On April 9, 2013, the Eleventh Circuit (Pryor with Dubina; dissent by Martin) issued an unpublished order denying Florida death row inmate Larry Mann's request for a certificate of appealability (COA) so that Mann could appeal the district court's denial of Mann's Rule 60(b) motion. Mann v. Moore, 13-11322-P. Mann received sentencing relief on two occasions. After again receiving a sentence of death, Mann raised a claim that his trial attorney was ineffective for failing to establish the prejudicial effects of the presence of a victims' rights organization during the third sentencing proceeding. The state court denied relief, concluding that trial counsel had not performed deficiently. A federal district court also rejected the claim, citing comments by the trial court to members of the victims' rights group praising their conduct during the trial. Mann moved to expand the record to include four affidavits that he claimed demonstrated the intimidation and tension caused by the victim's family and the victims' rights group, as well as newspaper articles describing requests by the victim's family to have the victims' rights group pack the courtroom as well as reactions to the verdict and sentence. The motion was denied on the ground that Mann failed to develop the evidence while in state court. Looking only to the state court record the district court denied the claim on the merits and declined to issue a COA on the claim, as did the Eleventh Circuit.
After a death warrant was signed, Mann filed a motion for relief from judgment under Fed.R.Civ.Pro. Rule 60(b). He asked the district court to reconsider its denial of the motion to expand the record in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012), which established that state post-conviction counsel's failure to present the evidence could provide cause to excuse the lack of diligence in state court. Although the district court found that the motion was proper under Rule 60(b), it concluded that the underlying ineffective assistance of trial counsel claim was not a "substantial one." Given that the state post-conviction judge was the same judge that had commented about the victims' rights group's good behavior at the time of trial, the district court concluded the new evidence would not have caused the post-conviction court to reject its own observations and find deficient performance and prejudice.
The Eleventh Circuit panel majority first expressed its doubts that Mann's motion was properly brought under Rule 60(b), noting: "To allow Mann to attack an evidentiary ruling related to a claim that was later denied on the merits would impermissibly circumvent the limitations on successive habeas petitions." The majority next stated its doubt that Martinez applied to permit Mann to challenge post-conviction counsel's failure to present the new evidence when the underlying constitutional claim was not procedurally defaulted. The panel majority did not resolve these issues, however, given its agreement with the lower court's finding that the claim at issue was not substantial.
In dissent, Judge Martin argued, inter alia, that the district court erred by applying the Strickland prejudice standard when deciding whether to reopen the proceedings, rather than the test of "some merit" contained in Martinez.