 se form, within the federal limitation period along
                 with his inability to demonstrate ‘actual innocence.’”;

             (2) Unlike the petitioner in Martinez, Arthur could have
                 “obtained a review of his ineffective-assistance-of-
                 trial-counsel claims with the aid of counsel different
                 from his trial counsel in his direct appeal, as well as
                 in his first [state] collateral challenge”; and

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             (3) Unlike the procedural posture in Martinez (where no
                 final judgment had been entered), the issues in
                 Arthur’s case “have been litigated to conclusion”;
                 thus, “to reopen the judgment, [Arthur] must comply
                 with Rule 60(b) by first showing extraordinary
                 circumstances,’” which he failed to do.

This Court granted Arthur a Certificate of Appealabilty on this issue:

             In light of Martinez v. Ryan, 132 S. Ct. 1309 (2012),
             whether the district court erred in denying Arthur’s Fed.
             R. Civ. P. 60(b)(6) motion seeking relief from the district
             court’s prior judgment dismissing Arthur’s federal
             habeas petition as procedurally barred on time limitations
             grounds.

                           II. STANDARD OF REVIEW

      Arthur requests relief under Rule 60(b)(6) from the district court’s 2002

judgment dismissing his § 2254 petition as untimely. Relief from “judgment under

Rule 60(b)(6) is an extraordinary remedy.” Booker v. Singletary, 90 F.3d 440, 442

(11th Cir. 1996) (citing Ritter v. Smith, 811 F.2d 1398, 1400 (11th Cir. 1987)).

Consequently, relief under Rule 60(b)(6) requires showing “‘extraordinary

circumstances’ justifying the reopening of a final judgment.” Gonzalez v. Crosby,

545 U.S. 524, 535, 125 S. Ct. 2641, 2649 (2005) (quoting Ackermann v. United

States, 340 U.S. 193, 199, 71 S. Ct. 209, 212 (1950)). “Even then, whether to

grant the requested relief is . . . a matter for the district court’s sound discretion.”




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Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000) (quoting

Booker, 90 F.3d at 442).

      “Rule 60(b) proceedings are subject to only limited and deferential appellate

review.” Gonzalez, 545 U.S. at 535, 125 S. Ct. at 2649. We review a district

court’s denial of a Rule 60(b) motion for an abuse of discretion. Howell v. Sec’y,

Fla. Dep’t of Corr., 730 F.3d 1257, 1260 (11th Cir. 2013).

      Under the abuse-of-discretion standard, “we will leave undisturbed a district

court’s ruling unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.” Ameritas Veritable Life Ins.

v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005). “[A]n error of law constitutes an

abuse of discretion.” BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271,

1275 (11th Cir. 2008) (internal quotation marks omitted).

                                 III. DISCUSSION

A.    Martinez and Trevino Do Not Apply
      Arthur’s Rule 60(b)(6) motion is based on the U.S. Supreme Court’s

decisions in Martinez and Trevino. Arthur asserts that the new rules announced in

Martinez and Trevino (collectively referred to as the “Martinez rule”) “excuses”

his failure to file his § 2254 petition within AEDPA’s one-year statute of

limitations period and allows him to unravel the district court’s 2002 judgment


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dismissing his § 2254 petition as untimely filed. We review the Martinez and

Trevino decisions and explain why the Martinez rule does not apply at all to

Arthur’s case.

       In Martinez, a § 2254 petition asserted ineffective-trial-counsel claims.

Petitioner Martinez acknowledged that he had not raised those claims in state court

and that those claims were barred by the doctrine of procedural default.

Nevertheless, Martinez argued that he had “cause” to excuse his default because

his first state collateral counsel failed to raise Martinez’s ineffective-trial-counsel

claims in his first state collateral petition.

       The question in Martinez was “whether a federal habeas court may excuse a

procedural default of an ineffective-assistance claim when the claim was not

properly presented in state court due to an attorney’s errors in an initial-review

collateral proceeding.” Martinez, 132 S. Ct. at 1313. After declining to resolve

that question on constitutional grounds, the Supreme Court decided Martinez’s

case on equitable grounds based on the “cause and prejudice” exception to the

procedural default doctrine in federal habeas cases. Id. at 1315, 1319-20. Under

the procedural default doctrine, if a state prisoner “defaulted his federal claims in

state court pursuant to an independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the prisoner can demonstrate cause for


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the default and actual prejudice as a result of the alleged violation of federal law . .

. .” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991)

(emphasis added). Under the Supreme Court’s Coleman decision, even if a

petitioner “had no right to counsel to pursue his appeal in state habeas” and even if

“attorney error . . . led to the default of [the petitioner’s] claims in state court,”

cause does not exist to excuse the procedural default. Id. at 757, 111 S. Ct. at

2568. 17

       In Martinez, the Supreme Court announced a “narrow exception” to

Coleman’s procedural default rule in the limited circumstances where a state law

“requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a

collateral proceeding.” Martinez, 132 S. Ct. at 1315, 1318 (emphasis added).

Martinez’s narrow exception to Coleman’s general rule applies only where (1) a

state requires a prisoner to raise ineffective-trial-counsel claims at the initial-




       17
          Coleman involved a habeas petitioner’s contention that his attorney’s failure to file a
timely notice of appeal in his state habeas proceeding—which resulted in procedural default of
the claims raised in that state proceeding—constituted cause to excuse the procedural default in a
later federal habeas proceeding. 501 U.S. at 752, 111 S. Ct. 2566. The Coleman Court held that
negligence on the part of a prisoner’s post-conviction attorney did not qualify as “cause”
sufficient to excuse the procedural default of the habeas claims. Id. at 753, 111 S. Ct. at 2566-
67; see also id. at 757, 111 S. Ct. at 2568 (“Because [the petitioner] had no right to counsel to
pursue his appeal in state habeas, any attorney error that led to the default of [the petitioner’s]
claims in state court cannot constitute cause to excuse the default in federal habeas.”); see also
Maples v. Thomas, 566 U.S. ___, ___, 132 S. Ct. 912, 922 (2012).


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review stage of a state collateral proceeding 18 and precludes those claims during

direct appeal; (2) the prisoner did not comply with state rules and failed properly to

raise ineffective-trial-counsel claims in his state initial-review collateral

proceeding; (3) the prisoner did not have counsel (or his appointed counsel was

ineffective by not raising ineffective-trial-counsel claims) in that initial-review

collateral proceeding; and (4) failing to excuse the prisoner’s procedural default

would cause the prisoner to lose a “substantial” ineffective-trial-counsel claim. Id.

at 1318 (defining a substantial claim as one with “some merit”). The Martinez

Court emphasized that “[t]he rule of Coleman governs in all but the limited

circumstances recognized here.” Id. at 1320.

       Importantly, the Martinez Court expressly limited its holding to attorney

errors in initial-review collateral proceedings, stating, “[T]he holding in this case

does not concern attorney errors in other kinds of proceedings, including appeals

from initial-review collateral proceedings, second or successive collateral

proceedings, and petitions for discretionary review in a State’s appellate courts.”

Id. As a matter of equity, the Martinez Court held




       18
        The Supreme Court defined “initial-review collateral proceedings” as “collateral
proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.”
Martinez, 132 S. Ct. at 1315.


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             Where, 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. (emphases added). The Martinez rule is not a constitutional rule but an

equitable principle.

      Subsequently, the U.S. Supreme Court extended Martinez’s rule to cases

where state law technically permits ineffective-trial-counsel claims on direct

appeal but state procedures, as a practical matter, make it “virtually impossible” to

actually raise ineffective-trial-counsel claims on direct appeal. See Trevino v.

Thaler, 569 U.S. ___, 133 S. Ct. 1911, 1918-21 (2013); see also id. at 1915

(extending Martinez’s holding to those state systems that, in actual operation make

it “virtually impossible” for an ineffective-trial-counsel claim to be presented on

direct review). According to Trevino, where a “state procedural framework, by

reason of its design and operation, makes it highly unlikely in a typical case that a

defendant will have a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal, [the] holding in Martinez applies.” Id.

at 1921 (emphases added). The Trevino Court underscored the narrowness the

Martinez rule. Id. (applying Martinez’s “narrow exception” to Coleman’s general


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rule); see also Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013) (“By its own

emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of

ineffective assistance of trial counsel that are otherwise procedurally barred due to

the ineffective assistance of post-conviction counsel” and where, “under state law,

claims of ineffective assistance of trial counsel must be raised in an initial-review

collateral proceeding.”).

      As our discussion shows, the Martinez rule explicitly relates to excusing a

procedural default of ineffective-trial-counsel claims and does not apply to

AEDPA’s statute of limitations or the tolling of that period. The § 2254

ineffective-trial-counsel claims in Martinez and Trevino were not barred by

AEDPA’s one-year limitations period. Instead, those § 2254 claims were

dismissed under the doctrine of procedural default because the petitioners never

timely or properly raised them in the state courts under the states’ procedural rules.

At no point in Martinez or Trevino did the Supreme Court mention the “statute of

limitations,” AEDPA’s limitations period, or tolling in any way.

      The Martinez rule arose from the impact of state rules that (1) did not allow

petitioners to raise ineffective-trial-counsel claims on direct appeal (or made it

virtually impossible to do so) and (2) required petitioners to bring such claims only

in their initial-review collateral proceedings. In Martinez and Trevino, collateral


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counsel did not raise such claims in the initial-review collateral proceedings but

raised them only in a second state collateral review proceedings, which resulted in

the claims being procedurally barred under state rules. See Martinez, 132 S. Ct. at

1314; Trevino, 133 S. Ct. at 1915. In Martinez and Trevino, it was how the state

rules operated—the rules precluded review of, or a meaningful opportunity to

raise, ineffective-trial-counsel claims, triggering a state procedural bar—which

created the cause to excuse the state bar.

      In contrast, Arthur’s case does not involve “cause” under the procedural

default doctrine. Arthur’s § 2254 petition was dismissed because he filed it well

after AEDPA’s limitations period expired, and he showed no basis for tolling. See

Arthur, 452 F.3d at 1250-54. Arthur’s case concerns only the operation of a

federal rule—namely, the operation of AEDPA’s one-year statute of limitations. It

was wholly the operation of AEDPA’s federal limitations period—independent of

any state procedural rule—that barred Arthur’s § 2254 petition. Because Arthur’s

§ 2254 petition was denied due to his complete failure to timely file that § 2254

petition, the Supreme Court’s analysis in Martinez and Trevino of when and how

“cause” might excuse noncompliance with a state procedural rule is wholly

inapplicable here.




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      For all of these reasons, the Martinez rule does not apply at all to Arthur’s

case. Predicting this result, Arthur asserts that we should broaden the equitable

reasoning behind the Martinez rule and apply it to his case. But, any such

broadening would ignore the Supreme Court’s emphatic statements that the

Martinez rule creates only a narrow exception to Coleman’s general rule. See

Martinez, 132 S. Ct. at 1315 (referring to a “narrow exception”); id. at 1320

(referring to the “limited circumstances” in which its ruling applied and discussing

the “limited nature” of the rule); Trevino, 133 S. Ct. at 1921 (applying Martinez’s

“narrow exception”). Thus, we also hold that the reasoning of the Martinez rule

does not apply to AEDPA’s limitations period in § 2254 cases or any potential

tolling of that period. The narrow exception in the Martinez rule is designed to be

hard to meet “to ensure that state-court judgments are accorded the finality and

respect necessary to preserve the integrity of legal proceedings within our system

of federalism.” Martinez, 132 S. Ct. at 1316.

B.    Arthur Has Not Shown Extraordinary Circumstances
      Even assuming that the Martinez rule or the rationale behind that rule were

extended to a § 2254 petition barred by AEDPA’s limitations period and even

assuming that would change the relevant decisional law as to equitable tolling, the

U.S. Supreme Court has already told us that a change in decisional law is


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insufficient to create the “extraordinary circumstance” necessary to invoke

Rule 60(b)(6). See Gonzalez, 545 U.S. at 535-38, 125 S. Ct. at 1249-51; see also

Howell, 730 F.3d at 1260-61 (holding that a change in the interpretation of

AEDPA’s statute of limitations in Holland v. Florida, 560 U.S. 631, 130 S. Ct.

2549 (2010), was not an “extraordinary circumstance”).

      Similarly, we hold that the change in the decisional law affected by the

Martinez rule is not an “extraordinary circumstance” sufficient to invoke Rule

60(b)(6). We explain why, starting with the facts in Gonzalez.

      Under AEDPA, and absent tolling, Gonzalez had to file his § 2254 petition

by April 23, 1997. See Gonzalez, 545 U.S. at 527, 125 S. Ct. at 2645. Gonzalez

filed his petition in June 1997. Id. at 526, 125 S. Ct. at 2645. Because Gonzalez’s

second state post-conviction motion was not “properly filed,” the district court

concluded that Gonzalez’s petition was time-barred and AEDPA’s limitations

period was not tolled while that motion was pending in state court. Id. at 527, 125

S. Ct. at 2645; see also 28 U.S.C. § 2244(d)(2) (tolling AEDPA’s statute of

limitations during the pendency of a “properly filed” application for state post-

conviction or collateral review). Thus, the district court dismissed Gonzalez’s

§ 2254 petition as time-barred. Gonzalez, 545 U.S. at 526-27, 125 S. Ct. at 2645.




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       In 2001, Gonzalez, pro se, filed a Rule 60(b)(6) motion to alter the district

court’s prior judgment that his § 2254 petition was time-barred. Id. at 527, 125

S. Ct. at 2645. The district court denied the motion. Id. After this Court affirmed,

the Supreme Court granted Gonzalez’s petition for certiorari. 19

       The Supreme Court examined what effect its recent decision in Artuz v.

Bennett, 531 U.S. 4, 121 S. Ct. 361 (2000), had on Gonzalez’s Rule 60(b)(6)

motion. Gonzalez, 545 U.S. at 536, 125 S. Ct. at 2650. Artuz concluded that a

state post-conviction petition could be properly filed so as to toll AEDPA’s

limitations period even when all of the claims had been procedurally defaulted.

531 U.S. at 8-9, 121 S. Ct. at 363-64. For the purposes of its Rule 60(b)(6)

analysis, the Gonzalez Court assumed that Artuz was a change in decisional law

that revealed error in the district court’s dismissal of Gonzalez’s § 2254 petition as

time-barred. Gonzalez, 545 U.S. at 536, 125 S. Ct. at 2650.

       Nevertheless, the Supreme Court in Gonzalez held that a change in

decisional law—Artuz’s changing the interpretation of AEDPA’s statute of

limitations for a § 2254 petition—did not create an “extraordinary circumstance”

       19
         This Court affirmed the dismissal but on the alternative grounds that the motion was a
successive § 2254 petition. Gonzalez, 545 U.S. at 528, 125 S. Ct. at 2645. After granting
Gonzalez’s certiorari petition, the Supreme Court first determined that his Rule 60(b)(6) motion
was not a second § 2254 petition because it did not present new claims. Id. at 535-36, 125 S. Ct.
at 2650. The Supreme Court then affirmed the denial of Gonzalez’s Rule 60(b)(6) motion on
other grounds, as explained below.


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under Rule 60(b)(6). Id. The Supreme Court stated that (1) the district court’s

judgment was correct when it was decided and (2) it was “hardly extraordinary”

that “after [Gonzalez’s] case was no longer pending, this Court arrived at a

different interpretation” of AEDPA’s statute of limitations. Id. The Supreme

Court held that the district court correctly denied relief under Rule 60(b)(6). Id. at

536, 538, 125 S. Ct. at 2650-51. Gonzalez admonished that extraordinary

circumstances warranting the reopening of a judgment “will rarely occur in the

habeas context.” Id. at 535, 125 S. Ct. at 2649.

      Subsequently, in Howell, this Court applied Gonzalez and explicitly held

that a change in the equitable tolling law for AEDPA’s statute of limitations does

not constitute an “extraordinary circumstance” under Rule 60(b)(6). Howell, 730

F.3d at 1261. Howell’s § 2254 petition alleged ineffective-trial-counsel claims but

was not filed within AEDPA’s one-year limitations period. Id. at 1259-60.

Howell argued that equitable tolling applied because his state-court-appointed

collateral counsel filed his state post-conviction motion without leaving sufficient

time to file a federal § 2254 petition. Id. This Court affirmed the dismissal of

Howell’s § 2254 petition as untimely because our precedents held that “attorney

negligence is not a basis for equitable tolling.” Id. at 1260 (internal quotation

marks omitted).


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      Then, the U.S. Supreme Court altered when attorney conduct might

equitably toll AEDPA’s limitations period. See Holland, 560 U.S. 631, 130 S. Ct.

2549. Thus, similar to the Artuz decision, the Holland decision altered the

interpretation of tolling under AEDPA’s limitations period.

      After Holland, Howell filed a Rule 60(b)(6) motion, arguing that his § 2254

petition was timely filed under Holland because his counsel’s negligence caused

the prior untimely filing and warranted equitable tolling. Howell, 730 F.3d at

1258. Denying Howell’s motion, the district court relied on Gonzalez and

concluded that Holland’s change in the interpretation of AEDPA’s statute of

limitations was not an “extraordinary circumstance” warranting Rule 60(b)(6)

relief. Id. at 1257-58, 1261. Affirming, this Court too applied Gonzalez and held,

“The district court did not abuse its discretion when it read Gonzalez to mean that

the change of law in Holland was not an extraordinary circumstance.” Id. at 1261.

      In Gonzalez and Howell, the § 2254 petitions—like Arthur’s § 2254

petition—were dismissed because they were filed after AEDPA’s one-year

limitations period expired. Both Gonzalez and Howell affirmed the denial of Rule

60(b)(6) motions because a change in decisional law related to AEDPA’s statute of

limitations was not an “extraordinary circumstance” for the purposes of Rule




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60(b)(6). Gonzalez, 545 U.S. at 536, 538, 125 S. Ct. at 2650-51; Howell, 730 F.3d

at 1261.

       We reach a similar conclusion here: the change in decisional law created by

the Martinez rule does not constitute an “extraordinary circumstance.” Thus, the

district court did not abuse its discretion when it denied Arthur’s Rule 60(b)(6)

motion. See also Booker, 90 F.3d at 442 (“Something more than a ‘mere’ change

in the law is necessary to provide the grounds for Rule 60(b)(6) relief.” (quotation

marks and alterations omitted)). 20

       Arthur argues that other factors beyond a change in decisional law render the

circumstances here extraordinary. In particular, he notes that, (1) unlike Gonzalez,

Arthur’s case is a death-penalty case and (2) no court has yet considered Arthur’s

ineffective-trial-counsel claims on the merits.

       But, Arthur overlooks the fact that Howell was a death-penalty case. And,

like Arthur, Howell did not have his § 2254 petition reviewed on the merits.

Howell, 730 F.3d at 1262 (Jordan, J., concurring). As to Rule 60(b)(6)’s

       20
          Because of our holding that any change in decisional law brought about by Martinez
and Trevino is not an extraordinary circumstance to revisit Arthur’s § 2254 petition under Rule
60(b)(6), we need not reach the State’s claims that Arthur (1) could have raised his ineffective-
trial-counsel claims on direct review and was not precluded by Alabama law at that time from
doing so; (2) could have asked for court-appointed collateral counsel but never did; (3) expressly
chose not to invoke Alabama’s procedures to have collateral counsel appointed; and (4) in any
event, has not demonstrated a substantial claim of ineffective trial counsel as required under the
Martinez rule.


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“extraordinary circumstance” threshold, there is no material distinction between

Howell and Arthur’s case. In any event, we hold that, even assuming the Martinez

rule applied and affected equitable tolling of AEDPA’s statute of limitations, that

change in decisional law did not create an extraordinary circumstance for purposes

of Rule 60(b)(6) in Arthur’s case.

                               IV. CONCLUSION

      The Martinez rule did not change the law in any way related to Arthur’s

case. Even assuming that the Martinez rule changed or even affected in some way

the decisional law about AEDPA’s statute of limitations and equitable tolling, any

such change in law is not an extraordinary circumstance warranting relief under

Rule 60(b)(6).

      The district court did not abuse its discretion in denying Arthur’s Rule 60(b)

motion. Accordingly, the denial of Arthur’s motion for relief from judgment in his

§ 2254 petition is AFFIRMED.




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