author: KAREN NELSON MOORE, Circuit Judge.

text:
    Donald Ray MIDDLEBROOKS, Petitioner-Appellant, v. Wayne CARPENTER, Warden, Respondent-Appellee.
    No. 14-6061
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 19, 2016

      ON BRIEF: Paul R. Bottei, Gretchen L. Swift, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
    Before: MOORE, CLAY, and WHITE, Circuit Judges.
   OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner-Appellant Donald Middle-brooks appeals from the district court’s denial of his petition, for a writ of habeas corpus. Middlebrooks was convicted in Tennessee state court for the 1987 kidnapping and murder of Kerrick Majors, a foürteen-year-old African American. A jury sentenced Middlebrooks to death. This is Middlebrooks’s second appeal from the denial of his habeas claims. In 2010, we affirmed the district court’s first dismissal of Middlebroóks’s petition; the Supreme Court vacated our decision, however, in light of the Court’s holding in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). On remand, the district court concluded that Middlebrooks was not entitled to relief under Martinez and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). For the reasons discussed below, we AFFIRM the district court’s judgment denying Middlebrooks’s habeas petition.

I. BACKGROUND

The Tennessee Supreme Court summarized the evidence presented during Mid-dlebrooks’s capital trial as follows:

[O]n the evening of Sunday, April 26, 1987, around 7:00 p.m., the victim, Ker-rick Majors, a 14-year-old black male, was with four friends on Gallatin Road in East Nashville, Tennessee, when they saw a table with a “lot of stuff’ being set up across the street as a flea market by three homeless street persons: the defendant, Donald Middlebrooks (a 24-year-old white male); his wife, 17-year-old Tammy Middlebrooks; and their companion, 16-year-old Roger Brewing-ton. The five boys ran across Gallatin Road and were looking at the flea market when Tammy Middlebrooks called out, “Hey, leave our stuff alone!” The boys started running. The defendant and Brewington chased them until they caught Majors. Brewington grabbed Majors in a “sleeper hold” around his neck and head. The defendant held his hand. When Majors said, “Hey man, you know me,” Brewington responded, “Shut up, you nigger.” Shannon Stewart and another of the boys, Tony Watson, saw the two men drag Majors toward the table and observed the defendant strike him in the face, knocking him to the ground. Frightened, the boys took off running. Later that evening, they reported these events to the victim’s mother, who called the police.
The next aftprnoon, Kerrick Majors’ nude body was discovered lying face up in a dry creek bed under a foam mattress in a heavily wooded area, behind a drugstore on Gallatin Road in the area where the defendant and Brewington had caught Majors. A bloodstained T-shirt was tied around his neck. A red rope belt was tied around Majors’ left wrist, and there was a two-inch laceration in his right wrist. Abrasions, swelling, and bruising were present on the victim’s head, his left eye, his nose, his lips, and inside his mouth. An “X” with a vertical line running through it had been cut into his chest. The forensic pathologist, Dr. ’ Charles Harlan, testified that these incisions had been made while Majors was alive. There were two deep stab wounds in the center of the body. One of these penetrated the left lung and pulmonary artery and caused the victim to bleed to death over a period of ten to thirty minutes, during part of which Majors was conscious. Investigating officers noticed a smell of urine about the face, and there were bruises and skinned areas on the back. A wooden stick with blood stains on one end was found lying close to the victim’s head.
Around 1:10 a.m. on April 28, police investigators met Brewington at a doughnut shop several miles from the Gallatin Road area. Brewington directed the officers to the location of a knife with a brass knuckle handle, which was bloodstained. Dr. Harlan testified that this knife could have inflicted the deep stab wounds on the victim’s body. Brew-ington also directed the police to a wooded area between Gallatin Road and Ellington Parkway in Nashville where, around 7:00 a.m. on-April 28, Donald and Tammy Middlebrooks were apprehended at a small plywood shack. The defendant, who resisted the arresting officers, had a knife with him. He-was arrested with the aid of police dogs, taken to the hospital for treatment of the dog bites, and later transported to police headquarters.
At 12:30 p.m. that day, the defendant gave a lengthy video-taped- statement about his involvement in the death of Kerrick Majors. The defendant admitted participating in the beating and mistreatment of Majors, but described his role as minor and depicted Roger Brew-ington as the primary perpetrator of the offense. After Majors was caught, Mid-dlebrooks said Brewington suggested they “have some fun,” and the three of them took Majors back into the woods. His hands were tied. Brewington slapped him, beat him with the knife’s brass knuckles, hit him with a stick, and urinated into his mouth. The defendant admitted striking Majors with his open hand and on the leg with a switch. Defendant said that his wife Tammy had slapped Majors and burned Majors’ nose with a cigarette lighter as Brewington urged her on, Brewington hit Majors on his testicles, threatened to cut “it” open, stuck a stick up Majors’ anus, hit him some more with the brass knuckles, wiped the victim’s blood on himself, beat his mouth and tongue with a stick, dropped the knife on him, gagged him, and slashed his wrist. Finally, when the defendant asked Brewington to stop because the victim’s crying and pleading were getting on his nerves, Brewington gave the victim “the kiss of death” on the forehead. Brewington then gave the defendant the knife and told him to stab Majors. When the defendant refused, Brewington stabbed Majors. The defendant then reluctantly stabbed the victim, according to him, “to prove to Roger that I guess I was cooler” and to put Majors out of his misery. In a previous statement, however, the defendant had said that he had stabbed Majors twice. The victim’s ordeal began at 7:30 p.m. and ended at 11:00 p.m. that night with the stabbing.
The next day, the defendant said he and Brewington went back to where they had left the body. Brewington kicked it and made, the “X” lacerations at this time. The defendant said he then covered Majors with a foam mattress. The defendant admitted that before beating and killing Majors, he and Brewington had drunk alcohol and smoked marijuana. .
The defendant presented no proof.

State v. Middlebrooks, 840 S.W.2d 317, 323-25 (Tenn. 1992).

As we explained in our prior opinion, “[o]n the basis of this evidence, the jury convicted Middlebrooks of felony murder and aggravated kidnapping but acquitted him of first-degree premediated murder, armed robbery, and aggravated sexual battery.” Middlebrooks v. Bell, 619 F.3d 526, 532 (6th Cir. 2010), cert. granted, vacated sub ñom. Middlebrooks v. Colson, 566 U.S. 902, 132 S.Ct. 1791, 182 L.Ed.2d 612 (2012). The jury sentenced Middlebrooks to . death. Middlebrooks, 619 F.3d at 532. “[T]he jury found two aggravating circumstances — that the murder was especially heinous, atrocious, and cruel in that it involved torture or depravity of mind, and that it was committed while Middlebrooks perpetrated a felony.” Id.

- The Tennessee Supreme Court upheld Middlebrooks’s convictions on direct appeal but vacated Middlebrooks’s death sentence, finding that the second aggravating circumstance “duplicated the offense of felony murder and therefore failed to narrow the class of death-eligible defendants under Article I, § 16 of the Tennessee Constitution.” State v. Middlebrooks, 995 S.W.2d 550, 552-53 (Tenn. 1999); see also State v. Middlebrooks, 840 S.W.2d at 323.

The Tennessee Supreme Court remanded the case for a second sentencing proceeding, and the following evidence was presented:

According to the State’s proof, fourteen-year-old Majors was small for his age. He was described as a good student who loved school. He was not a violent person, nor did he carry a weapon. Since his murder, his mother’s health has deteriorated. She has been on medication and will not leave the house except for doctor appointments. She has had a nervous breakdown, suffers from panic attacks, and has not been able to sleep at night since the murder. Majors’ older brother blames himself for Majors’ death and now suffers from mood swings. Shannon Stewart testified that he had spoken with Middlebrooks the morning of the murder. Middlebrooks had told Stewart that he was a member of the KKK, that .he “hated niggers,” and that he punched a black man just for saying hello, Stewart also testified that he overheard Mid-dlebrooks order Majors to “shut up nigger.”
The defense introduced mitigation evidence as follows: Middlebrooks’ cousins, James and Carol Sue Little, and his half-sister, Sharon Fuchs, testified about Middlebrooks’ childhood. Middlebrooks grew up in Texas. His father died when he was four. His mother remarried and had another child, Ms. Fuchs, before she again divorced, Middlebrooks’ mother either left the children at night with relatives or else would take them to bars with her.
According to the proof, Middlebrooks’ mother would often bring men to the house, and the children sometimes heard or saw their mother having sex. Ms. Fuchs testified that sometimes these men would molest her while her mother watched. She further testified that she, Middlebrooks, and other children in the family were molested by different family members. For example, Middlebrooks was often left alone with a male relative who had sexually abused him, and Mid-dlebrooks’ mother would grab him between his legs and also watch him use the bathroom. According to Sharon Fuchs, the small town in which they grew up lacked counseling services or social service agencies where they could seek help for sexual abuse. According to her, no one in the family ever discussed or admitted the family’s problems.
The proof further indicated that Middle-brooks was often angry and got into trouble. He was sent to a Methodist Home for- Children in Waco for two years. Later, he was twice sent to prison. Between prison stays, Middlebrooks started to have seizures. On one,occasion he climbed a water tower and threatened to commit suicide. He was hospitalized more than once at a mental institution.
A psychologist, Dr. Jeffrey L, Smalldon, performed neuropsychological and psychological evaluations of Middlebrooks. From these evaluations, interviews, testing, and prior education and medical records, Smalldon concluded that Mid-dlebrooks has a severe borderline personality disorder. Middlebrooks exhibited several characteristics of the disorder including inconsistent behavior, instability of mood, a marked identity disturbance, impulsive and reckless behavior,' poor anger control, and recurring suicidal or self-destructive acts. Smalldon testified that the documents from other mental health professionals who have evaluated Middlebrooks indicate that he suffers from substance abuse, psychotic personality disorder, and schizophrenia. Middlebrooks also suffers a mild degree of organic brain impairment which causes him to be more impulsive and less able to delay his responses. Finally, Smalldon testified that Middlebrooks has also exhibited characteristics of adults who were sexually abused as children.
During cross-examination, Dr. Smalldon admitted that Middlebrooks confessed to á greater involvement in Majors’ death than-he had in the video-taped confession. For instance, Smalldon disclosed that Middlebrooks admitted to him that it was his idea to hold Majors for ransom, that he helped tie Majors up, and that he urinated on Majors. -In an attempt to resolve the discrepancies between the videotaped confession to the police and the confession made to him in the interview, Smalldon explained that Middlebrooks is a chronic liar. Dr. Smalldon conceded that Middlebrooks had never expressed any remorse to him. Smalldon agreed that there were some indications in the medical records of Middlebrooks’ malingering, but testified that these indications were not inconsistent with mental illness.
In rebuttal, the State introduced the testimony of two experts indicating that Middlebrooks was exaggerating his mental illness symptoms, that he was competent to stand trial, that he did not have a defense of insanity, and that he was not committable. One expert testified that he could not say whether Mid-dlebrooks was mentally ill. The other expert testified that he made no finding of mental illness and did not consider a personality disorder to be a mental illness.

State v, Middlebrooks, 995 S.W.2d at 554-56. Following the presentation of this evidence, the jury found “that the murder was ‘especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,’ ” and that this “outweighed the evidence of mitigating factors.” Id: at 556 (quoting Tenn. Code Ann. § 39-2-203(i)(5)). Middlebrooks was resentenced to death, and this sentence was affirmed on direct appeal by the Tennessee Supreme Court, See id, at 553.

Middlebrooks filed á petition for post-conviction relief in state court in November 1999. Appellee App, at 1. Middlebrooks raised several grounds for relief in his petition, including numerous arguments that he received ineffective assistance of counsel. See id. at 8-9. After an evidentiary hearing, the state court dismissed Middlebrooks’s petition in July 2001, Id. at 47. Middlebrooks appealed, and the Tennessee Court of Criminal Appeals affirmed. Middlebrooks v. State, No. M2001-01865-CCA-R3-PD, 2003 WL 61244, at *13 (Tenn. Ct. Crim. App. Jan. 9, 2003).

Middlebrooks filed- a petition for habeas corpus in federal district court in 2003, and amended his petition in 2004. See Appellant App. at 168. The district court denied relief on May 26, 2005, finding that many of Middlebrooks’s claim's were procedurally defaulted and others were non-meritorious. See id. at 206-83. The district court denied a Certificate of Appealability (“COA”) for all of Middlebrooks’s claims. Id. at 283; see also Middlebrooks v. Bell, No. 3:03-0814, 2007 WL 760441 (M.D. Tenn. Mar. 8, 2007). We granted a COA on seven issues, and ultimately affirmed the district court’s denial of Middlebrooks’s habeas petition. Middlebrooks v. Bell, 619 F.3d at 536-44.

On March 26, 2012, the United States Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). See Middlebrooks v. Colson, 566 U.S. 902, 132 S.Ct. 1791, 182 L.Ed.2d 612 (Mem.) (2012). We remanded to the district court, and the district court requested additional briefing. Middle-brooks argued that his habeas corpus petition presented twenty-six “substantial” ineffective-assistance-of-trial-counsel claims that “were never properly raised or presented during initial collateral review proceedings” due to his post-conviction counsel’s ineffectiveness, and thus that he was entitled to an evidentiary hearing and habeas relief under Martinez and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). R. 102 (Pet. Martinez Br. at 14) (Page ID #612).

On August 1, 2014, the district court again denied Middlebrooks’s petition, finding that his ineffective-assistance~of-trial-counsel claims were not “substantial” under Martinez and thus did not warrant an evidentiary hearing or habeas relief, R. 105 (08/01/14 D. Ct. Op. at 25) (Page ID #810). The district court granted a COA “on the issues of whether Petitioner’s claims about his trial and post conviction counsels omissions justify an evidentiary-hearing and habeas relief under Martinez and Trevino.” Id. Middlebrooks timely appealed. R. 107 (Notice of Appeal) (Page ID #838).

II. DISCUSSION

A. Martinez and Trevino Do Not Assist Middlebrooks’s Habeas Claims

Middlebrooks first argues that the district court erred in denying his habeas petition in light of Martinez and Trevino. Appellant Br. at 31. This court reviews de novo a district court’s denial of a petition for writ of habeas corpus. See Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court cannot grant habeas relief for “any claim that was adjudicated on the merits” by the state court unless the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Further, because federal courts must defer to “a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules,” Trevino, 133 S.Ct. at 1917, a federal court is barred from granting habeas relief if the petitioner has procedurally defaulted his claims in state court. See Hodges v. Colson, 727 F.3d 517, 529-30 (6th Cir. 2013). We review de novo “[w]hether a petitioner’s federal habeas claim is barred by procedural default.” Id. at 529. A prisoner may overcome a state-court procedural default only if the petitioner can establish “cause” and “prejudice,” or a “manifest miscarriage of justice.” Sutton v. Carpenter, 745 F.3d 787, 790-91 (6th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

We held in our prior opinion that Middlebrooks was not entitled to habeas relief for his ineffective-assistance-of-counsel claims because (1) Middlebrooks procedurally defaulted two of his claims at the Tennessee Court of Criminal Appeals and could not establish “cause” to excuse the default; (2) Middlebrooks abandoned one claim on appeal to our court; and (3) the Tennessee state court did not unreasonably apply federal law in resolving Middlebrooks’s remaining claim on the merits. See Middlebrooks, 619 F.3d at 535-41. The Supreme Court vacated our judgment and remanded the decision in light Martinez v. Ryan. Accordingly, prior to evaluating Middlebrooks’s claims, we first discuss the holding of Martinez.

1. The Supreme Court’s Decisions in Martinez and Trevino

The Court in Martinez established an exception to the general rule of Coleman v. Thompson, 501 U.S. at 756-57, 111 S.Ct. 2546. See Sutton, 745 F.3d at 791. Coleman held that, although counsel’s ineffectiveness during direct appeal may establish “cause” to excuse a petitioner’s procedural default, a petitioner cannot establish “cause” to excuse default that results from counsel’s ineffectiveness during post-conviction proceedings. See Coleman, 501 U.S. at 756-57, 111 S.Ct. 2546. This is because “a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review.” Id. at 756, 111 S.Ct. 2546.

Martinez modified Coleman’s rule in a narrow circumstance: where state law requires that a defendant bring an ineffective-assistance-of-trial-counsel claim in post-conviction proceedings, rather than on direct appeal, an attorney’s constitutionally deficient performance in the initial-review collateral proceeding can establish “cause” to excuse the default of the petitioner’s ineffective-assistance-of-trial-counsel claim. Martinez, 132 S.Ct. at 1318. “To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistanee-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” Id. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

In Trevino, the Court expanded Martinez and held that Martinez’s exception also applies “when a state’s procedural framework makes it ‘highly unlikely’ that a defendant in a typical case will have a meaningful opportunity’ to raise ineffective-assistance claims on direct appeal,” even if the state does not explicitly require ineffective-assistance-of-trial-counsel claims to be brought only on collateral review. Sutton, 745 F.3d at 791 (quoting Trevino, 133 S.Ct. at 1921). Cur determination of whether the Martinez-Trevino rule applies depends on proceedings in the state trial court on its initial post-conviction review, and “does not extend to ‘appeals from initial-review collateral proceedings ....’” Abdur’Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (quoting Martinez, 132 S.Ct. at 1320). We have held that the Martinez-Trevino rule applies in Tennessee cases. Sutton, 745 F.3d at 792.

2. Application of Martinet and Trevino to Middlebrooks’s Claims

On remand to the district court, Middle-brooks argued that Martinez and Trevino apply to excuse the procedural default of twenty-six of the ineffective-assistance-of-trial-counsel claims that he raised in his habeas petition. See R. 102 (Pet. Martinez Br. at 14) (Page ID #612). The district court concluded that relief was not warranted because Middlebrooks’s ineffective-assistance-of-trial-counsel Claims 9a and 9b — two claims addressed by our prior decision — were not “substantial” under Martinez. R. 105 (08/01/14 D. Ct. Op. at 25) (Page ID #810). Middlebrooks contends on appeal that the district court used the wrong standard to determine whether his claims were “substantial.” Appellant Br. at 45-46. Moreover, Middlebrooks argues that the district court erroneously failed to consider the twenty-four remaining claims presented in his habeas petition. Id. at 50-51.

We agree with Middlebrooks that the district court erred in its “substantiality” inquiry. The district court determined that Claims 9a and 9b were insubstantial because we held in our prior opinion that Middlebrooks failed to establish “cause” and “prejudice” to excuse their default. R. 105 (08/01/14 D. Ct. Op. at 25) (Page ID #810); see also Middlebrooks, 619 F.3d at 537-38. Under Martinez, however, an underlying ineffective-assistance-of-trial-counsel claim is “substantial” if it “has some merit,” á different inquiry. Martinez, 132 S.Ct. at 1318-19 (citing Miller-El, 537 U.S. 322, 123 S.Ct. 1029). Despite this error, we affirm the district court’s judgment for an alternative reason. See Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003). After carefully reviewing the record, we find that Martinez and Trevino do not affect Middlebrooks’s habe-as claims because these claims were either (1) defaulted on post-conviction appeal; (2) defaulted on appeal to our court; or (3) resolved’ on the merits in state court and our prior opinion.

a. Claims 9a and 9b

Following the district court’s initial denial of Middlebrooks’s habeas petition, we granted a COA to address four of Middle-brooks’s ineffective-assistance claims. Middlebrooks, 619 F.3d at 535. Middlebrooks argues that two of the claims that we addressed in our prior opinion — Claims 9a and 9b — fall under the rule of Martinez-Trevino. Appellant Br. at 47-49. We disagree.

' Claim 9a of Middlebrooks’s habeas petition asserts that his counsel was ineffective in failing to investigate and present evidence of Middlebrooks’s brain damage. Appellant App. at 171. Claim 9b alleges that Middlebrooks’s trial counsel was ineffective in “failing] to investigate Mr. Middlebrooks’s history of severe physical and sexual abuse.” Id. at 174; see also Middlebrooks, 619 F.3d at 637. In denying Mid-dlebrooks relief on the basis of these claims, our prior opinion held that Middlebrooks procedurally defaulted both of these issues by “fail[ing] to offer any authority in support ... on postconviction appeal” to the Tennessee Court of Criminal Appeals. Middlebrooks, 619 F.3d at 535-36. Specifically, Middlebrooks failed to comply with Tennessee Court of Criminal Appeals Rule 10(b), which states that “[tissues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived.” Id. at 535-36 (quoting Tenn. Ct. Crim. App. R. 10(b)). Middlebrooks raised his trial counsel’s failure to investigate his brain damage and his trial counsel’s failure to investigate his history of abuse “in an addendum to his appellate brief,” but Middlebrooks provided no further argument or citations., Id. at 536, 538. The Tennessee Court of Criminal Appeals accordingly held that Middlebrooks/waived these claims. Id. at 536, 538; see also Middlebrooks, 2003 WL 61244, at *12.

Significantly, the Martinez-Tremno exception does not apply to save procedural defaults that occur in “appeals from initial-review collateral proceedings.” Martinez, 132 S.Ct. at 1320; see West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015). “[Attorney error at state postconviction appellate proceedings cannot excuse procedural default under the Martinez-Tremno framework.” West, 790 F.3d at 699.

Had Middlebrooks not procedurally defaulted on Claims 9a and 9b at the appellate stage of his initial state post-conviction review, habeas relief on these claims would still be inappropriate under Martinez-Tre-mno because both were presented on initial state postconviction review and rejected by the court on the merits. Habeas relief is thus not warranted for Claims 9a and 9b because those claims were raised and rejected on the merits by the initial postconviction court, and ineffective assistance of counsel on post-conviction appeal cannot establish “cause” to excuse Middle-brooks’s procedural default, which occurred only in the Tennessee Court of Criminal Appeals. For those reasons, Martinez and Trevino do not apply to Claims 9a or 9b.

b. Middlebrooks’s Remaining Claims

The district court did not discuss the substantiality of Middlebrooks’s remaining twenty-four claims of ineffective assistance that were not included in the COA that we granted in Middlebrooks’s initial appeal. The state argues that, because we denied a COA for these claims, we have already determined that these claims were not “substantial” within the meaning of Martinez, and thus relief is not warranted. Appellee Br. at 25-27. Middlebrooks contends, by contrast, that it was error for the district court not to address these claims and that remand is appropriate for the district court to address the “substantiality” of these claims in the first instance. Appellant Br. at 51-52.

We need not decide whether our previous denial of a COA sufficiently determines the “substantiality” of these claims. Here, the record establishes that none of Middlebrooks’s remaining claims.fall under the Martinez-Trevino rule, even if the underlying’ ineffective-assistance-'of-trial counsel claim is deemed “substantial” We consider each of Middlebrooks’s remaining claims below.

i. Claims Relating to Trial Counsel’s Failure to Present Evidence of Mid-dlebrooks’s Mental Illness and Brain Damage

Middlebrooks’s habeas petition presents several claims relating to his trial counsel’s “failure] to investigate and present evidence of mental illness and brain damage,” including Claims 9g, 9j, and 9cc. Appellant App. at 176, 178-79; see Appellant Br. at 52. As the government argues, however, these claims are cumulative of Claim 9a of Middlebrooks’s habeas petition, which alleges that "[tjrial counsel failed to investigate and present evidence of Donald Middlebrooks’s seizure disorder to the jury, failed to investigate and present evidence that Donald Middlebrooks does in fact suffer severe mental illness ... and failed to investigate and present evidence ... that Donald Middlebrooks suffers brain injury and/or brain dysfunction.” Appellant App. at 171; see Appellee Br. at 28. As discussed above, we determined in our prior opinion that Middlebrooks defaulted Claim 9a on post-conviction appeal to the Tennessee Court of Criminal Appeals. Middlebrooks, 619 F.3d at 535-36. Because these additional claims duplicate Claim 9a, Middlebrooks is similarly not entitled to relief on these claims.

ii. Claims Relating to Trial Counsel’s Failure to Present Evidence of Brew-ington’s Relative Culpability

Middlebrooks also raises several claims that his trial counsfel was ineffective in failing to make arguments or develop evidence relating to the relative culpability of his co-defendant Brewington, including Claims 9c, 9d, 9q, 9gg, and 9ii, See Appellant Br. at 61. These claims are duplicative of Claim 9hh of Middlebrooks’s federal habeas petition, however, which alleges that “[t]rial counsel failed to recognize, investigate, pursue, develop and present mitigating evidence regarding co-defendant Brewington’s relative dominance over Donald Middlebrooks.” Appellant App. at 179. “[T]he Tennessee Court of Criminal Appeals resolved this claim on the merits on postconviction review,” concluding that Middlebrooks could not establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Middlebrooks, 619 F.3d at 538-39. We held in our prior opinion that, “[constrained by AEDPA, we must affirm because we cannot say that the state court’s application of Strickland’s prejudice prong was unreasonable.” Id. at 541. Because Claims 9c, 9d, 9q, 9gg, and 9ii are cumulative of Claim 9hh — a claim that was not defaulted on initial-review collateral proceeding but rather was determined on the merits — Martinez-Trevino does not apply, and Middlebrooks is not entitled to relief or further evidentiary development on the basis of these claims. See Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013).

We note that Claim 9c, which faults counsel for “failing] to argue to the jury that the death sentence was improper where Roger Brewington only received a life sentence,” is the most distinctive of these claims (as it contends that counsel failed to make a specific sentencing argument to the jury), and that a colorable argument could be made that 9c was therefore not. considered by the state court. In that scenario, we would remand Claim 9c to the district court for analysis of whether the claim is substantial under Martinez. We conclude that remand on Claim 9c is unnecessary, because even if Claim 9c is determined to be substantial, we are convinced by the record in its entirety and the arguments raised in and rejected by the initial post-conviction court that any failure of trial counsel to argue for a lesser sentence as contemplated by this claim did not prejudice Middlebrooks because there is not a reasonable probability that counsel’s failure to make the argument affected the outcome of his sentencing. .

iii. Claims Relating to Trial Counsel’s Failure to Prepare Defense Expert Dr. Smalldon

Middlebrooks’s habeas petition raised numerous claims relating to trial counsel’s failure to communicate with Dr. Smalldon and adequately prepare for his testimony, including Claims 9k and 91. See Appellant Br. at 52. The record demonstrates, however, that these claims are cumulative of Claim 9e of Middlebrooks’s habeas petition, which asserts that .“[t]rial counsel failed to adequately prepare for the testimony of its expert, Dr. Jeffrey Smalldon.” Appellant App. at 176. We explained in our prior opinion that Middlebrooks abandoned Claim 9e on appeal to our court because Middlebrooks presented no argument in his opening brief and failed to raise any argument on reply, even after the state addressed Middlebrooks’s omission. Middlebrooks, 619 F.3d at 538. Accordingly, because Claims 9k and 91 duplicate a claim that Middlebrooks abandoned on appeal to our court, Martinez and Trevino do not apply.

iv. Claim Relating to Trial Counsel’s Failure to Object to the Victim’s Mother at the Prosecution Table

Claims 9s and 9nn of Middlebrooks’s petition allege that trial counsel was ineffective for fading “to make sufficient objections to the presence of the mother of the victim at counsel table for the prosecution and to her behavior at trial,” and for failing to argue this on direct appeal. Appellant App. at 177, 182-83; see Appellant Br. at 64. A review of the record establishes that Middlebrooks raised the issue of the victim’s mother sitting at the prosecution table in his initial-review proceedings in Tennessee state court: this claim was labeled as Claim (9)(n) in his state post-conviction petition. Appellee App. at 9. Middlebrooks included Claim (9)(n) in the addendum that he filed in the Tennessee Court of Criminal Appeals, but presented no additional argument or citations. Id. at 105. Because these claims were considered and rejected on the merits by the initial state post-conviction court, Martinez and Trevino cannot apply to cure any procedural default that may have occurred át the state appellate court.

v. Claim Relating to Trial Counsel’s Failure to Suppress Middlebrooks’s Statements to the Police

Claim 9r of Middlebrooks’s habeas petition contends that trial counsel was ineffective in “fail[ing] to investigate and develop appropriate evidence to suppress Donald Middlebrooks’s statements to the police.” Appellant App. at 177; see Appellant Br. at 67. Like the claim described above, however, this claim was included in Middlebrooks’s initial post-conviction motion in state trial court: Middlebrooks labeled this claim in his state-court petition as Claim (9)(m). Appellee App. at 9. As with the claim discussed above, this claim was considered and rejected on the merits by the initial post-conviction court, and Martinez and Trevino do not apply to the failure to preserve this claim on appeal.

vi.Claim Relating to Trial Counsel’s Failure to Request Jury Instruction

. Claim 9mm(6) of Middlebrooks’s habeas petition alleges that trial counsel was ineffective in failing to request a contemporaneous jury instruction regarding Middle-brooks’s lack of remorse. Appellant App. at 182; see Appellant Br. at 68. A review of the record demonstrates that Middle-brooks included this claim in his initial post-conviction petition in state trial court, labeled as Claim (9)(hh)(vi). Appellee App. at 14. Like the two claims above, this claim is not affected by Martinez-Trevino.

vii.Claims Relating to Trial Counsel’s Failure to Strike Jurors or Appropriately Charge Jurors

Middlebrooks’s habeas petition also raises several claims relating to trial counsel’s ineffectiveness for failing to strike various jurors, including Claims 9w and 9y, in addition to both claims labeled 9x. Appellant App. at 178; see Appellant Br. at 71. These claims were presented in his initial post-conviction petition in state-trial court, however, as Claims (9)(r) and (9)(hh)(viii). Appellee App. at 9, 14. The same is true for Claim 9t of Middle-brooks’s federal habeas petition, which asserts that “[tjrial counsel failed to object to charging the jury pursuant to the statutory language regarding mitigating circumstances.” Appellant App. at 177; see Appellant Br. at 74. This was presented in Middlebrooks’s initial petition as (9)(o), see Appellee App. at 9. Like the claims discussed above, this claim is not saved by Martinez-Trevino.

Significantly, in concluding its initial post-conviction opinion, the state court stated, “[t]he Court has considered all the other grounds set forth in the petition and finds them without merit. They are grounds previously determined or grounds upon which no proof was offered," State Ct. Mem. & Order at 28,

Accordingly, after careful review of the record, we find that Middlebrooks’s remaining claims were either resolved on the merits, defaulted in post-conviction appeal, or defaulted on appeal to this court, and thus Middlebrooks is not entitled to habeas relief pursuant to Martinez and Trevino.

B. Middlebrooks is Not Entitled to Relief Under the Eighth Amendment

Middlebrooks next contends that our prior opinion failed to address his Eighth Amendment argument — Claim 13(c) in his federal habeas petition — that the prosecution violated Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Payne v. Tennessee, 501 U.S. 808, 830 n.2, 111 S.Ct, 2597, 115 L.Ed.2d 720 (1991), by arguing in its closing argument for the jury to impose the death penalty “based upon the wishes of the victim’s mother.” Appellant Br. at 82. We note that this is the third time that Middlebrooks has presented his Booth argument to our panel. Middlebrooks argued that Booth entitled him to relief in his appeal from the district court’s initial denial of his habeas petition. See 2009 Appellant Br. at 64; 2009 Reply Br. at 19. Following our 2010 opinion, Mid-dlebrooks argued in a petition for panel rehearing that we incorrectly addressed his Eighth Amendment claim. We denied Middlebrooks’s petition for panel rehearing on February 1, 2011. See Middlebrooks v. Bell, 619 F.3d 526 (6th Cir.2011) (unpublished order). We find no error in our prior panel decision.

On direct appeal in state court, Middle-brooks argued that the prosecutor improperly “emphasized] the victim’s family’s desire that the death penalty be returned,” State v. Middlebrooks, 995 S.W.2d at 557. Middlebrooks contended “that the misconduct violated his right to due process and led to arbitrary and unreliable sentencing in violation of the Eighth and Fourteenth Amendments to the United States Constitution,” in addition to the Tennessee Constitution. Id. “[T]he Tennessee Supreme Court concluded that [the prosecutor’s] statements were improper but that they did not require reversal because they did not affect the jury’s verdict.” Middlebrooks, 619 F.3d at 543 (citing Middlebrooks, 995 S.W.2d at 557-61). Our prior opinion reviewed whether the state court unreasonably applied Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), which establishes the standard for determining whether a prosecutor’s “comments were flagrant enough to violate” the defendant’s due-process rights. Middlebrooks, 619 F.3d at 543. We held that the Tennessee Supreme Court did not unreasonably apply federal law. Id. at 544.

Middlebrooks contends that the Tennessee Supreme Court’s decision was contrary to Booth and Payne and that our opinion erroneously ignored the Eighth Amendment in applying Darden and the due-process clause. Apellant Br. at 82, 86-87. We disagree. The Supreme Court in Booth evaluated the constitutionality of admitting a “Victim Impact Statement” into evidence at a capital sentencing hearing; the impact statement at issue contained two types of information: “[f]irst, it described the personal characteristics of the victims and the emotional impact of the crimes on the family,” and “[s]econd, it set forth the family members’ opinions and characterizations of the crimes and the defendant.” Booth, 482 U.S. at 502, 107 S.Ct. 2529. The Supreme Court held that the admission into evidence of both types of information violated the Eighth Amendment. Id., at 507-09, 107 S.Ct. 2529. The Court revisited its holding in Booth a few years later in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), holding that “if the State chooses to permit the admission of victim impact evidence ..,, the Eighth Amendment erects no per se bar.” Instead, “[i]n -the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Id. at 825, 111 S.Ct. 2597 (citing to Darden, 477 U.S. at 179-83, 106 S.Ct. 2464). We have observed that the Court noted that its decision in Payne “overturned only that part of Booth that disallowed ‘evidence ... relating to the victim and the impact of the victim’s death on the victim’s family,’ ” but thai; it was not disturbing the “portion of Booth that forbids ‘a victim’s family members’ characterization and opinions about the crime, the defendant, and the appropriate sentence’ ” from being admitted into evidence. Fautenberry v. Mitchell, 515 F.3d 614, 638 (6th Cir. 2008) (quoting Payne, 501 U.S. at 830 n.2, 111 S.Ct. 2697).

Middlebrooks argues that because Payne did not disturb Booth’s holding that the Eighth Amendment prohibits evidence of “a victim’s family members’ characterization and opinions about ... the appropriate sentence,” our earlier opinion in Middlebrooks failed to evaluate whether the Tennessee Supreme Court’s decision is contrary to Booth. Contrary to Middle-brooks’s argument, however, we appropriately applied Darden to the state court’s decision. In evaluating Middlebrooks’s argument on direct appeal, the Tennessee Supreme Court cited Booth and Payne, but recognized that evidence of the victim’s opinions about the crime was not admitted at Middlebrooks’s sentencing hearing, as was the case in Booth; instead, the prosecutor in Middlebrooks’s trial made improper statements during closing arguments. Middlebrooks, 995 S.W.2d at 558. The Tennessee Supreme Court evaluated Middlebrooks’s argument under a heading entitled “prosecutorial misconduct” and ultimately “conclude[d] that the prosecutor’s misconduct did not prejudicially affect the jury’s verdict” after applying its five-factor test for evaluating a prosecutor’s remarks. Id. at 557-60 (citing State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994)). We did not overlook or erroneously evaluate Claim 13(c) in our prior opinion; rather, because the prosecution had not introduced evidence at sentencing in violation of Booth, we dismissed Middlebrooks’s claims on the merits under AEDPA after determining that the state court did not unreasonably apply Darden, see Middlebrooks, 619 F.3d at 543-44, which is the relevant “clearly established Federal law” for evaluating whether a prosecutor’s improper statements during closing arguments “so infected the trial with unfairness so as to make the resulting conviction a denial of due process.” See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2153, 183 L.Ed.2d 32 (2012) (quoting Darden, 477 U.S. at 181, 106 S.Ct. 2464). Middlebrooks is not entitled to relief on this claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment denying Mid-dlebrooks’s petition for a writ of habeas corpus.

      . Claim 9g asserts that "[tjrial counsel failed to move for expert assistance, including, but not limited to, a neuropsychologist who could have addressed the issue of brain damage and its effect upon Donald: Middlebrooks.” Appellant App. at 176.

      . Claim 9j states that “[tjrial counsel failed to adequately investigate the mental state of the petitioner including neurological impairment.” Id.

      ; Claim 9cc asserts that "[tjrial counsel failed to move for expert assistance of a neurologist who could have conducted necessary testing and provided expert testimony regarding the issue of brain damage and its effect upon Donald Middlebrooks." Id. at 178-79.

      . Claim 9c contends that "[tjrial counsel failed to argue to the jury that the death sentence was improper where Roger Brew-ington only received a life sentence,” Id. at 175.

      . Claim 9d alleges that "[tjrial counsel failed to recognize, investigate, pursue, develop, and present mitigating evidence regarding co-defendant Roger Brewington's relative dominance over Donald Middlebrooks, especially in light of Mr. Middlebrooks’s brain damage and neurocognitive dysfunction.” Id. at 175-76.

      . Claim 9q states that “[tjrial counsel failed to adequately investigate and present evidence of the culpability of the two co-defendants and the effect they had on the mental state of Donald Middlebrooks,” Id. at 177.

      . Claim 9gg asserts that "[tjrial counsel failed to adequately investigate and present evidence of the relative involvement of the two co-defendants — at the guilt/innocence stage of the first trial and the sentencing stage of the first and second trials.” Id. at 179.

      . Claim 9ii provides that, "[t]rial counsel failed to present the following mitigating evidence related to co-defendant Brewing-ton. ...” Id. at 179-81.

      . Claim 9k asserts that '‘[t]rial counsel failed to adequately communicate with the defense expert and supply him with appropriate and accurate information concerning the background, mtental and neurological state of Donald Míddlébrooks.” Id. at 176.

      . Claim 91 provides that "[t]rial counsel failed to sufficiently communicate with and prepare the defense expert witness for testimony at trial.” Id.

      . Middlebrooks’s brief does not specifically address Claims 9o, 9dd, and 9ee of his federal habeas petition, although Middlebrooks includes these claims in his list of claims that he contends are "worthy of further proceedings under Martinez." See Appellant Br. at 51. A review of the record demonstrates that these claims also duplicate Claim 9e. See Appellant App. at 177, 179. Thus, even if Middlebrooks has not waived arguments relating to these claims, he is not entitled to relief under Martinez-Trevino for the same reason that he is not entitled to relief on claims 9k and 91.

      .Claim (9)(n) of Middlebrooks's state petition alleges trial counsel's “failure to make sufficient objections to the presence of the mother of the deceased at the prosecution counsel table and her predictable subsequent behavior at trial.” Appellee App. at 9.

      . Claim (9)(hh) of Middlebrooks's state petition provides that trial counsel was ineffective for "failing] to timely object and/or preserve or present the following issues for direct appeal ... (vi) no contemporaneous jury instruction regarding Detective Moore's characterization of Petitioner's lack of remorse.” Appellee App. at 14.

      . Claim 9w states that "[tjrial counsel failed to adequately voir dire the jury to determine whether each juror had any opinions which would substantially interfere with his or her ability to follow the law. Appellant App, at 178.

      . Claim 9y provides that "[tjrlal counsel failed to strike juror Margolis where he stated that he would impose the death sentence if the defendant could be paroled,” Id,

      , The claims labeled as Claim 9x contend that ''[djuring voir dire, trial counsel failed to follow up on issues presented by the jury questionnaire, including but not limited to, inquiring of the juror Cummings concerning her relationship to a police officer” and ''[tjrial counsel failed to strike juror Moore, given her religious instruction concerning the death penalty ,,. and her improper view of deterrence as a basis for imposing the death sentence.” Id.

      . Claim (9)(r) asserts that trial counsel "fail[edj to adequately voir dire the jury to determine whether each juror had any opinions which would substantially interfere with his or her ability to follow the law,” Appellee App. at 9.

      . Claim (9)(hh) states that trial counsel "fail[edj to timely object and/or preserve or present the following issues for direct appeal ..! (viii) the trial court's errors in failing to remove jurors for cause, as requested by the defense.” Id. at 14.

      . Claim (9)(o) of Middlebrooks’s state petition contends that trial counsel ”fail[ed] to object to charging the jury pursuant to the statutory mitigation language which, in effect, prevented the jury from listening to and giving effect to all mitigation evidence." Id. at 9.


source: Caselaw Access Project

author: SUTTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Matthew Otis CHARLES, Defendant-Appellee.
    No. 15-6074
    United States Court of Appeals, Sixth Circuit.
    Argued: December 1, 2016
    Decided and Filed: December 19, 2016

      ARGUED: Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant. Anne-Marie Moyes, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant. Anne-Marie Moyes, Mariah A. Wooten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Ap-pellee.
    Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

Matthew Charles sought and obtained a reduced sentence under guidelines amendments 706 and 750, which lowered the recommended sentencing ranges for crack cocaine offenses. Charles acknowledges that, if the original sentencing court found him to be a career offender, these amendments would not decrease his guidelines range and thus would not permit a sentence reduction. Because a panel of this court previously held that Charles was a career offender on his direct appeal, we reverse.

Twenty years ago,'a jury found Charles guilty of several drug and firearm offenses, including conspiracy to distribute crack cocaine and unlawful distribution of crack cocaine. 18 U.S.C. § 841(a)(1); 21 U.S.C. § 846. The presentence report found that Charles’ total offense level was 38 points, due to the quantity of crack cocaine (216 grams), a two-point enhancement for obstruction of justice (U.S.S.G. § 3C1.1), and a two-point firearm enhancement (U.S.S.G. § 2Dl.l(b)(l)). The report found that Charles had 17 criminal history points, resulting in a criminal history category of VL The report added that Charles “appears to meet the criteria for both career offender and armed career criminal.” App. R. 6 at 15-16. After factoring in these adjustments, the report listed a sentencing range of 360 months to life and recommended a sentence at the low end of that range.

Charles objected to the amount of cocaine used in the guidelines calculation, the enhancement for obstruction of justice, and the firearm enhancement. He did not object to the report’s classification of him as a career offender or an armed career criminal.

The district court adopted the factual findings of the presentence report. The court also adopted the recommended guidelines range of 360 months to life, but varied upward and imposed a 420-month sentence based on Charles’ background and misconduct. Charles appealed, and we affirmed. We determined on appeal that the sentencing court had concluded that Charles was a career offender, and that this determination mooted any challenge to the quantity of drugs used in calculating his sentence. United States v. Charles, 138 F.3d 257, 268 (6th Cir. 1998).

Ten years later, the Sentencing Commission retroactively amended the sentencing guidelines to lessen the disparity between penalties for crack and powder cocaine offenses. See U.S.S.G. Manual app. C, amend. 706 (effective Nov. 1, 2007); id., amend. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). The amendment reduced the guidelines range otherwise applicable to Charles’ drug crimes.

In 2008, Charles moved for a sentencing reduction. See 18 U.S.C. § 3582(c)(2). The goyernment opposed the reduction on the ground that Charles was a career offender. The district court did not act on the motion. In 2010, Congress again amended and lowered the guidelines for crack cocaine offenses. See U.S.S.G. Manual app. C, amend. 750 (effective Nov. 1, 2011); id., amend. 759 (effective Nov. 1, 2011) (making Amendment 750 retroactive). Charles filed a second § 3582(c)(2) motion in October 2011, this time relying on Amendment 706 and the newly promulgated Amendment 750. The district court did not rule on the motion. Charles submitted a letter to the court in January of 2013, seeking resolution of his first or second motion. Three more months passed, and Charles filed a third § 3582(c)(2) motion. In June 2013, Charles sent yet another follow-up letter. In April 2014, the court asked the government to respond to Charles’ second and third motions. The government once again opposed the reduction on the ground that Charles was a career offender. The court nonetheless granted Charles’ third motion and reduced his sentence from 420 to 292 months.

The government appealed.

Federal courts as a general matter may not modify an individual’s term of imprisonment. 18 U.S.C. § 3582(c). But that black-letter principle yields to some exceptions. One of them applies,when the term of imprisonment is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” the body empowered to promulgate the Sentencing Guidelines. 18 U.S.C. § 3582(c)(2); see 28 U.S.C. §§ 991, 994(a). In that setting, the court may reduce the sentence if the “reduction is consistent with” applicable Commission policy statements. 18 U.S.C. § 3582(c)(2). The policy statements in turn say that resentencing is not appropriate where the amendment “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). In making a reduction, the court may address only the amended guideline; it may not alter other sentencing rulings. Id. § lB1.10(b)(l).

Charles’ motion hinges oh his original sentence and direct appeal and whether he has already been deemed a career offender. If he is a career offender, all agree that the amendments would have no effect, and he would not be eligible for a reduction. If the district court relied only on the crack cocaine guidelines in sentencing him originally, and did so without deciding whether he was a career offender, we would need to decide whether applying the designation now would impermissibly alter that court’s “guideline application decisions.” U.S.S.G. § 1B1.10(b)(1).

The short answer is that our court has already ruled on the point. In Charles’ direct appeal, we determined that the original sentencing court found Charles was a career offender. Charles, 138 F.3d at 268. That makes him ineligible for this sentencing reduction and requires us to reverse the district court’s contrary decision.

The long answer adds these details. In his direct appeal to this court, Charles argued that the district court erred in the amount of drugs it attributed to him. A panel of this court responded that the disputed drug quantity would affect Charles’ sentence only if he was not a career offender. It then determined that “[t]he district court [had] found that Charles met all three criteria and qualified as a career offender as a result of his multiple prior felony convictions.” Id. It thus concluded that, “[bjecause the sentence range would be identical even if this court adopted Charles’ assertions on the proper amount of drugs he sold, any calculation errors on the part of the district judge would constitute harmless error.” Id. Charles did not file a petition for rehearing in this court or a petition for a writ of certiorari in the Supreme Court.

That ruling was binding on the district court in later phases of the case. If it is important for courts to treat like matters alike in different cases, it is indispensable that they “treat the same litigants in the same case the same way throughout the same dispute.” Bryan A. Garner et al., The Law of Judicial Precedent 441 (2016). Known as the law of the case, this doctrine mandates that the district court adhere to rulings of the appellate court issued earlier in the case. Howe v. City of Akron, 801 F.3d 718, 739 (6th Cir. 2015). In this instance, there is no dispute that our court held on direct appeal that “[t]he district court found that Charles met all three criteria and qualified as a career offender.” Charles, 138 F.3d at 268. That decision was binding on the district court and precluded -Charles from obtaining a reduction in his sentence under § 3582(c)(2).

Like many rules, this one has exceptions. Courts need not adhere to the law of the case in the face of an intervening change in law, new evidence, or a manifest injustice. Howe, 801 F.3d at 741; see Garner, supra, at 480-89. But none of these exceptions applies here. There is no intervening law about the meaning of a career offender as it applies to sentencing reductions, and indeed Charles points to none. There is no new evidence about whether Charles was a career offender, and indeed Charles points to none. And it would not be a miscarriage of justice to treat Charles as a career offender based on the law in existence in 1996. Consider some of the description's of Charles’ many prior offenses: kidnapping a woman on two consecutive days “for the purpose of terrorizing her”; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car. App. R. 6 at 16-21.

Not even Charles, it’s worth pointing out, originally thought his treatment as a career offender would be unfair (or for that matter a manifest, injustice). Even after the presentence report said that .“Charles is a career criminal,” id. at 5, Charles did not object to his career-offender status during sentencing, and he objected to the introduction of his prior convictions only as somehow irrelevant but not as wrongly described. Nor did Charles challenge our court’s decision on direct appeal, even though it rested on his status as a career offender. Charles, notably, did not object to his career offender status until March of 2013—almost 17 years after the initial presentence report and only after the Sentencing Commission’s 706 and 750 Amendments, On, top of all that, Charles has admitted that he was a career offender in numerous filings, including a letter submitted as late as June of 2013. On this record, it assuredly does not work a manifest injustice to accept this court’s prior determination (and Charles’ prior admissions) that Charles is (and was determined at sentencing to be) a career offender.

Charles argues that the government forfeited this argument by not making it below. We disagree. Time and time again, the government responded to Charles’ § 3582(c)(2) motions for a sentencing reduction by saying he was not eligible for it because he was a “career offender.”

In its first filing below in response to Charles’ § 3582(c)(2) motion, the government said: “The defendant is a career offender. The defendant’s motion should be denied because the amendments to the crack sentencing guidelines do not have the effect of lowering the defendant’s guideline range, which remains 360 months to life.... Amendment 706 did not change the career offender guideline.” R. 168 at 4. It closed this portion of its brief in much the same way, emphasizing that, “[a]s a career offender,” Charles’ “guidelines range remains unchanged at 360 months to life.” Id. at 5. “Because the amendment to subsection (c) does not have the effect of lowering [his] applicable guidelines range,” it concluded, “a reduction in [Charles’] term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2).” Id,

In its second filing below, it said more of the same. “[T]he court,” the government argued, does not have authority “to resen-tence the defendant under 18 U.S.C. § 3582(c) because the amendments do not have the effect of lowering [Charles’] guidelines range.” R. 170 at 2. “As discussed, ... [Charles] is a career offender, and the amendments to the U.S.S.G. did not change' the career offender guidelines .... [H]is guidelines range is 360 to life when combined with a total offense level of 38 or 37. Thus Amendment 706 would have had no effect on [his] status as a- career offender, and would not have changed the sentencing range applicable to him.” Id. at 2 n.3.

By the time of its third filing below, any pretense of suspense about the government’s position was gone. No surprise, it said - the same thing again: “Because [Charles] is a career offender and was sentenced as such; and because the FSA unquestionably does not lower [his] guidelines range, [Charles’] motions for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) should be denied.” R. 181 at 4.

Charles’ § 3582(c)(2) filings, notably, admit explicitly in some places and implicitly in others that he is a career offender. His initial reply brief states: “Charles qualifies as a career offender.” R. 169 at 5. His sur-sur-reply follows the same line, admitting that his sentencing range is 360 months to life even after the amendments. In Charles’ second motion, he says that “[t]he Court based [his] sentence off of several factors such as the relevant drug amount ... and career offender classification.” R. 173 at 1 (emphasis added). And he acknowledges that “the Sixth Circuit Court of Appeals denied [his] arguments based on the career offender designation.” Id. at 1-2. And in Charles’ January 2013 letter to the court, he acknowledges his status as a career offender, closing with a request that the court reduce his sentence to correspond with the “216 grams of crack cocaine and career offender classification.” R. 175 at 2 (emphasis added).

Charles claims that the government forfeited the law-of-the-case argument because it did not cite our prior ruling that the original sentencing court found him to be a career offender. In one of its responses to Charles’ motion for a reduction in sentence,- the government said that the “Defendant appealed his convictions and sentence, and the Court of Appeals affirmed the judgment in 1998.” R. 181 at 2. At any rate, a missed citation to legal authority does not establish a forfeiture of an argument. The key point is that the government argued that Charles had already been found to be a career offender, which sufficed to reject his § 3582(c)(2) motion. The failure to cite additional authority for a point doe's not a forfeiture make, particularly in view- of Charles’ admissions about that point, one of which mentioned the’very prior' decision that governs the issue. See Leonor v. Provident Life & Acc. Co., 790 F.3d 682, 687 (6th Cir. 2015); Dixon v. ATI Ladish LLC, 667 F.3d 891, 895 (7th Cir. 2012).

Charles, last of all, claims that, even if this court held that he was a career offender on direct review, he is not — in truth — a . career offender. But a § 3582(c)(2) motion is not the proper vehicle for making,such an argument. U.S.S.G. § lB1.10(b)(1); United States v. Hunter, 427 Fed.Appx. 469, 472 (6th Cir. 2011). If Charles wishes to pursue a challenge to his career offender designation on the basis of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), or any other case, he must use a § 2255 motion for doing so.

For these reasons, we vacate the district court’s judgment and remand for purposes of entering an order that rejects Charles’ § 3582(c)(2) motion.


author: SYKES, Circuit Judge. POSNER, Circuit Judge,

text:
    Barry EPSTEIN, Plaintiff-Appellant, v. Paula EPSTEIN and Jay Frank, Defendants-Appellees.
    No. 15-2076
    United States Court of Appeals, Seventh Circuit.
    Argued December 10, 2015
    Decided December 14, 2016

      Nejla Lane, Attorney, Lane Keyfli Law, Ltd., Chicago, IL, for Plaintiff-Appellant.
    Scott A. Schaefers, Attorney, Brotschul Potts, Chicago, IL, for Paula Epstein.
    Norman J. Barry, Jr., Attorney, Karen Kies DeGrand, Attorney, Donohue, Brown, Mathewson & Smyth, Chicago, IL, for Jay Frank.
    Before POSNER, MANION, and SYKES, Circuit Judges,
   SYKES, Circuit Judge.

Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. The action arises from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating emails between Barry and several other women. Her discovery response spawned this satellite litigation (the divorce action is.still pending), Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula’s divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings.

We affirm in part and reverse in part. The complaint doesn’t state a Wiretap Act claim against Paula’s lawyer. The lawyer can’t be liable for disclosing Barry’s own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.

I. Background

We take the following factual account from the amended complaint, accepting it as true for present purposes. Paula and Barry Epstein married in 1970, In 2011 Paula filed for divorce in Cook County Circuit Court, accusing her husband of infidelity. The divorce case has dragged on since then and remains unresolved. During discovery Barry’s lawyer sent Paula’s lawyer a document request asking for production of “[a]ny and all communications, documents, e-mails, text messages, photographs, notes, credit card slips, bank statements, or other document whatsoever, which allegedly relate[ ] to [Paula’s allegation of] infidelity.”

Jay Frank was Paula’s lawyer. In response to this document request, he produced (among other things) copies of email correspondence between Barry and several women. On the face of it, the messages seem to have been forwarded from Barry’s email accounts to Paula’s. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a “rule” on his email accounts automatically forwarding his messages to her,

With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C. § 2520, which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry’s emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Copies of some of the intercepted emails were attached to the complaint as exhibits.

Paula and Frank separately moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Both argued that intercepting an email doesn’t violate the Wiretap Act unless the acquisition occurs contemporaneously with the email’s transmission. The emails attached to the complaint bear date and time markings showing that they may not have been intercepted contemporaneously with their transmission. The defendants argued that this date and 'time information was enough by itself to defeat Barry’s Wiretap Act claim. Frank also argued that he can’t be liable under the Act for disclosing Barry’s own emails to him in response to his own discovery request in the divorce proceeding.' The judge agreed with these arguments and dismissed the Wiretap Act claims against both, defendants.

II. Discussion

• The Wiretap Act makes it unlawful to “intentionally intercept ] [or] endeavor[] to intercept ... any wire, oral, or electronic communication.” 18 U.S¡C. § 2511(l)(a). The Act also prohibits the intentional “disclos[ure]” or “use[ ]” of the contents of an unlawfully intercepted electronic communication. Id. § 2511(l)(c), (d). “[Intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication.” Id. § 2510(4). “[Electronic communication,” in turn, is “any transfer of signs ... of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” Id. § 2510(12).

The parties’ briefs are largely devoted to a debate about whether the Wiretap Act requires a “contemporaneous” interception of an electronic communication — that is, an interception that occurs during transmission rather than after the electronic message has “come to rest bn a computer system,” United States v. Szymuszkiewicz, 622 F,3d 701, 703 (7th Cir. 2010). Several circuits have held that the Wiretap Act covers only contemporaneous interceptions — understood as the act of acquiring an electronic communication in transit— rather than the acquisition of stored electronic communications, which is addressed by the Stored Communications Act. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); Steve Jackson Games, Inc. v. Secret Serv., 36 F.3d 457 (5th Cir. 1994). We noted this trend in Szymuszkiewicz but had no occasion to decide whether we agreed. 622 F.3d at 705-06. We do not need to take a position today. Even if the Wiretap Act covers only contemporaneous interceptions, Barry has stated a Wiretap Act claim against Paula, and dismissal of the claim against her was error. ’

The amended complaint alleges that Paula’s interception of his emails “was contemporaneous with the transmission insofar as the electronic messages destined for [Barry] were forwarded to [Paula] at the same time they were received by [Barry’s email] servers.” The defendants insist that the emails attached to the complaint decisively show that the interception was not contemporaneous.

A plaintiff can “plead himself out of court by pleading facts that show that he has no legal claim.” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). This can occur when the complaint includes “facts that establish an impenetrable defense to its claims.” Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008)). Put slightly differently, “[a] plaintiff pleads himself out of court when it would be necessary to contradict the complaint in order to prevail on the merits.” Id. Although the defendants strenuously argue otherwise, the emails attached to the complaint do not conclusively defeat Barry’s allegation that Paula intercepted his emails contemporaneously with their transmission.

The emails appear to come from one of Paula’s email clients. Those that were sent from Barry’s account to the other women show the time his email client sent the message; the emails he received from the other women show the time his email client received the message. Each email also shows the time Paula’s email client received the forwarded message from Barry’s account. The district judge read these “sent” and “received” markings in the defendants’ favor, noting that there are gaps between the time Barry sent or received an email and the time Paula received the forwarded email. The judge observed that “[t]he shortest interval between an original email[] and the email forwarding it to Paula’s account[] is approximately three hours.” Although this reasoning seems Sensible on its face, there are three independently sufficient reasons why the time markings on the emails do not establish an “impenetrable defense” to the Wiretap Act claims.

First, the judge misunderstood when an interception occurs. He assumed that the time Paula’s email client received the forwarded emails was the moment of interception. Although this interpretation of “interception” is understandable, we explained in Szymuszkiewicz that the interception of an email need not occur at the time the wrongdoer receives the email; in Szymuszkiewicz “[t]he copying at the server was the unlawful interception.” 622 F.3d at 704. Because Barry’s case was dismissed on the pleadings, we do not know how Paula’s auto-forwarding rule worked. For example, we cannot tell if a server immediately copied Barry’s emails — at which point the interception would be complete — even though Paula’s email client may not have received them until later.

Second, the judge mistakenly conflated the emails Barry received and those he sent. If we assume that the Wiretap Act prohibits only contemporaneous interceptions, the Act would apply to the acquisition of emails before they “cross[] the finish line of transmission,” which happens when their intended recipient actually receives them. United States v. Councilman, 418 F.3d 67, 80 (1st Cir. 2005) (en banc).

Putting aside the general problem of determining precisely when an interception occurs, for the emails Barry received from the other women, it seems reasonable to compare the time Barry received the message and the time the email was successfully forwarded to Paula. But that logic doesn’t apply to emails Barry sent to the other women. The time markings on those emails tell us nothing about when transmission of the emails was complete.- To know that we would need to know when the intended recipients — the women Barry was corresponding with — actually received the emails. The exhibit attached to the complaint includes a few email chains that do give this information, but for many of the emails Barry sent, it’s impossible to know when the intended recipients received them. Because these emails don’t conclusively establish when the transmissions were completed, it’s possible that they were intercepted contemporaneously.

Finally, it’s highly unlikely that the exhibit attached to the complaint contains all the emails that were forwarded to Paula’s email addresses. It’s difficult to imagine what filtering algorithm Paula’s auto-forwarding rule could have used that would have limited the interception to the small collection of email messages that are contained in the exhibit. Barry alleges that Paula’s auto-forward rule was in place for as long as five years; it’s more likely that these few dozen emails are only a small fraction of a much larger volume.

Because the emails attached to the complaint do not conclusively establish that there was no contemporaneous interception, Barry did not plead himself out of court. The judge was wrong to dismiss the case against Paula on this ground.

On the other hand, the claim against Frank (Paula’s lawyer) fails for an independent reason. The complaint alleges that Frank “disclosed and used” the contents of the intercepted communications in violation of § 2511(l)(c) and (d). More specifically, Barry advanced two alternative theories of liability against the lawyer: (1) Frank “disclosed” the contents of the emails when he produced them in response to the discovery request and (2) Frank “used” them in connection with the divorce litigation to embarrass Barry. The judge rejected both of these arguments and was right to do so.

The disclosure theory fails because Barry already knew the contents of the intercepted emails and indeed invited their disclosure by requesting them in discovery in the divorce action. The Wiretap Act doesn’t prohibit the interception of electronic communications with consent. See § 2511. It’s true that this provision does not explicitly address the effect of express or implied consent on an alleged unlawful “disclosure” or “use” (as distinct from an alleged unlawful “interception”). See United States v. Wuliger, 981 F.2d 1497, 1508 (6th Cir. 1992) (“The statute does not expressly provide a ‘consent to use’ exception to section 2511(l)(d).”). But to “disclose” something means “[t]o make (something) known or public; to show (something) after a period of inaccessibility or of being unknown; to reveal.” Disclose, Black's Law DictionaRY (10th ed. 2014). Frank did not publicly disclose Barry’s emails, and their content was hardly unknown to Barry. Accordingly, even if the emails were unlawfully intercepted, Frank did not unlawfully disclose their content by producing them in response to Barry’s discovery request. That Frank delivered the emails to Barry’s attorney and not Barry himself is irrelevant. Barry’s attorney was Barry for purposes of the response to the discovery request.

The use theory fails for a more prosaic reason: The complaint doesn’t identify any use Frank actually made of the emails. Rather, it alleges that Frank intended to use the emails to embarrass Barry during the divorce litigation — in cahoots with Paula and with the aim of extracting a favorable financial settlement. But the Wiretap Act does not prohibit inchoate intent.

Accordingly, we Affirm the judgment to the extent that it dismissed • the case against Frank. The amended complaint states a Wiretap Act claim against Paula; to that extent the judgment is Reversed, and the case is Remanded for further proceedings.

POSNER, Circuit Judge,

concurring.

I agree with Judge Sykes that under' the existing understanding of the Federal Wiretap Act Paula Epstein violated it if she searched her husband’s computer for evidence of adultery by him that she could use against him in divorce proceedings, without having obtained his consent to her accessing his computer. I write separately to raise a question that neither party addresses and is therefore not before us on this appeal — whether the Act should be thought applicable to such an invasion of privacy; for if not the husband’s suit should be dismissed.

. Obviously not all claims of privacy are or should be protected by law. Virtually every adult in a society such as ours values his or her privacy, but it doesn’t follow that privacy is always, or even primarily, a social good, which is to say a good that promotes social welfare. “Privacy” means concealment of facts about, a person. Often such concealment serves a social purpose — an example is concealing the fact that one is on the verge of inventing a new product or process that will be patentable and make the inventor wealthy; premature disclosure might enable competitors to exploit the invention to the detriment of the inventor, thus discouraging invention. But often the facts sought to be concealed in the name of privacy are facts that, being disreputable, would if disclosed publicly tarnish a person’s reputation and by doing so perhaps diminish his or her social and professional welfare and opportunities. The motive of concealment in such a case is understandable, but if the concealment is of genuine misconduct, I am unclear why it should be protected by the law. I don’t understand why law should promote dishonesty and deception by protecting an undeserved, a rightly tarnished, reputation.

Among the facts routinely attempted to be concealed for disreputable reasons is of course marital infidelity. -Mr. Epstein wanted to conceal his infidelity from his wife primarily it seems because the revelation of it would give her added leverage in a divorce proceeding. I don’t understand why federal, or for that matter state, law should protect an interest so lacking in any social benefit, especially when one considers that adultery remains a crime in 20 of the nation’s 50 states — including Illinois, see 720 ILCS 5/11-35, where the parties reside — though- it is a crime that is very rarely prosecuted. We might compare Mrs. Epstein to a bounty hunter — a private person who promotes a governmental interest. She has uncovered criminal conduct hurtful to herself, and deserves compensation, such as a more generous settlement in her divorce proceeding.

Her husband’s suit under the Federal Wiretap Act is more than a pure waste of judicial resources: it is a suit seeking' a reward for concealing criminal activity. Had the issue been raised in the litigation, I would vote to interpret the Act as being inapplicable to — and therefore failing to create a remedy for — wiretaps intended, and reasonably likely, to obtain evidence of crime, as in this case, in which the plaintiff invoked the Act in an effort to hide evidence of his adultery from his wife.

      . An email client is a computer program that is used to access and manage a user’s email The program can be installed directly on the user’s computer (like Microsoft Outlook) or can be a web application (like Gmail).

      , The suit also included a state-law claim against Paula for intrusion upon seclusion, but that claim is not important here.

      . These times are displayed down to the nearest minute.

      . Take, for example, one email that appears to have been forwarded by Barry from his business email account to his personal email account and also forwarded (perhaps from the Sent folder on Barry’s business account) to Paula. Paula’s email client appears to have received it two minutes after the message was forwarded from Barry’s business, email account to his personal account. Because it’s impossible to know when Barry’s personal account received the email, it is well within the realm of possibility that Paula received the forwarded email first. If so, Paula's acquisition of that email would be a contemporaneous interception: Paula would have received the email before its intended recipient did.

      . For the first tíme oh appeal Barry offers an additional theory: Frank "disclosed” the contents, of the emails to other members of his firm. This new theory is unsupported by the allegations in the amended complaint. We generally permit a plaintiff appealing a Rule 12(b)(6) dismissal to "elaborate on his factual allegations so long as the new elaborations are consistent with the pleadings.” Fed. R. Civ. P. 12(b)(6); Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). But this latitude is not unlimited. Barry took the opportunity to amend his complaint and could have included this allegation if there was an adequate factual basis for it.