                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 15a0130p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 STEPHEN MICHAEL WEST,                                 ┐
                               Petitioner-Appellant,   │
                                                       │
                                                       │       No. 13-6358
        v.                                             │
                                                        >
                                                       │
 WAYNE CARPENTER, Warden,                              │
                              Respondent-Appellee.     │
                                                       ┘
                         Appeal from the United States District Court
                      for the Eastern District of Tennessee at Knoxville.
                No. 3:01-cv-00091—Thomas A. Varlan, Chief District Judge.
                                 Argued: January 22, 2015
                              Decided and Filed: June 25, 2015

                   Before: BOGGS, MOORE, and COOK, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED:         Stephen Ferrell, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Andrew C. Coulam, OFFICE OF
THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF:
Stephen Ferrell, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
Knoxville, Tennessee, for Appellant. Andrew C. Coulam, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
                                   _________________

                                         OPINION
                                    _________________

       BOGGS, Circuit Judge. Stephen West, a Tennessee prisoner sentenced to death, appeals
the denial of his motion for relief from judgment filed pursuant to Federal Rule of Civil
Procedure 60(b)(6). In September 2004, the district court denied West’s initial habeas corpus




                                              1
No. 13-6358                            West v. Carpenter                             Page 2

petition filed under 28 U.S.C. § 2254, and we affirmed. West v. Bell, 550 F.3d 542 (6th Cir.
2008). West’s Rule 60(b)(6) motion sought to revisit a claim asserting the ineffectiveness of trial
counsel due to a conflict of interest, arguing that, under the Supreme Court’s decision in
Martinez v. Ryan, 132 S. Ct. 1309 (2012), the ineffectiveness of his state post-conviction counsel
excused the procedural default of that claim.

       The district court denied relief and certified two questions for appeal: (1) whether
Martinez, as expanded by Trevino v. Thaler, 133 S. Ct. 1911 (2013), applies to Tennessee cases;
and (2) whether Martinez and Trevino may constitute “extraordinary circumstances” justifying
Rule 60(b)(6) relief. While Martinez and Trevino apply in Tennessee cases generally, they do
not apply to West’s conflict-of-interest claim because that claim was defaulted at the state post-
conviction appellate proceeding, rather than initial-review proceeding. We therefore affirm the
district court’s denial of West’s Rule 60(b)(6) motion.

                                                 I

                               A. Factual Background and Trial

       On March 17, 1986, twenty-three-year-old Stephen West and seventeen-year-old Ronnie
Martin drove to the home of fifteen-year-old Sheila Romines, a schoolmate of Martin who had
rebuffed Martin’s advances and embarrassed him in front of other students. West, 550 F.3d at
546; State v. West, 767 S.W.2d 387, 389–90 (Tenn. 1989). They waited until Sheila’s father left
for work at around 5:20 a.m. before entering the home and brutally murdering Sheila and her
mother, Wanda Romines. Ibid. A forensic pathologist testified that Sheila had been raped and
had suffered seventeen stab wounds, including fourteen torture-type cuts that were inflicted
while she was alive. Id. at 391. Wanda also suffered torture-type wounds. Ibid.

       Police arrested West and Martin the next day, and Tennessee prosecuted them separately.
West’s parents hired Richard McConnell for $10,000 to act as lead defense counsel, and the
court appointed Thomas McAlexander as co-counsel. West admitted at trial that he was present
at the crime scene but denied inflicting bodily harm upon either victim. He testified that Martin
threatened his life with a gun and knives and forced him to rape Sheila. Id. at 390. On March
24, 1987, a jury convicted West of two counts of first-degree murder, two counts of aggravated
No. 13-6358                             West v. Carpenter                            Page 3

kidnapping, one count of aggravated rape, and one count of larceny. The jury sentenced him to
death. West appealed his conviction and sentence to the Tennessee Supreme Court, which
rejected all of his arguments on February 6, 1989. Id. at 403.

                              B. State Post-Conviction Proceedings

       West filed for post-conviction relief in the Criminal Court of Union County, Tennessee in
October 1990, arguing, inter alia, that he received ineffective assistance at the sentencing phase
because his trial counsel failed to investigate and present mitigating evidence of his childhood
abuse by his own parents. West’s amended petition for post-conviction relief alleged ineffective
assistance in numerous ways, including that trial counsel (1) “repeatedly informed [West] that
any and all decisions pertaining to his case would be made by [West’s] family members since
they had retained [counsel’s] professional services,” and (2) “assert[ed] that his effectiveness in
the presentation and representation of [West] was contingent upon additional fees being paid to
him in excess of the original contract.” The amended complaint did not frame these allegations
as stating a separate conflict-of-interest ineffective-assistance claim.

       The post-conviction trial court held evidentiary hearings on September 24 and October
22, 1996. We summarized the evidence presented at the evidentiary hearing in our opinion
affirming the denial of West’s § 2254 motion, and so we review it only briefly here. See West,
550 F.3d at 547–49.

       Dr. Eric Engum, a clinical psychologist, testified that, while West’s intelligence and
memory were within normal limits, he suffered from psychological problems that were
“consistent with or reflect[ed] prior abuse.” Id. at 547 (quoting West v. Tennessee, No. 3:01-cv-
91, slip op. at 18 (E.D. Tenn. Sept. 30, 2004)). The State’s expert witness, Dr. Bursten,
disagreed with Dr. Engum’s conclusion. West, 550 F.3d at 549.

       West’s sisters, Debbie West and Patricia Depew, and his aunt, Ruby West, testified that
West’s parents physically abused him throughout his childhood. Id. at 547–48. Debbie West
further testified that she told defense counsel McConnell about the abuse but that McConnell
responded that “the information about the alleged abuse was not relevant, and that, furthermore,
her parents were paying him and would not admit to the abuse.” Id. at 548. Debbie West also
No. 13-6358                            West v. Carpenter                             Page 4

testified that McConnell complained about the fee he was being paid and threatened to provide
inadequate representation unless the family paid him more money.

       McConnell testified that he conducted a complete investigation into West’s life and
denied ever being told by Debbie about West’s abuse. McConnell admitted that he thought
$10,000 was unreasonably low and that he contacted the family to request an additional $5,500
in fees and expenses but denied complaining to or threatening the family. Id. at 548–49.

       Despite West’s failure to expressly raise a conflict-of-interest ineffective-assistance
claim, the post-conviction trial court interpreted West’s allegations and evidence as stating a
claim that trial counsel was ineffective due to a conflict of interest. West v. Tennessee, No. 629,
slip op. at 4–5 (Tenn. Crim. Ct. April 14, 1997). The court analyzed the conflict-of-interest
claim separately from the rest of West’s ineffective-assistance arguments and concluded that
West “failed to meet his burden of proof with respect to this allegation.” Id. at 5. The Criminal
Court also denied West’s other claims. Id. at 15.

       West appealed to the Tennessee Court of Criminal Appeals, but he did not raise the
conflict-of-interest claim on appeal. The Tennessee Court of Criminal Appeals affirmed the
denial of his post-conviction relief. West v. Tennessee, 04C01-9708-CR-00321 (Tenn. Ct. Crim.
App. June 12, 1998).

       West then filed a petition for rehearing and, when that was denied, an application
       for permission to appeal to the Tennessee Supreme Court. The Tennessee
       Supreme Court allowed West to appeal only the issue of whether there was
       sufficient evidence to establish the aggravating circumstance, but the court
       ultimately affirmed the denial of post-conviction relief. West then filed for a
       petition for rehearing, which was denied on June 7, 2000.

West, 550 F.3d at 549.

                                 C. Federal Court Proceedings

       In 2001, West filed his § 2254 petition in federal district court, alleging twenty-two
grounds for habeas relief, including that lead counsel McConnell provided ineffective assistance
because he was acting under an actual conflict of interest. West, 3:01-cv-91, slip op. at 181. The
district court held that this claim was procedurally defaulted because West “did not raise the
No. 13-6358                            West v. Carpenter                              Page 5

claim that his counsel was operating under an actual conflict of interest in the Tennessee Court of
Criminal Appeals after the state trial court denied his petition for post-conviction relief.” Id. at
182. The district court also dismissed West’s other claims, and we affirmed. West, 550 F.3d at
567.

       In 2010, West filed a motion seeking relief from judgment under Rule 60(b). The district
court transferred the case for our consideration as a second or successive habeas petition, and we
dismissed the case because West had not set forth grounds warranting a successive petition. In
re West, 402 F. App’x 77, 79 (6th Cir. 2010). In February 2013, West filed this Rule 60(b)(6)
motion. The motion relied on the Supreme Court’s decision in Martinez in an attempt to show
cause and prejudice to excuse the procedural default of West’s conflict-of-interest claim, arguing
that Martinez constitutes an “exceptional or extraordinary circumstance” that justifies Rule
60(b)(6) relief. See E. Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 466 (6th Cir. 2011).
The Supreme Court decided Trevino, a case that expanded Martinez’s holding, in May 2013. In
September 2013, the district court denied West’s motion but granted certificates of appealability
on two issues: (1) whether Martinez and Trevino are applicable to Tennessee cases; and
(2) whether Martinez and Trevino may constitute extraordinary circumstances justifying Rule
60(b)(6) relief. West. v. Carpenter, No. 3:01-cv-91, 2013 WL 5350627, at *1 (E.D. Tenn. Sept.
23, 2013). This appeal followed.

                                                II

       Federal Rule of Civil Procedure 60(b)(6) is a catchall provision that provides for relief
from a final judgment for any reason justifying relief not captured in the other provisions of Rule
60(b). McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir. 2013), cert.
denied, 134 S. Ct. 998 (2014). Rule 60(b)(6) applies only in exceptional or extraordinary
circumstances where principles of equity mandate relief. Ibid. “The decision to grant Rule
60(b)(6) relief is a case-by-case inquiry that requires the trial court to intensively balance
numerous factors, including the competing policies of the finality of judgments and the incessant
command of the court’s conscience that justice be done in light of all the facts.” Ibid.; Thompson
v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). While we review the denial of a Rule 60(b) motion
for an abuse of discretion, the district court’s discretion in deciding a Rule 60(b)(6) motion is
No. 13-6358                              West v. Carpenter                              Page 6

especially broad due to the underlying equitable principles involved.            Tyler v. Anderson,
749 F.3d 499, 509 (6th Cir.), cert. denied sub nom. Tyler v. Lazaroff, 135 S. Ct. 370 (2014).

                                                  III

         A state prisoner is eligible for federal habeas relief under § 2254 only if he first exhausts
state-court remedies. See 28 U.S.C. § 2254(b). The exhaustion requirement is satisfied only if
the petitioner has “fairly presented” the “substance of [his] federal habeas corpus claim” to the
state courts. Picard v. Connor, 404 U.S. 270, 275, 278 (1971). If the petition fails to raise a
claim on appeal, in violation of a state procedural rule, that claim is subject to procedural default
and will not be reviewed by federal courts unless the petitioner demonstrates cause and prejudice
for his default. See Coleman v. Thompson, 501 U.S. 722, 729, 750 (1991). Constitutionally
ineffective assistance of counsel may constitute “cause” to excuse procedural default in certain
cases.    But “a petitioner [ordinarily] cannot claim constitutionally ineffective assistance of
counsel” at “state post-conviction proceedings” because “[t]here is no constitutional right to an
attorney” at those proceedings. Id. at 752. Therefore, the Supreme Court in Coleman held that
attorney error in state post-conviction proceedings “cannot constitute cause to excuse [a] default
in federal habeas.” Id. at 757.

         In Martinez, the Supreme Court carved out a “narrow exception” to Coleman’s general
rule. 132 S. Ct. 1315. It held that

         [w]here, 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. at 1320. Because initial-review collateral proceedings provide the first opportunity for the
state court to consider an ineffective-assistance-of-trial-counsel claim, they are “in many ways
the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.” Id. at 1317.
The Martinez exception to Coleman is necessary because,

         [w]hen an attorney errs in initial-review collateral proceedings [by failing to raise
         an ineffective-of-assistance-of-trial-counsel claim], it is likely that no state court
         at any level will hear the prisonerʼs claim. . . . And if counselʼs errors in an
         initial-review collateral proceeding do not establish cause to excuse the
No. 13-6358                             West v. Carpenter                              Page 7

        procedural default in a federal habeas proceeding, no court will review the
        prisonerʼs claims.

Id. at 1316.      Therefore, “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Id. at 1315.

        In Trevino, the Supreme Court expanded the Martinez exception to apply where, although
state procedural law does not expressly prohibit a defendant from raising an ineffective-
assistance claim on direct appeal, the state’s “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.” 133 S. Ct.
at 1921. Because Tennessee’s procedural framework directs defendants to file ineffective-
assistance claims in post-conviction proceedings rather than on direct appeal, we have held that
the Martinez-Trevino exception to Coleman applies in Tennessee cases. Sutton v. Carpenter,
745 F.3d 787, 795–96 (6th Cir. 2014).

        Although the Martinez-Trevino exception applies in Tennessee cases, it does not apply to
West’s defaulted conflict-of-interest claim because he raised that claim at the post-conviction
initial-review proceeding and failed to preserve it on appeal. The Supreme Court stated that the
exception “does not extend to attorney errors in any proceeding beyond the first occasion the
State allows a prisoner to raise a claim of ineffective assistance at trial,” “including appeals from
initial-review collateral proceedings.” Martinez, 132 S. Ct. at 1320 (emphasis added). In
denying his § 2254 motion, the district court concluded that the conflict-of-interest claim was
defaulted because West failed to raise the issue at his post-conviction appellate proceedings. We
held in Wallace v. Sexton that the Martinez-Trevino exception does not extend to attorney error
at post-conviction appellate proceedings because those proceedings are not the “first occasion”
at which an inmate could meaningfully raise an ineffective-assistance-of-trial-counsel claim.
570 F. App’x 443, 453 (6th Cir. 2014).

        The first occasion for West to raise his conflict-of-interest ineffective-assistance claim
was the initial-review post-conviction proceeding before the Criminal Court of Union County.
West argues on appeal that his conflict-of-interest claim was procedurally defaulted at that stage,
No. 13-6358                                  West v. Carpenter                                    Page 8

and not at the post-conviction appellate proceeding. West does not argue that post-conviction
trial counsel failed to raise the conflict-of-interest claim.             He concedes that, although his
amended petition did not expressly frame certain allegations contained therein as a conflict-of-
interest claim, those allegations—and accompanying evidence—“must have [made it] obvious to
the post-conviction trial court that [West was] talking about a conflict of interest.”                      Oral
Argument at 3:07, West v. Carpenter, No. 13-6358 (6th Cir. argued Jan. 22, 2015). Instead,
West contends that post-conviction trial counsel was ineffective because “counsel never
advanced the proper federal standard” to analyze a conflict-of-interest claim.                     Id. at 2:00.
According to West, the post-conviction trial court should have applied the presumed-prejudice
standard (sometimes called the “adversely affected” standard) under Cuyler v. Sullivan, 446 U.S.
335, 350 (1980), rather than the “reasonable probability [sufficient to undermine confidence in
the outcome] that . . . the result of the proceeding would have been different” standard of
prejudice under Strickland v. Washington, 466 U.S. 668, 694 (1984). This argument fails for two
reasons.

        First, the Sullivan standard was inapplicable. Sullivan’s presumed-prejudice standard
applies only if there was an “actual conflict of interest.”1 See e.g., Kumar v. United States,
163 F. App’x 361, 366–67 (6th Cir. 2006). But the post-conviction trial court found that West
“failed to meet his burden of proof with respect to” the existence of a conflict of interest, and
therefore it had no reason to apply the Sullivan standard. West, No. 629, slip op. at 5. Post-
conviction trial counsel’s failure to ask for an inapplicable standard was not ineffective
assistance. Second, and more importantly, to the extent that post-conviction trial counsel was
ineffective, that ineffectiveness at trial could not have caused procedural default. Despite
West’s oblique presentation of the conflict-of-interest claim, the post-conviction trial court
identified the claim and denied it on the merits. Even if the post-conviction trial court had ruled
erroneously, and its error were traceable directly to counsel’s deficient advocacy, the conflict-of-
interest claim would not have been procedurally defaulted at the post-conviction trial proceeding
because West retained the right to preserve the claim by appealing.


        1
          Additionally, “the Supreme Court found that the presumed prejudice standard of Sullivan was clearly
established only in the situation of a conflict of interest due to multiple concurrent representation.” Stewart v.
Wolfenbarger, 468 F.3d 338, 350 (6th Cir. 2006) (citing Mickens v. Taylor, 535 U.S. 162, 175 (2002)). Trial
counsel did not concurrently represent West and his parents in this case.
No. 13-6358                           West v. Carpenter                            Page 9

       When the state court denies a petitioner’s ineffective-assistance claim on the merits,
Martinez does not apply. Unlike in Martinez, default occurred only after West failed to appeal
that denial before the Tennessee Court of Criminal Appeals. Although this failure may have
been the product of attorney error, attorney error at state post-conviction appellate proceedings
cannot excuse procedural default under the Martinez-Trevino framework.          Wallace, 570 F.
App’x at 453.

                                               IV

       There is no reason to revisit West’s conflict-of-interest claim under the Martinez-Trevino
framework because that claim was defaulted at the state post-conviction appellate proceeding.
Accordingly, without reaching the question of whether Martinez and Trevino may constitute
extraordinary circumstances justifying Rule 60(b)(6) relief, we AFFIRM the district court’s
denial of West’s Rule 60(b)(6) motion.
