author: .RONALD LEE GILMAN, Circuit Judge.

text:
    AMERICAN PREMIER UNDERWRITERS, INC.; American Financial Group, Inc., Plaintiffs-Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee.
    No. 15-3703
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: October 5, 2016

      ON BRIEF: Nathaniel R. Jones, Michael L. Cioffi, John P. Curp, Lori B. Nuckolls, BLANK ROME LLP, Cincinnati, Ohio, for Appellants. Pierre H. Berger-on, Rachael A. Harris, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, for Appellee.
    Before: GILMAN, GIBBONS, and STRANCH, Circuit Judges.
   OPINION

.RONALD LEE GILMAN, Circuit Judge.

American -Premier Underwriters, Inc. (APU) holds shares of stock in National Railroad Passenger Corporation (Amtrak) pursuant to the Rail Passenger Service Act of 1970 (RSPA), Pub. L. No. 91-518, 84 Stat. 1327. Under § 415(b) of the Amtrak Reform and Accountability Act of 1997 (ARAA), 49 U.S.C. § 24304 note, Amtrak was required to redeem all of its stock held by APU at fair market value by October 1,2002.

On May 19, 2008, APU filed a complaint against Amtrak, asserting seven claims based on Amtrak’s failure to redeem the stock. (American Financial Group, APU’s parent company and the beneficial owner of the stock at issue, is also a party to this lawsuit. We will refer to both entities collectively as APU.) The United States District Court for the Southern District of Ohio, in 2011, granted Amtrak’s motion to dismiss in its entirety. In 2013, this court upheld the dismissal of six of the claims and remanded for the district court to decide whether the statute of limitations barred the remaining claim. On remand, the district court concluded that the remaining claim was indeed barred and granted Amtrak’s motion to dismiss.

The parties agree that the applieáble statute of limitations is three years. On this second appeal, the sole issue is the proper accrual date for APU’s remaining claim. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

APU holds 5.2 million shares of Amtrak common stock. Section 416(b) of the ARAA mandated that “Amtrak shall, before October 1, 2002, redeem all common stock previously issued, for the fair market value of such stock.” In 2000, Amtrak proposed fulfilling this obligation by offering to redeem APU’s common stock for three cents per share. APU rejected Amtrak’s .offer on November 2, 2000. This offer, according to APU, was “de minimis” and did not adequately represent the fair market valué of the stock. The October 1, 2002 statutory deadline passed without Amtrak making any further offer to redeem the shares.

APU and Amtrak negotiated from 2000, when Amtrak made its initial offer, until January 2008, when Amtrak declared that the shares were worthless and that further negotiations would be futile. The parties never reached a settlement of their dispute.

B. Procedural background

Seven months after APU filed its lawsuit against Amtrak, the district court stayed the case pending arbitration proceedings that are irrelevant to this appeal. The arbitration panel ultimately determined that the dispute was not arbitrable, and the district court lifted the stay.

In June 2011, the district court granted Amtrak’s motion to dismiss all seven of APU’s claims. APU appealed, but this court affirmed the dismissal of all but one claim. Am. Premier Underwriters, Inc. v. Nat’l Passenger R.R. Corp., 709 F.3d 584 (6th Cir. 2013). On the one remaining claim, we held that § 415(b) of the ARAA gave APU a property interest in the redemption of the Amtrak shares at fair market value and that APU had stated a claim for equitable relief for the deprivation of this property interest without procedural due process. Id. at 595. We then remanded the case for the district court to determine whether the statute of limitations barred the procedural-due-process claim. Id.

In February 2015, the district court granted Amtrak’s motion to dismiss, ruling that APU’s complaint was barred by the statute of limitations. APU then filed a motion for reconsideration, which the district court denied. This timely appeal followed. .

II. ANALYSIS

A. Standard of review

We review de novo the grant of a motion to dismiss on statute-of-limitations grounds. In re Vertrue, Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 478 (6th Cir. 2013). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we must “construe the complaint in the light most favorable to the plaintiff and accept all factual allegations as trae.” Laborers’ Local 265 Pension Fund v. iShares Tr., 769 F.3d 399, 403 (6th Cir. 2014).

B. The accrual date of APU’s claim

1. A claim accrues when a plaintiff knows or has reason to know of the injury; for procedural-due-process claims, the injury accrues, when process is denied

The statute of limitations begins to run when a plaintiff “knows or has reason to know of the injury which is- the basis of his action.” Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005) (quoting Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Id. Courts determine the accrual date of a claim by asking “what event should have alerted the typical lay person to protect his or her rights.” Id. (quoting Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000)).

In procedural-due-process claims like APU’s, a plaintiffs injury accrues at the time that process was denied because “the allegedly infirm process is an injury in itself.” See Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir. 1991). Even if the entity sued has not yet reached a “final decision” on the underlying substantive issues, a plaintiff has reason to know of its procedural-due-process claim at the moment process is denied. See id. (finding that the plaintiffs injuries accrued when a- local zoning council convened a critical session that departed from the required notice and comment procedures, even though the council had not yet reached a final decision on the plaintiffs development plans for his property); see also Printup v. Dir., Ohio Dep’t of Job & Family Servs., No. 15-3906, 654 Fed.Appx. 781, 784-88, 2016 WL 3595726, at *3-5 (6th Cir. June 30, 2016) (finding that the plaintiffs procedural-due-process claim against a social-services agency accrued not when the agency’s hearing officer issued a final decision on the plaintiffs status as an employee, but when the plaintiff was initially terminated under allegedly deficient procedural circumstances).

Nasierowski involved a question of ripeness, but it applies in the present case because the Supreme Court has held that a claim accrues for statute-of-limitations purposes at the same time that it ripens: “[I]t is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action ...[;] that is, when the plaintiff can file suit and obtain relief.” Wallace v. Koto, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (brackets, citations, and internal quotation marks omitted) (quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)). Although this court has limited- Nasierowski to cases involving procedural claims only, see Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 572 (6th Cir. 2008), this limitation is irrelevant in the present case because APU’s sole remaining claim on appeal is based on the alleged denial of procedural due process.

2. APU should have known of its procedural-due-process claim when Amtrak missed the statutory deadline to redeem its shares

Nasierowski clearly applies in this case, so the accrual date is the date on which Amtrak denied adequate process to APU. See Nasierowski, 949 F.2d at 894. As the district court persuasively found, any denial of process occurred at the latest by October 1, 2002, when Amtrak missed the statutory deadline to redeem its stock. APU attempts to avoid this conclusion by (1) arguing that the statutory deadline for redemption of Amtrak’s shares does not affect the accrual date of APU’s constitutional claim, and (2) claiming that a plaintiff must receive “final notice” of the denial of process before a claim accrues, and that APU did not receive such notice until Amtrak terminated negotiations in 2008. Both of these arguments are without merit.

APU asserts in its brief that it learned of its injuries not through Amtrak’s initial low-value offer or Amtrak’s failure to meet the statutory deadline, but through Amtrak’s cessation of negotiations in 2008. But APU’s complaint belies this claim. APU asserts its right to “due process of law in connection with the valuation of its common shares pursuant to section 415(b)” of the ARAA. Each alleged deprivation of process involves Amtrak’s purported departure from § 415(b), a provision with a clear deadline. Most tellingly, APU seeks a declaratory judgment that “because Amtrak and APU could not agree on fail-market value within the time fixed by the Amtrak Reform and Accountability Act of 1997, Amtrak should have commenced eminent domain proceedings pursuant to RPSA.” (Emphasis added.)

The process to which APU claims a right should thus have begun while Amtrak was “implementfing]” § 415(b) by valuing its shares held by APU or, at the latest, as soon as Amtrak failed to meet the statutory redemption deadline on October 1, 2002. APU’s argument on appeal that it was unaware of its injury until 2008 is unpersuasive. We need not decide whether APU’s claim accrued in 2000 when Amtrak valued the shares or in 2002 when the statutory deadline passed; the claim is barred either way because APU did not file its complaint until 2008, far more than three years after either possible accrual date.

In addition, APU admits that October 1, 2002 would be the accrual date if this case involved a statutory enforcement action by the U.S. Attorney General. But APU insists that the accrual date is different for its constitutional claim, despite citing no caselaw to explain why the accrual dates should differ. APU’s argument also contradicts how a procedural-due-process claim is analyzed. Standing alone, the Constitution does not create protected property interests for the purposes of a procedural-due-process claim. Brock v. McWherter, 94 F.3d 242, 245 (6th Cir. 1996). Property interests are instead “created and their dimensions ... defined by existing rules or understandings that stem from an independent source,” such as a state statute. Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).

This court has px-eviously held that § 415(b) “creates a property interest, on behalf of APU, in a fair-value redemption of Amtrak shares.” Am. Premier Under writers, Inc. v. Nat’l R.R. Passenger Corp., 709 F.3d 584, 595 (6th Cir. 2013). Because § 415(b) creates APU’s property interest, the statutory deadline determines the extent of APU’s rights. Indeed, APU cites this court’s conclusion to argue that “the October 1, 2002 deadline relates and is relevant to APU’s due process claim— not as a statutory accrual date—but as a manifestation of Congress’s limitations on the discretion of Amtrak to rescind the benefit of an objective fair-value redemption.” APU essentially asserts that the deadline limits Amtrak’s ability to infringe on APU’s statutory rights, but does not limit APU’s ability to sue almost six years later. We decline the invitation to let APU have it both ways.

The district court’s discussion of Center for Biological Diversity v. Hamilton, 453 F.3d 1331 (11th Cir. 2006), provides another persuasive argument in support of the conclusion that APU should have known of its procedural-due-process claim when the October 1, 2002 deadline passed. Hamilton involved a challenge to the Secretary of the Interior’s failure to designate a critical habitat for two endangered species before the Endangered Species Act’s deadline for such a designation. Hamilton, 453 F.3d at 1333. The Eleventh Circuit held that the statute of limitations began to run on the day following the deadline, reasoning that “a reasonably prudent plaintiff would have been aware of the failure of the Secretary to act” by that time. Id. at 1335. In APU’s case, the district court noted that, like the statutory provision at issue in Hamilton, § 415(b) of the ARAA contained “a fixed point of time at which APU knew or should have known of Amtrak’s failure to act.” Although we are not aware of any opinions of this court addressing the statute-of-limitations consequences of failing to meet a statutory deadline, we adopt this common-sense approach for cases such as this where a reasonably prudent plaintiff would know that its legal rights were affected by the passing of a statutory deadline.

Finally, AP.U cites out-of-circuit caselaw to argue that a procedural-due-process claim does not,accrue until “a plaintiff is given final notice that she would not receive further process,” and that APU did not receive such notice until negotiations ended in 2008. See Knox v. Davis, 260 F.3d 1009, 1015 (9th Cir. 2001) (finding that the plaintiff received “final notice” when the government denied her requests for a hearing); Hoesferey v. City of Cathedral City, 945 F.2d 317, 318, 320 (9th Cir. 1991) (holding that the plaintiff did not receive “final” and “unequivocal notice” of termination more than a month into the future because there was a possibility that the employer might change its decision).

We are unaware of any procedural-due-process cases in which this court has held that “final notice” is required for the statute of limitations to begin to run. To the extent that the “final notice” requirement means that the government agency must issue a final decision before a procedural-due-process claim accrues, the alleged requirement would appear to be in tension with this court’s holding in Nasieroivski that a procedural-due-process claim accrues when process is denied. Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir. 1991).

AiPU, moreover, has never asserted any procedural-due-process right that would require Amtrak to engage in negotiations after the statutory deadline. Its asserted procedural-due-process claim instead relates only to the valuation of the stock and to Amtrak’s failure to institute eminent domain proceedings once the statutory deadline lapsed. Amtrak’s decision to cease negotiations in 2008, therefore, would not be the moment that APU received “final notice” of the deprivation of process at issue. Instead, Amtrak’s failure to meet the clear statutory deadline in 2002 should have been sufficient to give APU “final notice” that it would not receive process under § 415(b). We thus have no need to consider whether accrual of a procedural-due-process claim requires “final notice” of the deprivation of process because, for the due-process claim under consideration, any “final notice” occurred by 2002, and the statute of limitations has clearly run.

As the district court persuasively noted, accepting APU’s argument that the statute of limitations did not begin to run until 2008 would “contravene[ ] the basic purpose of a limitations period” by allowing APU to wait to bring suit until it “became satisfied that it had been harmed enough.” If APU wanted to preserve its claim while attempting to resolve the dispute, it should have secured a tolling agreement with Amtrak.

C. The district court did not act improperly in granting Amtrak’s motion to dismiss the complaint on statute-of-limitations grounds

In its brief, APU argues that its complaint raises a genuine dispute of material fact sufficient to survive a motion to dismiss. APU also laments that it has received no opportunity to engage in discovery, claiming that “discovery will support its allegations about the accrual date being in January 2008.”

True enough, courts should not dismiss complaints on statute-of-limitations grounds when there are disputed factual questions relating to the accrual date. See, e.g,, Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (noting that a Rule 12(b)(6) motion is usually an “inappropriate vehicle” for dismissing a claim on statute-of-limitations grounds because the statute of limitations is an affirmative defense). Examples of such disputed factual questions include claims that the defendant fraudulently concealed facts, thereby preventing the plaintiff from learning of its injury, see, e.g., Firestone v. Firestone, 76 F.3d 1205, 1209-10 (D.C. Cir. 1996), and complex issues about whether information in the plaintiffs possession sufficed to alert it of the claim, see, e.g., Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (10th Cir. 2015). But where one can determine from the face of the complaint that the statute of limitations has run, dismissal is appropriate. Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir, 2008) (holding that the claim was clearly barred by the three-year statute of limitations because the complaint alleged facts indicating that the plaintiffs had actual knowledge of their claim more than three years before the complaint was filed).

APU incorrectly argues that “[i]n this case, the parties present .opposing conclusions of fact” regarding the accrual date. But there is no disputed question of fact regarding the dates of the three key events in this case. APU and Amtrak agree that (1) Amtrak valued APU’s shares at three cents each in 2000, (2) the deadline for redeeming the shares lapsed on October 1, 2002, and (3) Amtrak terminated negotiations with APU in 2008. The parties dispute only which of these three dates has legal significance as the accrual date. This is a question of law, not of fact, so resolution of the issue on a motion to dismiss was appropriate.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.


source: Caselaw Access Project

author: BOGGS, Circuit Judge.

license: Public Domain

text:
    Antonio FRANKLIN, Petitioner-Appellant, v. Charlotte JENKINS, Warden, Respondent-Appellee.
    No. 15-8180
    United States Court of Appeals, Sixth Circuit.
    Argued: January 27, 2016
    Decided and Filed: October 7, 2016
    Rehearing En Banc Denied November 17, 2016.

      ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, James P. Fleisher, BIESER, GREER •<& LANDIS, LLP, Dayton, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    Before: COLE, Chief Judge; and BOGGS and GIBBONS, Circuit Judges.
   OPINION

BOGGS, Circuit Judge.

More than twelve years ago, Antonio Franklin, an Ohio prisoner sentenced to death, filed a petition for a writ of habeas corpus in federal district court. The district court denied Franklin’s petition on the merits and this court affirmed. Five months later, Franklin moved the district court for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), seeking to avail himself of the Supreme Court’s decisions in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). The district court denied Franklin’s motion on the merits and Franklin again appealed. As we explain, Franklin’s Rule 60(b) motion is a “second or successive” habeas application that the district court lacked jurisdiction to consider without pri- or authorization from this court. Because Franklin has not satisfied the gatekeeping requirements applicable to motions for authorization to file a “second or successive” habeas application, he is not entitled to relief.

I

A

As an adolescent, Antonio Franklin moved into the Dayton, Ohio, home of his grandparents and uncle in order to escape his alcoholic mother’s physical and verbal abuse. Despite the abuse, Franklin appeared to be a relatively well-adjusted child. As Franklin approached the age of seventeen, however, his behavior began to change. On one occasion, for example, Franklin expressed a fear that extraterrestrials would abduct him. On another, he showed up at his girlfriend’s mother’s house in the middle of a winter night, appearing to be dazed and confused. Franklin also began to abuse marijuana at around this time, causing a rift between himself and his grandparents.

On April 17, 1997, when Franklin was nineteen years old, his grandparents and uncle informed him that he would soon have to find his own place to live. The discussion apparently upset Franklin. Later that evening, Franklin and his uncle got into an argument about Franklin’s use of the family’s phone, which his uncle followed by making a joke that implied that Franklin was sexually attracted to men. Franklin responded by picking up a baseball bat and attacking his uncle. Franklin then turned on his grandmother and grandfather. After severely beating all three of the relatives who had taken him in, Franklin seized a gun and shot his grandmother in the head, killing her. Franklin then set fire to the house, leaving his grandfather and uncle to die. With his grandmother’s jewelry in his pocket, Franklin fled to Tennessee in his grandfather’s vehicle. He was promptly apprehended by Tennessee police and confessed his involvement in the killings, which he said he had committed because his uncle had raped him as a child.

Franklin was eventually returned to Ohio, where he faced six counts of aggravated arson, two counts of aggravated robbery, and six counts of aggravated murder. Franklin pleaded not guilty by reason of insanity to all counts and also claimed that he was incompetent to stand trial. After holding a pretrial competency hearing, however, the trial court found that Franklin was in fact competent and that his case could proceed to trial. During trial, Franklin engaged in various forms of disruptive and inappropriate behavior. In addition to flashing gang signs at the jury, belching loudly, and repeatedly interrupting the judge:

Franklin nodded, stared at the floor, and played shadow puppets in light cast from the screen upon which were displayed slides of his deceased family members and the burned house in which they died. At other times he played shadow games with his tie. Franklin sat alone and staredf,] rarely paying attention to the proceedings.

Appellant’s Br. 16-16 (citations omitted). In the face of overwhelming evidence of Franklin’s guilt, the jury found Franklin guilty of all fifteen counts and recommended that he receive the death penalty. The trial court agreed with the jury’s recommendation and sentenced Franklin to death.

On direct appeal, Franklin argued that his trial attorneys were ineffective for fail-mg to request- a- new competency hearing in the middle of the trial. In particular, Franklin argued that his “behavior during trial should have prompted defense counsel to request another competency determination to decide if he was competent to continue at the trial .and penalty phases,” noting that “during the sentencing portion of Appellant Franklin’s trial, defense counsel informed the trial court that Appellant Franklin was unable to assist them because of his mental state during the trial.” In another section of his appellate brief, in which Franklin argued that the trial court should have ordered a midtrial competency hearing sua sponte, Franklin also noted that Dr. Eugene Cherry, a psychologist whom Franklin called as an expert witness at trial, “consistently testified that Appellant Franklin suffered from ... paranoid schizophrenia.”

The Ohio Supreme Court affirmed, holding that a midtrial competency hearing was not warranted. See State v. Franklin, 97 Ohio St.3d 1, 776 N.E.2d 26, 35 (2002). The court held that Dr. Cherry’s testimony concerning Franklin’s schizophrenia “did not need to be reconsidered [by the trial court] because similar testimony had been presented at [Franklin’s] pretrial competency hearing.” Ibid. The court noted that although Franklin’s courtroom actions “did indeed constitute strange behavior, they illustrated a pattern of rudeness rather than incompetency to stand trial.” Ibid. For this reason, the Ohio Supreme Court concluded that “the evidence ... does not shed any new light on [Franklin’s] ability to understand the proceedings, to interact with his counsel, or to assist in his defense.” Ibid. After determining that “no [competency] hearing was warranted,” id. at 40, the court held that counsel could not be ineffective for failing to request a second competency hearing, id. at 39-40. The United States Supreme Court denied certiorari. Franklin v. Ohio, 539 U.S. 905, 905, 123 S.Ct. 2249, 156 L.Ed.2d 115 (2003) (mem.).

While his direct appeal was still pending in the Ohio1 Supreme Court, Franklin, who was still represented by counsel, filed a petition for postconviction relief in state trial court in which he repeated his direct-appeal claim that his trial attorneys Were ineffective for failing to request a midtrial competency hearing. Ohio has a bifurcated system for processing constitutional claims arising out of a criminal trial. If an alleged constitutional error can be raised and fully litigated on direct appeal, res judicata generally bars the relitigation of that alleged error in a state postconviction proceeding. See, e.g., State v. Sowell, 73 Ohio App.3d 672, 598 N.E.2d 136, 141-42 (1991). But if the claim of constitutional error is supported by sufficient extra-record evidence, res judicata does not prohibit a prisoner from raising the alleged error again on state collateral review. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 171 (1982). As the district court explained below, “an Ohio defendant may raise an ineffective assistance of trial counsel claim on direct appeal and get a decision on the merits of that claim, based on the evidence of record, and then get more evidence that was not in the record and re-file the claim in post-conviction.”

Unlike his direct-appeal ineffective-assistance-of-trial-counsel claim, which relied wholly on evidence in the record, Franklin supported his state postconviction claim with new evidence, namely, an affidavit from a new psychologist, Dr. Sharon Pearson, who stated that based on her review of the record, including a video recording of trial, Franklin was not competent during his trial; an affidavit from Suzanne Wynn, who assisted defense counsel and observed strange behavior from Franklin; and an affidavit from his lead trial counsel, who stated that Franklin was unable to assist in his own defense. The state trial court, however, rejected Franklin’s petition without a hearing, explaining that his ineffectiye-assistance-of-trial-counsel claim did not include extra-record, evidence. Since it was not, so raised, it was barred by res judicata because it could be raised only on direct appeal.

The Ohio Court of Appeals affirmed the trial-court decision, addressing Franklin’s ineffective-assistance-of-trial-counsel argument on the merits. The court explained that because Franklin’s attorneys “had already argued Franklin’s incompetency to the trial court- and lost,” they had “no reason to believe [that] they would be successful on a second attempt, [and] it was a reasonable tactical decision to refrain from requesting a new hearing.” State v. Franklin, No. 19041, 2002 WL 1000415, at *4 (Ohio Ct. App: May 17, 2002). The court further explained that “Franklin has [also] failed to establish that he was prejudiced.” Ibid. The Ohio Supreme Court denied Franklin’s petition for review. State v. Franklin, 108 Ohio St.3d 1475, 842 N.E.2d 1054,1054 (2006) (mem.).

B

Having exhausted state-court remedies, Franklin timely filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. In addition to arguing that the trial court erred by failing to conduct a new competency hearing sua sponte, Franklin claimed that his trial attorneys had been ineffective for them failure to seek “another competency hearing when [Franklin] was unable to assist them or maintain decorum during the guilt phase of trial.” Although Franklin’s habeas application was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the district court conducted an evidentiary hearing in accordance with the prevailing law prior to Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). At the hearing, Franklin called his trial lawyers, who testified that Franklin was not “mentally, emotionally [or] intellectually at the trial” and could not assist in his defense. The attorneys recounted that Franklin was unable to communicate with them inside or outside of court, had no reaction to the guilty verdict whatsoever, and expressed confusion when the trial judge pronounced a death sentence.

The district court denied Franklin’s ha-beas application in 2009. After considering the evidence it heard at the hearing, the district court concluded that Franklin had not satisfied his burden of showing that the Ohio Supreme Court’s “determination that it was rudeness rather than incompetence that explained his strange behavior during his trial was an ‘unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” The district court followed the Ohio Supreme Court’s reasoning that because Franklin’s demeanor at trial did not impose upon the trial judge a duty to hold a second competency hearing, counsel could not have been ineffective for failing to request one.

We affirmed in a unanimous decision. See Franklin v. Bradshaw, 695 F.3d 439, 457 (6th Cir. 2012). In light of the Supreme Court’s then-recent decision in Pinholster, we explained that because Franklin’s ineffective-assistance claim “was raised on direct appeal and Franklin abandoned the post-conviction version of this claim, see Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998), he can only rely on the record evidence that was before the Ohio Supreme Court on direct appeal.” Franklin, 695 F.3d at 452. In other words, because the Pinholster decision suggested that the district court erred by holding a hearing, id. at 451, 452 n.3, we could not rely on the evidence introduced in federal court to adjudge the reasonableness of the relevant state-court decisions. Issues “not raised on appeal[] are considered abandoned and not reviewable on appeal.” Robinson, 142 F.3d at 906. On appeal to us, Franklin decided not to mention the Ohio Court of Appeals’s adjudication of his ineffective-assistance claim, or to rely on evidence that he brought before the state postcon-viction courts in conjunction with that claim. See Appellant’s Br. 53-55, in Franklin, 695 F.3d 439, (No. 09-3389).. Thus, we measured the reasonableness of the Ohio Supreme Court’s decision with respect to the evidence before it. See Franklin, 695 F.3d at 452.

Upon undertaking that review, we concluded that the evidence in the state-court record suggested that “Franklin was competent. There was no reason to hold a second competency hearing.” Ibid. For this reason, we held that “[t]he Ohio Supreme Court’s rejection of [Franklin’s ineffective-assistance-of-trial-counsel] claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, was not based on an unreasonable determination of the facts in light of the evidence presented, and was not clearly erroneous.” Ibid. “Franklin,” we explained, “fail[ed] to demonstrate prejudice.” Ibid. The Supreme Court denied Franklin’s petition for a writ of certiorari. Franklin v. Robinson, — U.S.-, 133 S.Ct. 1724, 1724, 185 L.Ed.2d 789 (2013) (mem.).

Two months after denying certiorari in Franklin’s case, the Supreme Court decided Trevino v. Thaler, — U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), which expanded the Court’s holding in Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). In Martinez, the Supreme Court qualified another earlier decision, Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and held that;

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if,, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Martinez, 132 S.Ct. at 1320 (emphasis added). The following year, in Trevino, the Supreme Court held that the rule of Martinez also- applies where “[t]he structure and design of the [state] system in actual operation ... make[s] it ‘virtually impossible’ for an ineffective assistance claim to be presented on direct review.” Trevino, 133 S.Ct. at 1915 (quoting Robinson v. State, 16 S.W.3d 808, 810-11 (Tex. Crim. App. 2000)).

A few months after the Supreme Court decided Trevino, Franklin, who was—and still is—represented by counsel, filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). Apparently drawing on our observation that Franklin had “abandoned the post-conviction version of’ his ineffective-assistance claim, Franklin, 695 F.3d at 452, Franklin argued that “the postconviction version” of that claim was an independent and procedurally defaulted claim that this court never considered on the merits due to Coleman. See Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546 (holding that ineffective assistance of state postconviction counsel is not cause that would excuse a procedural default). In Franklin’s view, “[bjecause [state] post conviction counsel’s failure was in effect a denial of ... assistance,” Martinez and Trevino would now excuse that procedural default, enabling this court to consider the merits of his ineffective-assistance claim. What is more, because the ineffective-assistance claim brought on state postconviction review was “never adjudicated on the merits,” Franklin claimed that Pinholster “presents no bar to review of the claim using the evidence” presented in the federal evidentia-ry hearing.

The district court denied the motion on the ground that Franklin’s ineffective-assistance claim was not procedurally defaulted and that therefore neither Martinez nor Trevino applied. The court explained that Franklin had already “received consideration of the merits . of that claim” on direct review in the Ohio Supreme Court, and was “precluded from merit consideration of the claim in post-conviction” not “by any procedural default of post-conviction counsel, but by Ohio’s res judicata doctrine.” Having concluded that Martinez and Trevino would not allow Franklin to relitigate his claim in federal court, the district court concluded that Franklin had not shown entitlement to relief under Rule 60(b)(6). As a result, the court found no reason to “decide whether [Franklin’s] [m]otion is effectively a second or successive ha-beas petition.” Franklin timely appealed.

II

We review a district court’s decision to deny a Rule 60(b) motion for abuse of discretion. Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007) (per curiam). We recognize an “abuse of discretion” when our review leaves us with “a definite and firm conviction that the trial court committed a clear error of judgment.” Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006) (quoting Amemational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)). Relief under Rule 60(b) is the exception, not the rule, and we are guided by the constraints imposed by a “public policy favoring finality of judgments and termination of litigation.” Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). Particularly strict standards apply to motions made pursuant to Rule 60(b)(6), under which a court may grant relief “only in exceptional or extraordinary circumstances” where principles of equity “mandate” relief. Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (quoting Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)). As we explain, however, we need not inquire into the district court’s exercise of discretion in this case because our independent review of the record points squarely to the conclusion that the district court lacked jurisdiction to consider Franklin’s motion at all.

Ill

As mentioned above, Rule 60(b) allows a civil litigant the opportunity to seek relief from a final judgment and request a federal district court to reopen his case under limited circumstances. See Fed. R. Civ. P. 60(b). AEDPA, which applies to Franklin’s case, does not “expressly circumscribe the operation of Rule 60(b).” Gonzales v. Crosby, 545 U.S. 524, 529, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). But the statute’s restrictions on federal courts’ ability to consider and grant prisoners’ applications for a writ of habeas corpus indirectly limit Rule 60(b)’s operation in the habeas corpus context: the effect of AEDPA is that “Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only ‘to the extent that [it is] not inconsistent with’ applicable federal statutory provisions and rules.” Gonzalez, 545 U.S. at 529, 125 S.Ct. 2641 (alteration in original) (quoting Rules Governing Section 2254 Cases in United States District Court, R. 11, 28 U.S.C. § 2254); see also Rules Governing Section 2254 Cases in United States District Court, R. 12, 28 U.S.C. § 2254.

Those “applicable federal statutory provisions and rules” sharply restrict federal courts’ ability to consider and grant “second or successive” habeas petitions. See 28 U.S.C. § 2244(b). Relevant here, any claim that has already been adjudicated in a previous petition must be dismissed. Id. § 2244(b)(1). Any claim that has not been adjudicated must also be dismissed unless “it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence.” Gonzalez, 545 U.S. at 529, 125 S.Ct. 2641 (citing 28 U.S.C. § 2244(b)(2)). Lastly, federal district courts lack jurisdiction to consider second or successive habeas petitions without preauthorization from the relevant Court of Appeals. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147, 149, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam). Because “Rule 60(b) motions ... may not be used as vehicles to circumvent the[se] limitations that Congress has placed upon the presentation of claims in a second or successive application for habeas relief,” Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir. 2016), our threshold inquiry is whether Franklin’s Rule 60(b) motion is a “true” Rule 60(b) motion or simply a “second or successive” habeas application cloaked in Rule 60(b) garb. Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641.

Case law provides us with some guidance in delineating the boundary between the two. A petitioner’s Rule 60(b) motion is a “second or successive” habeas application “when it ‘seeks vindication of or ‘advances’ one or more ‘claims.’ ” Post v. Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005) (quoting Gonzalez, 545 U.S. at 531-32, 125 S.Ct. 2641). A “claim,” in turn, “is ‘an asserted federal basis for relief from a state court’s judgment of conviction.’ ” Ibid, (quoting Gonzalez, 545 U.S, at 530, 125 S.Ct. 2641). For example, a habeas petitioner’s Rule 60(b) motion advances claims “when [the petitioner] seeks to add a new ground for relief or seeks to present ‘new evidence in support of a claim already litigated.’ ” Moreland, 813 F.3d at 322 (quoting Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641). By contrast, a petitioner does not seek to advance new claims “when [his] motion ‘merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to, exhaust, procedural default, or statute-of-limitations bar.’ ” Post, 422 F.3d at 424 (quoting Gonzalez, 545 U.S. at 532 n.4, 125 S.Ct. 2641).

Applying these rules to Franklin’s Rule 60(b) motion, it is clear that Franklin’s Rule 60(b) motion “advances” an “asserted federal basis for relief from a state court’s judgment of conviction.” Gonzalez, 545 U.S. at 530,125 S.Ct. 2641. The general thrust of Franklin’s motion for relief from judgment is that neither this court nor the district court considered evidence introduced at Franklin’s federal evidentia-ry hearing when adjudicating his ineffective-assistance claim. See Appellant’s Jan. 28, 2016, Letter Br. 1-3. In other words, having lost on that claim in both courts, Franklin seeks a new opportunity to argue that claim with new evidence that apparently reveals his trial attorneys’ alleged ineffectiveness. Ibid. But as we have held, a prisoner seeking relief under Rule 60(b) brings a “second or successive” habeas application when he “seeks to present ‘new evidence in support of a claim already litigated.’” Moreland, 813 F.3d at 323 (quoting Gonzalez, 545 U.S. at 531-32, 125 S.Ct. 2641). Because Franklin’s Rule 60(b) motion does just that, the district court lacked jurisdiction to consider the new iteration of his ineffective-assistance claim without prior authorization from this court. See Burton, 549 U.S. at 149, 127 S.Ct. 793.

Franklin protests that he is not seeking to attack this court’s on-the-merits resolution of his ineffective-assistance claim, but rather this court’s determination that the postconviction version of his ineffective-assistance claim was procedurally defaulted. See Appellant’s Jan. 28, 2016, Letter Br. 1-2. As we have recounted, Franklin views the postconviction version of his ineffective-assistance claim as an independent claim that we previously declined to consider on the ground that it was procedurally defaulted. Ibid. If this is true, Franklin posits, his Rule 60(b) motion attacks not this court’s merits adjudication of his direct-appeal ineffective-assistance-of-trial-counsel claim, but rather this court’s determination that the postconviction ineffective-assistanee-of-trial-counsel claim was procedurally defaulted in state court. Ibid. And if that is true, it is arguable that Martinez and Trevino would excuse Franklin’s procedural default, paving the way for a merits consideration of his postconviction ineffective-assistance-of-trial-counsel claim. Appellant’s Br. 35.

Franklin’s argument suffers from several defects, two of which are particularly relevant here. As a preliminary matter, although Franklin purports to use his Rule 60(b) motion to attack this court’s reliance on a state procedural bar to foreclose federal review of the postconviction version of his ineffective-assistance claim, we declined to consider that version of the claim due to Franklin’s federal-court default, not a state-court one. Indulging for a moment Franklin’s view that the postconviction version of his claim is an independent claim, this court did not hold that the postconviction ineffective-assistance claim was procedurally defaulted due to Franklin’s failure to overcome Ohio’s res judicata bar. (Indeed, in adjudicating that claim on postconviction review, the Ohio Court of Appeals did not rely on res judicata and instead addressed that claim on its merits. See Franklin, 2002 WL 1000415, at *4.) As mentioned above, in reviewing the district court’s denial of Franklin’s first habeas petition, we cited our decision in Robinson v. Jones, 142 F.3d 905 (6th Cir. 1998), to explain that because Franklin had not relied on evidence he offered to the state postconviction court in support of his ineffective-assistance claim in this court, we would gauge the reasonableness of the Ohio Supreme Court’s earlier adjudication of his ineffective-assistance claim on direct appeal, not the Ohio Court of Appeals’s adjudication of the claim on postconviction review. See Franklin, 695 F.3d at 452.

Equally important is that Franklin’s postconviction claim of ineffective assistance of trial counsel is not an independent claim; Franklin is merely offering additional support for a claim that he already litigated. Although it is possible that there are instances when new evidence transforms an old claim into a new one, see Pinholster, 563 U.S. at 186 n.10, 131 S.Ct. 1388, the Supreme Court has long cautioned us to draw a distinction between the “presentation of additional facts” and “the substance of [a petitioner’s] claim.” Vasquez v. Hillery, 474 U.S. 254, 257-58, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). The former sufficiently alters the latter to create a “new” claim for purposes of 28 U.S.C. § 2244(b)(1) only where the “gravamen of [a petitioner’s] argument” is different. Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (per curiam); accord In re Hill, 715 F.3d 284, 294 (11th Cir. 2013); In re West, 402 Fed.Appx. 77, 79 (6th Cir. 2010); Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997). Simply put, for purposes of AEDPA, “[n]ew evidence does not usually give rise to a new claim; it merely provides additional proof of a claim already adjudicated on the merits.” Pinholster, 563 U.S. at 216, 131 S.Ct. 1388 (Sotomayor, J., dissenting).

Assuming for the sake of argument that Martinez and Trevino do apply in Ohio— and that those decisions would allow Franklin to circumvent Pinholster in the manner that he hopes, but see Moore v. Mitchell, 708 F.3d 760, 784 (6th Cir. 2013) (rejecting an Ohio prisoner’s argument that Martinez permits the introduction of new evidence for an ineffective assistance of counsel claim on habeas review despite the Court’s holding in Pinholster)—the gravamen of the argument that Franklin seeks to present in federal court now is no different than that of the argument that he presented in his appeal from the district court’s denial of his habeas application. Then, as now, Franklin relied on the same “nucleus of operative facts,” Brannigan v. United States, 249 F.3d 584, 590 (7th Cir. 2001) (Cudahy, J., concurring in the judgment), namely, that his trial attorneys should have requested a new competency hearing upon witnessing his bizarre behavior at the time of his trial. The fact that he now offers more evidence in support of that ultimate conclusion does not change matters; “we will not consider new factual grounds in support of the same legal claim that was previously presented.” Babbitt, 177 F.3d at 746. For purposes of 28 U.S.C. § 2244(b)(1), then, Franklin’s Rule 60(b) motion does not present a “new” claim.

Our preliminary inquiry is, of course, not whether Franklin has satisfied the threshold requirements of 28 U.S.C. § 2244(b), but rather whether his Rule 60(b) motion is in substance a “second or successive” habeas petition subject to those requirements. Indeed, a Rule 60(b) filing that satisfies the requirements of 28 U.S.C. § 2244(b) may still be a “second or successive” habeas petition. But in this case, where it is clear that Franklin’s Rule 60(b) motion presents a claim that would not satisfy those requirements, 28 U.S.C. § 2244(b) illustrates just why Franklin’s filing exceeds the limits of a “true” Rule 60(b) motion. Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641. As the Supreme Court has made clear, Rule 60(b) applies to habeas petitioners “only ‘to the extent that [it is] not inconsistent with’ applicable federal statutory provisions and rules,” including 28 U.S.C. § 2244(b)(1). Gonzalez, 545 U.S. at 529, 125 S.Ct. 2641 (alteration in original) (quoting 28 U.S.C. § 2254 R. 11 (2004)). For this reason, “[a] habeas petitioner’s, [Rule 60(b)] filing” that seeks to present “newly discovered evidence” in support of a claim may be “at least similar enough [to a habeas corpus application] that failing to subject it to the same requirements would be ‘inconsistent with’” AEDPA. Id. at 531, 125 S.Ct. 2641 (quoting 28 U.S.C. § 2254 R. 11 (2004)).

At the very, least, then, if we are to avoid rendering 28 U.S.C. § 2244(b)(1) entirely nugatory, Franklin may not use Rule 60(b) as a vehicle for relitigating the same “claim” that was already decided against him in a previous habeas petition. See 28 U.S.C. § 2244(b)(1); Gonzalez, 545 U.S. at 531, 125 S.Ct. 2641. Because Franklin seeks to do just that with his claim-splitting theory, we must construe his filing as a “second or successive” habeas application subject to the threshold requirements set forth in 28 U.S.C. § 2244(b). And, as we have explained, because district courts lack jurisdiction to consider “second or successive” habeas applications without prior authorization from the appropriate Court of Appeals, see 28 U.S.C. § 2244(b)(3); Burton, 549 U.S. at 149, 127 S.Ct. 793, the district court erred by reaching the merits of Franklin’s filing in the absence of any such authorization from this court.

IV

Our holding that Franklin’s Rule 60(b) motion is in substance a “second or successive” habeas application that the district court lacked jurisdiction to consider does not end our inquiry. In like situations, we generally construe a prisoner’s appellate brief as making a request for authorization to filea second or successive habeas application and proceed to determine whether' the prisoner has satisfied the threshold requirements for such authorization. See, e.g., Moreland, 813 F.3d at 325; In re Bowling, 422 F.3d 434, 435 (6th Cir. 2005). Franklin, however, has not met those prerequisites. An application for permission to file a “second or successive” habeas petition may not be granted on any claim that was raised in a previous habeas petition. 28 U.S.C. § 2244(b)(1). As we have already explained, because the new evidence of Franklin’s attorneys’ ineffectiveness in no way alters the gravamen of his previous claim, his instant claim is simply a new variation on an old claim that he raised in his first petition. See Babbit, 177 F.3d at 746. Accordingly, we may not grant Franklin leave to file a second or successive habeas application under the terms of 28 U.S.C. § 2244(b)(1). See In re West, 402 Fed.Appx. at 79.

V

Congress enacted AEDPA with the purpose of furthering the finality of state-court criminal convictions. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). As a result, “AEDPA does not suffer kindly the reliti-gation of tired claims.” In re Fowlkes, 326 F.3d 542, 548 (4th Cir. 2003) (Gregory, J., concurring in the judgment). Because Franklin’s Rule 60(b) motion represents an effort to relitigate a claim that this court already resolved in the Warden’s favor, the motion is in substance a “second or successive” petition that the district, court lacked authority to adjudicate without prior authorization from this court. See Burton, 549 U.S. at 157, 127 S.Ct. 793; Gonzalez, 545 U.S. at 534-35, 125 S.Ct. 2641. And because Franklin cannot satisfy the gatek-eeping requirements for “second or successive” habeas applications, see 28 U.S.C. § 2244(b), we must deny him such authorization. For these reasons, we VACATE the district court’s order for want of jurisdiction, and DENY Franklin’s request for authorization to file a second or successive habeas petition.


author: RONALD LEE GILMAN, Circuit Judge.

text:
    Noor Jahan SAKHAWATI, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 15-3575
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: October 7, 2016

      ON MOTION AND REPLY: Michael E. Piston, New York, New York, for Petitioner. ON RESPONSE: Nancy E. Friedman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before: GILMAN, WHITE, and STRANCH, Circuit Judges.
   ORDER

RONALD LEE GILMAN, Circuit Judge.

Petitioner Noor Jahan Sakhawati has filed an Application for Attorney Fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Sakhawati’s counsel, billing at an hourly rate of $190.28, seeks $21,248.37 in attorney fees, legal-assistance fees, and expenses for the 104.85 hours claimed to have been spent on the matter prior to the Application for Attorney Fees. He seeks an additional $1,908.20 for the 10.00 hours claimed to have been spent preparing the Application and responding to the United States’s Opposition. For the reasons set forth below, we grant in part Sakhawati’s Application and award a total of $15,653.76 in attorney fees, legal-assistance fees, and expenses.

I. DISCUSSION

The Equal Access to Justice Act of 1980 provides in pertinent part as follows:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Among those “special circumstances” that would justify denying an award of attorney fees are “equitable considerations [that] dictate an award should not be made.” H.R. Rep. No. 1418, at 11 (1980).

The United States argues that we should deny Sakhawati’s Application for Attorney Fees on two grounds. First, the government contends that Sakhawati, who allegedly lied on her initial application for asylum and in subsequent hearings after the Board of Immigration Appeals (BIA) erroneously granted the government’s motion to reopen her immigration case, has “unclean hands.” Second, the government argues that Sakhawati, if entitled to any fees at all, should receive fees only for her “partial or limited success.”

A. Unclean hands

“The doctrine of unclean hands is an equitable concept that allows a court to deny injunctive or declaratory relief when ‘the party applying for such relief is guilty of conduct involving fraud, deceit, uncon-scionability, or bad faith related to the matter at issue to the detriment of the other party’ Cyber Solutions Int’l, LLC v. Pro Mktg. Sales, Inc., 634 Fed.Appx. 557, 567 (6th Cir. 2016) (emphasis added) (quoting Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1383 (6th Cir. 1995)). To illustrate the application of this doctrine to applications for attorney fees under the EAJA, the government relies principally upon Oguachuba v. INS, 706 F.2d 93 (2d Cir. 1983), in its Opposition. A noncitizen sought attorney fees in that case for the successful litigation of a petition for a writ of habeas corpus, which secured his release from a period of detention that was solely the result of his own conniving efforts to prolong his stay in the United States. The Second Circuit observed that, “[wjhile he prevailed in his petition for a writ of habe-as corpus, he would not have been incarcerated in the first place but for his notorious and repeated violations of United States immigration law.” Id. at 99.

Oguachuba illustrates the fact that the doctriné of unclean hands applies most appropriately to those cases where the party applying for relief engaged in nefarious conduct related to the matter at issue and that adversely affected the other party. In Oguachuba, the petitioner, through his bad faith, had remained incarcerated despite the fact that he “was free to end his detention by voluntarily returning to Nigeria.” Id. He thus benefitted from his own bad faith, and equitable relief in the form of attorney fees was therefore denied. Id.

Sakhawati’s case stands in contrast to Oguachuba. Although Sakhawati might have engaged in fraudulent behavior in her application for asylum and in subsequent hearings, her behavior was not related to “the matter at issue” on appeal. See Performance Unlimited, 52 F.3d at 1383. The matter at issue was instead the government’s motion to reopen that the BIA improperly granted. Nor did Sakhawati’s behavior act “to the detriment” of the United States, id. because her behavior was unrelated to the government’s failure to utilize the evidence in its possession at her initial asylum hearing. See Sakhawati v. Lynch, 823 F.3d 852, 858-59 (6th Cir. 2016). Consequently, Sakhawati does not have “unclean hands” in the equitable sense that would justify the denial of attorney fees.

This is not to say that Sakhawati’s conduct in this case is blameless. Nevertheless, “the special circumstances exception [does not] authorize[ ] denial of counsel fees under the EAJA any time a ‘bad guy5 litigant has defeated the government in a lawsuit.” Taylor v. United States, 815 F.2d 249, 254 (3d Cir. 1987) (Becker, J., concurring). Rather, the exception focuses on situations where a litigant “undertook affirmative activity that took advantage of the very government misconduct ... later challenged in -court.” Id. (emphasis in original). The government might well be correct that Sakhawati is a “bad person” litigant in the colloquial sense of the term, but her alleged misconduct did not affirmatively seek to take advantage of the government’s action challenged in her appeal—namely, the decision to seek, and the BIA’s decision to grant, a motion to reopen her asylum case.

B. Apportionment of fees

The government next contends that Sak-hawati’s fee request, if granted at all, should be reduced by two-thirds to account for the fact that we declined to address in our Opinion the arguments raised in the last three pages of her brief. In support of its request, the government cites Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), for the proposition that Sakhawati may not recover attorney fees for any claim upon which she did not prevail. The government quotes a very limited portion of the opinion on which it relies, however, and not the rest of the relevant passage that is most on point. In discussing the apportionment of attorney fees under the Civil Rights Attorney’s Fees Awards Act, the Hensley court wrote:

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit ... counsel’s work on one claim will be unrelated to his work on another claim.... The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiffs claims for relief will involve a common core of facts or will be based on related legal theories.... Such a lawsuit cannot be viewed as a series of discrete claims. Instead the ... court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation.... Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Id. at 434-35, 103 S.Ct. 1933 (citations, footnotes, and internal quotation marks omitted).

We take the essence of Hensley to be that where claims are unrelated to one another—a circumstance “unlikely to arise with great frequency,” id. at 435,103 S.Ct. 1933—the fee award should be reduced to reflect work done only on the claim on which the plaintiff prevailed. These are not the circumstances of the present case.

Despite the government’s argument to the contrary, we are of the opinion that all of the claims that Sakhawati raised on appeal were sufficiently related so as to avoid any need to apportion her attorney fees. They all pertained to a “common core of facts,” id. at 435, 103 S.Ct. 1933; namely, Sakhawati’s asylum application and related evidence. Sakhawati also “obtained excellent results” in that she obtained the most relief that she could have received, and indeed that she requested, on her appeal—the vacatur of the BIA’s decision. We therefore decline the government’s invitation to apportion Sakhawati’s attorney fees to the single claim addressed, in our previous opinion. We now turn to the appropriate amount of that fee.

C. Hourly rate

Having concluded that Sakhawati is entitled to attorney fees and that the fees should encompass “all hours reasonably expended on the litigation,” Hensley, 461 U.S. at 435, 103 S.Ct. 1933, we now consider both the time expended and the hourly rate that ought to apply. As to the “hours reasonably expended,” Sakhawati’s counsel claims a total of 114.85 hours. One could certainly quibble about some of the time entries (such as 10 hours to prepare for oral argument), but the government has elected not to do so. Nor does the total time claimed shock our conscience. In the absence of any challenge to the hours listed, we will therefore accept them as reasonable.

This leads to the question of the proper hourly rate to be applied. The EAJA provides for a statutory maximum rate of $125.00 per hour “unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). “In requesting an increase in the hourly-fee rate, Plaintiff[ ] bear[s] the burden of producing appropriate evidence to support the requested increase.” Bryant v. Comm’n of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009), “Plaintiff! ] must ‘produce satisfactory evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). We have previously held that the Department of Labor’s Consumer Price Index alone, indicating the rate of inflation, is not enough. Id.

In the present case, Sakhawati has submitted no evidence to justify a greater hourly rate than the statutory maximum rate of $125.00 per hour. She simply asserts in conelusory fashion that “[a]n increase in the cost of living and special factors justify awarding a fee of $190.28.” The government, on the other hand, has proffered no evidence to justify attorney fees calculated at less than the statutory maximum rate. We therefore conclude that the statutory maximum rate of $125.00 per hour is appropriate and award Sakhawati’s counsel $14,356.25 in attorney fees. An additional $1,297.51 is awarded for reasonable legal-assistance fees and expenses, as requested in Sakhawati’s application, for a total award of $15,653.76.

II. CONCLUSION

For all of the reasons set forth above, we award a total of $15,653.76 in attorney fees, legal-assistance fees, and costs.


author: ROGERS, Circuit Judge.

text:
    Michael THOMPSON, Petitioner-Appellant, v. Lloyd RAPELJE, Warden, Respondent-Appellee.
    No. 15-1435
    United States Court of Appeals, Sixth Circuit.
    Argued: September 27, 2016
    Decided and Filed: October 11, 2016
    Rehearing En Banc Denied November 17, 2016.

      ARGUED: Edmund G. LaCour, Jr., BANCROFT PLLC, Washington, D.C., for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Edmund G. LaCour, Jr., George W. Hicks, Jr., BANCROFT PLLC, Washington, D.C., for Appellant. Elizabeth Ri-vard, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
    Before: ROGERS, SUTTON, and COOK, Circuit Judges.

       Judges Griffin and White recused themselves from participation in this ruling.

   OPINION

ROGERS, Circuit Judge.

Michael Thompson was convicted on various counts of child abuse, including first-degree criminal sexual conduct, which carries a twenty-five year mandatory minimum sentence. At trial, the disputed question was whether Thompson digitally penetrated the child. In his opening statement, defense counsel promised that Thompson would testify and deny penetration, but counsel never called Thompson to testify. Instead, counsel relied on Thompson’s statements in a taped police interview to tell his side of the story. After trial, Thompson asserted an ineffective-assistance-of-counsel claim based on defense counsel’s broken promise, which the Michigan courts rejected. The district com-t then denied Thompson’s habeas petition based on the same claim, which Thompson now appeals. The district court properly denied Thompson’s habeas petition, because the state court reasonably concluded that defense counsel’s error did not prejudice Thompson’s defense.

The criminal charges in this case stemmed from three separate instances of Thompson’s abusing the twelve-year-old daughter of Thompson’s girlfriend, Ginger Huffman. That conduct came to light in March 2008, when Huffman found nude pictures of her daughter on Thompson’s camera. Thompson admitted taking the photos to Huffman, who turned the camera over to the police. That same day, the police interviewed Thompson, recording the interview on a videotape. In the interview, Thompson admitted taking the sexually explicit pictures of the child and touching the child’s breast and vagina. Thompson denied, however, digitally penetrating the child.

Several days later, the child confirmed that Thompson had inappropriately touched her. The confirmation came out during an examination with Dr. Gushurst, a pediatrician who specializes in child abuse. During the examination, the child told Gushurst that Thompson “touched [her] under [her] pants” and that it hurt “a little bit.” When Gushurst did a more detailed examination and asked the child where Thompson had touched her, the child “pointed with her finger to the mons pubis,” “the clitoris area,” and “upper areas of the labia.” When Gushurst placed a swab inside the labia, the child said that she “wasn’t sure” whether she had been touched there.

All of this led to five charges, including one count of first-degree criminal sexual conduct under Michigan Compiled Laws § 750.520b(l)(a), the crime at issue on this appeal. A two-day trial took place in August 2008. As the Michigan Court of Appeals noted on direct appeal, “[i]t [was] undisputed”—both on appeal and at trial— “that [the] defendant inappropriately touched the girl.” People v. Thompson (:Thompson I), No. 287997, 2009 WL 4985244, at *1 (Mich. Ct. App. Dec. 22, 2009). Rather, the chief question at trial was whether Thompson penetrated the child.

In defense counsel’s opening statement at the beginning of trial, he made the promise that is the subject of this appeal:

The defendant I believe is going to testify in this case. He’s going to tell you—I know he’s going to testify—he’s going to tell you he did not commit criminal sexual conduct in first degree. He’s going to tell you that he did not penetrate the girl’s vagina with his finger. Now, how—how is this going to happen? Well, he’s going to testify to that. He’s going to make himself available for cross-examination on everything that happened by taking the stand. The prosecutor I’m sure will ask him a lot of questions about some of these other things. My point is he’s going to testify that he did not digitally or use his finger to penetrate the vagina.
... And if you’ll just keep an open mind and listen to all the proofs before you make up your mind, and listen to the defendant testify and listen to the things that he’s going to have to admit, but that he will adamantly deny that he ever penetrated this girl’s vagina with his finger or any other part of his body.

The incriminating testimony about penetration in the prosecution’s case came from Dr. Gushurst and the child herself. Dr. Gushurst described her physical examination, and the child testified that Thompson’s “finger went between” where she goes to the bathroom. She further testified that Thompson moved his finger along the outside of her vagina, between the “fleshy areas,” and that the touching lasted minutes. The prosecution also showed the jury the forty-four minute recording of Thompson’s police interview. After the prosecution’s case, the defense rested without calling Thompson or anyone else to testify.

Before jury deliberations, the trial court instructed the jury: “Every defendant has the absolute right not to testify. When you decide this case you must not consider the fact that he did not testify. It must not affect your verdict in any way.” The jury convicted Thompson on all counts. Thompson filed a motion for new trial in the state court, asserting an ineffective-assistance claim based on defense counsel’s failure to call Thompson as a witness after promising the jury they would hear Thompson’s live testimony. At an evidentiary hearing held on the motion, defense counsel established that the video interview was instrumental in his decision not to put Thompson on the stand. When defense counsel made his opening statement, his “strategy ... would have involved [Thompson] testifying.” However, defense counsel also wanted to “keep [his] options open” until he saw the video’s effect on the jury. Once the prosecution played the video at trial, counsel decided Thompson’s statements in the video were more helpful to his defense than live testimony would have been, based on Thompson’s state of mind and the jury’s reaction to the video, particularly because live testimony would have subjected Thompson to cross examination.

Following the hearing, the state trial court denied Thompson’s motion for a new trial. The court held that defense counsel’s deviation from his initial plan to have Thompson testify was not deficient under Strickland. The court also held that, because Thompson was able to present his defense through the video evidence, defense counsel’s performance did not prejudice the defense. The Michigan Court of Appeals affirmed this decision. See Thompson I, 2009 WL 4985244, at *1. The appellate court adopted the trial court’s rationale about why defense counsel’s conduct was not deficient. See id. The court also agreed there was no prejudice, but gave its own reasoning:

The jury heard from [the] defendant by way of a video recording of a police interrogation, which counsel found to be superior to putting defendant on the stand. Given the evidence of guilt, the limited harm, if any, of the broken promise that defendant would testify, and given the court’s instruction to the jury that it could not consider defendant’s failure to take the stand in rendering its verdict, we find that defendant has not shown that there existed a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.

Id.

After exhausting his state-court remedies, Thompson filed a petition for writ of habeas corpus with the district court, asserting the same ineffective-assistance claim. The district court held that defense counsel’s conduct was deficient, and that under 28 U.S.C. § 2254(d)(1), it was unreasonable for the state courts to conclude otherwise. See Thompson v. Rapelje CThompson II), No. 12-10781, 2015 WL 1345250, at *14 (E.D. Mich. Mar. 25, 2015). Nonetheless, the district court upheld the Michigan Court of Appeals' decision as a reasonable application of Strickland’s prejudice prong. See id. at *15. The district court thus rejected Thompson’s habeas petition, which he now appeals.

Thompson argues- that defense counsel was objectively unreasonable by promising Thompson’s testimony to the jury when counsel doubted whether he would call Thompson as a witness. Thompson relies on several court-of-appeals decisions, including a Sixth Circuit case, holding that similar conduct is deficient under Strickland. See English v. Romanowski, 602 F.3d 714, 728-29 (6th Cir. 2010); U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, (7th Cir. 2003); Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002); Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988). The district court accepted Thompson’s argument and further held that the Michigan Court of Appeals’ opposite conclusion was “an unreasonable application of[ ] clearly established Federal law.” 28 U.S.C. § 2254(d)(1); see Thompson II, 2015 WL 1345250, at *14.

However, this court ultimately need not evaluate the reasonableness of the state court’s deficiency decision, because assuming defense counsel’s conduct was deficient, the Michigan Court of Appeals reasonably applied Strickland’s second prong when it decided that any error did not prejudice Thompson’s defense. A successful ineffective-assistance claim requires the plaintiff to prove both deficient conduct and prejudice, Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), so the lack of prejudice in this case is dispositive. The prejudice issue was actually raised in and fully addressed by the state court, so AEDPA deference applies under 28 U.S.C. § 2254(d)(1). See Thompson I, 2009 WL 4985244, at *1. Therefore, the relevant question before this court is whether the state court reasonably decided “there [was no] reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been differ,-ent.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The answer is yes: the Michigan Court of Appeals reasonably concluded that counsel’s failure to deliver Thompson’s live testimony did not prejudice Thompson’s defense for three reasons.

First, the state court recognized the importance of the trial court’s instruction to the jury not to consider Thompson’s failure to testify in reaching a verdict. See Thompson I, 2009 WL 4985244, at *1. Even considering that prejudice could have arisen from defense counsel’s broken promise that Thompson would testify, the court’s instruction was ameliorative. Juries presumptively follow the law. CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841, 129 S.Ct. 2139, 173 L.Ed.2d 1184 (2009); see Strickland, 466 U.S. at 694, 104 S.Ct. 2052. It was therefore reasonable for the Michigan Court of Appeals to conclude that the jury followed the instruction and that the instruction likely helped mitigate any damage arising from Thompson’s failure to testify.

Second, the state court pointed to the evidence of penetration at trial. The child testified that Thompson’s finger went between where she went to the bathroom, that Thompson moved his finger between the fleshy areas outside of her vagina, and that the touching lasted minutes. It is true that the evidence against Thompson was also uncertain at times—the child “wasn’t sure” if Thompson’s finger penetrated her labia—but there was evidence of guilt for the jury to rely on nonetheless.

Third, and most importantly, the state court noted that the jury was able to hear Thompson’s side of the story, directly from Thompson, through the video interview. See Thompson I, 2009 WL 4985244, at *1. The video evidence distinguishes this case from the other court-of-appeals decisions Thompson cites. See English, 602 F.3d 714; Leibach, 347 F.3d 219; Ouber, 293 F.3d 19; Anderson, 858 F.2d 16. Thompson urges that, as in these parallel cases, defense counsel’s broken promise inherently harmed Thompson’s defense because, in a he-said-she-said battle-with minimal evidence of guilt, anything that diminishes the defendant’s credibility monumentally prejudices his defense. However, none of Thompson’s parallel cases involved defense counsel substituting a video interview for live testimony. Thompson’s guilt for first-degree criminal sexual conduct turned on whether he penetrated the child. Thompson denied penetration in the video, as he would have through live testimony. Thus there was little for Thompson to add-to his defense through live testimony. Indeed, live testimony easily could have done more harm than good through impeachment on cross examination. In fact, defense counsel found Thompson’s demeanor and statements in the video to be more effective than live testimony would have been. Thus, unlike in the other cited cases, here Thompson had his full say in this close, he-said-she-said matter. Regardless of whether this panel would have made the same determination of no prejudice on direct appeal, the district court correctly concluded that the application of Strickland’s prejudice prong by the Michigan Court of Appeals was reasonable.

The judgment of the district court is affirmed.