Andrew MacKey v. Thomas Hoffman ( 2012 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ANDREW MACKEY,                           
    Petitioner-Appellant,
    No. 11-15115
    v.
    THOMAS G. HOFFMAN; DAVID                          D.C. No.
    3:07-cv-04189-SI
    RUNNELS,
    Respondents-Appellees.                  OPINION
    
    Appeal from the United States District Court
    for the Northern District of California
    Susan Illston, District Judge, Presiding
    Argued and Submitted
    February 15, 2012—San Francisco, California
    Filed June 25, 2012
    Before: Arthur L. Alarcón and Barry G. Silverman,
    Circuit Judges, and Marvin J. Garbis, Senior District Judge.*
    Opinion by Judge Garbis
    *The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
    District Court for Maryland, sitting by designation.
    7517
    MACKEY v. HOFFMAN                  7519
    COUNSEL
    Randall Riccardo (argued) (Mill Valley, California), Kent A.
    Russell (San Francisco, California) of Russell & Russell, and
    LeRue James Grim (San Francisco, California) for the
    petitioner-appellant.
    Christopher Joseph Wei (argued), Office of the California
    Attorney General (San Francisco, California), for the
    respondents-appellees.
    OPINION
    GARBIS, District Judge:
    This Court has jurisdiction pursuant to 28 U.S.C. § 2253
    over this appeal, arising out of a habeas corpus proceeding
    under § 2254 in which a certificate of appealability has been
    granted. We review motions for relief from judgment pursu-
    ant to Federal Rule of Civil Procedure 60(b) under an abuse
    of discretion standard. Wilson v. City of San Jose, 
    111 F.3d 688
    , 691 (9th Cir. 1997).
    7520                   MACKEY v. HOFFMAN
    As discussed herein, we hold that a district court may grant
    an incarcerated habeas petitioner relief from judgment pursu-
    ant to Federal Rule of Civil Procedure 60(b)(6) if his attor-
    ney’s abandonment causes him to fail to timely file a notice
    of appeal.
    I.    BACKGROUND
    In 2004, Petitioner Andrew Mackey (“Mackey ”) was con-
    victed of attempted murder and other crimes in the San Fran-
    cisco County Superior Court. Mackey was sentenced to a term
    of life with the possibility of parole plus 25 years to life.
    Retained attorney LeRue Grim (“Grim ”) represented Mackey
    in post-trial proceedings, including a motion for new trial and
    direct appeal. Grim further represented Mackey in state post-
    conviction proceedings that concluded with the California
    Supreme Court’s denial of a petition for review and a petition
    for writ of habeas corpus in August 2006.
    In August 2007, Grim filed a timely petition pursuant to 28
    U.S.C. § 2254 in the United States District Court for the
    Northern District of California, asserting that Mackey had
    been denied the effective assistance of counsel. After receiv-
    ing Mackey’s petition, in August 2007 the district court issued
    a routine order directing Respondent to show cause why the
    writ of habeas corpus should not be granted. Respondent filed
    its response in February 2008. Grim did not file a traverse by
    the March 2008 due date.
    In June 2008, Grim wrote Mackey a letter stating:
    Sorry about not writing. I know it means a lot to you.
    Your case is before the federal court in San Fran-
    cisco. The state attorney general has filed his
    response and we are awaiting a trial date. I expect
    you will be brought to San Francisco for the trial.
    MACKEY v. HOFFMAN                           7521
    Please write your parents and ask them to pay some-
    thing on the legal bill.
    Thanks.
    No hearing was ever scheduled and Grim did nothing fur-
    ther. On July 13, 2009, the district court denied the petition
    on the merits and entered judgment against Mackey. Grim,
    although receiving prompt1 notification of the entry of judg-
    ment, neither notified Mackey of the entry of judgment nor
    filed a Notice of Appeal.2
    Eight months after the entry of judgment, in March 2010,
    Mackey wrote a letter to the district court stating that he was
    “unaware of the current status” of his case. The district court
    clerk responded by providing a copy of the docket sheet to
    Mackey that reflected the denial of the petition and the entry
    of judgment on July 13, 2009. In response, Mackey wrote a
    second letter to the district court, expressing concern about his
    appellate rights, stating, “my lawyer has been telling me for
    months that I have been granted and evidentuary [sic]. He
    tells me I have a court date comeing [sic].” The district court
    ordered Grim to respond to Mackey’s letters.
    In April 2010, Grim filed a signed declaration with the
    court stating that Mackey had retained him for the state post-
    conviction proceedings, and that Mackey’s parents had only
    partially paid Grim for those services. Grim said that he pre-
    pared and filed Mackey’s § 2254 petition pro bono, and that
    in September 2007, he “fully informed” Mackey and his fam-
    ily that he “couldn’t do any more, beyond preparing and filing
    the [§ 2254 petition], for nothing.” Grim further stated that
    during the next two and a half years, Mackey and his friends
    called Grim repeatedly, and Grim repeatedly told them that
    1
    The notification was sent by email on July 13, 2009.
    2
    Federal Rule of Appellate Procedure 4(a) requires the filing of a Notice
    of Appeal within 30 days of a judgment from which an appeal is taken.
    7522                  MACKEY v. HOFFMAN
    Mackey’s parents “had not made any arrangements with [him]
    or any other attorney to handle the federal habeas and they
    should call his parents and urge them to do something.” Grim
    further stated that he left numerous voicemail messages for
    the parents, urging them to “make arrangements.” He notes
    that, during this time, he “had difficulty making [Mackey]
    understand what the procedure was and his need to have his
    parents take care of business.” Grim did not state to the dis-
    trict court that he informed Mackey when his petition was
    denied and admitted that after filing an amended § 2254 peti-
    tion within a week of filing the original petition, he “did noth-
    ing more on the case in court.”
    In response to Mackey’s statement to the district court, that
    Grim had told Mackey that a court date had been set, Grim
    said:
    As to Petitioner Andrew Mackey’s letter, stating I
    told him a court date had been set, he misunderstood
    what I said. I told him about the order to show cause
    to the Attorney General, about the response, that
    papers needed to be filed in [sic] his behalf, and that
    there should eventually be a hearing, that there is
    much preparation to be done before that happens,
    that eventually the court will set the date, that he
    needed have [sic] his parents make arrangements for
    a lawyer to handle the matter and get moving on it.
    Mackey responded to this by providing the district court
    with the above-quoted June 2008 letter from Grim stating “we
    are awaiting a trial date.” Mackey told the district court that
    the June 2008 letter was “one of the first times that LeRue
    Grim stated we are awaiting a trial date on and evidentuary
    [sic] hearing,” and that Grim “has lied to me continuously
    about and evidentuary [sic] hearing.”
    Thereafter, Grim filed an additional declaration with the
    district court, in which he reiterates that he was retained by
    MACKEY v. HOFFMAN                        7523
    Mackey’s parents, who then stopped paying him and appar-
    ently abandoned their son’s legal defense. Grim concludes:
    The failure of his parents to help him was not peti-
    tioner’s fault. It was not my fault. It may not have
    been their fault. It is obvious the parents are not
    going to put up any money to help Mr. Mackey in
    his case before this Court. Petitioner Andrew
    Mackey has been deprived of counsel in this habeas
    corpus proceeding through no fault of his own. Fair-
    ness suggests the Court should vacate to order [sic]
    dismissing the petition and reinstate the habeas cor-
    pus proceeding and appoint counsel to represent
    petitioner.
    The district court conducted a telephonic case management
    conference in June 2010. In the course of the conference, the
    district court stated:
    My concern, however, is that based on what I think
    was a failure of communication, Mr. Mackey was
    not aware of that fact [that his petition had been
    denied] and so, therefore, any kind of appeal dead-
    line for appealing from my ruling passed without his
    opportunity to consider it. . . . [M]y plan is this: My
    plan is to either reissue the order or — if I still can
    do this . . . issue an extension of time to file an
    appeal.
    The district court noted that Mackey did not have a consti-
    tutional right to counsel on his habeas position, but asked
    Grim to undertake to file an appeal on Mackey’s behalf once
    the procedural barriers were lifted. Grim agreed to do so, and
    orally made a motion seeking to have the district court vacate
    the July 2009 judgment and reopen the case.
    In a December 2010 order, the district court denied the
    motion to vacate. The district court stated that, upon further
    7524                     MACKEY v. HOFFMAN
    research of the procedural issue, citing In re Stein, 
    197 F.3d 421
     (9th Cir. 1999), it had determined that it lacked discretion
    to vacate the judgment pursuant to Federal Rule of Civil Pro-
    cedure 60(b) and enter a new judgment to afford Mackey the
    opportunity to appeal. The court also concluded that Federal
    Rule of Appellate Procedure 4(a)(6) prevented it from con-
    struing Mackey’s letter as a motion for an extension of time
    to file a notice of appeal. The district court “emphasize[d] that
    if it possessed the discretion to vacate and reenter the judg-
    ment in order to allow petitioner the opportunity to appeal, the
    Court would do so.”
    On December 29, 2010, Mackey, by Kent Russell, Esquire,3
    filed a notice of appeal from the denial of the motion and
    sought a certificate of appealability on the issue of whether
    the district court had erred in denying his request to vacate the
    July 2009 judgment to allow him the opportunity to appeal.
    Mackey contended that his failure to timely appeal “resulted
    from his attorney’s [Grim’s] gross negligence and failure to
    communicate, which deprived [him] of notice and the oppor-
    tunity to be heard.” In January 2011, the district court issued
    a certificate of appealability.
    II.    DISCUSSION
    We address herein the district court’s ability to grant
    Mackey relief from the judgment issued July 13, 2009 pursu-
    ant to Rule 60(b)(6).4
    [1] Rule 60(b) of the Federal Rules of Civil Procedure pro-
    vides that a district court may relieve a party from a final judg-
    3
    Whom Mackey had retained as “associate counsel” in September 2010.
    Grim has remained an attorney of record for Mackey through the instant
    appeal.
    4
    Because we hold that Mackey may obtain relief pursuant to Rule
    60(b)(6), we do not address his alternative “independent action in equity”
    theory based upon Grim’s alleged fraud.
    MACKEY v. HOFFMAN                           7525
    ment,5 order, or proceeding for several enumerated grounds6
    as well as “any other reason that justifies relief.” Fed. R. Civ.
    P. 60(b)(6).
    The Supreme Court first addressed Rule 60(b)(6) in Klap-
    prott v. United States, 
    335 U.S. 601
     (1949), stating, “[i]n sim-
    ple English, the language of the ’other reason’ clause, for all
    reasons except the five particularly specified, vests power in
    courts adequate to enable them to vacate judgments whenever
    such action is appropriate to accomplish justice.” 335 U.S. at
    614-15. Thereafter, in Ackermann v. United States, 
    340 U.S. 193
     (1950), the Supreme Court somewhat narrowed the scope
    of the rule, holding that it would not provide relief for a “free,
    calculated, deliberate choice[ ]” not to appeal, where
    “[n]either the circumstances of petitioner nor his excuse for
    not appealing is so extraordinary as to bring him within Klap-
    prott or Rule 60(b)(6).” 340 U.S. at 198, 202. This Court has
    held that “[i]n order to bring himself within the limited area
    of Rule 60(b)(6) a petitioner is required to establish the exis-
    tence of extraordinary circumstances which prevented or ren-
    dered him unable to prosecute an appeal.” Martella v. Marine
    Cooks & Stewards Union, Seafarers Int’l Union of N. Am.,
    AFL-CIO, 
    448 F.2d 729
    , 730 (9th Cir. 1971).
    [2] This Court has held that gross negligence by counsel
    amounting to “virtual[] abandon[ment]” can be an “extraordi-
    nary circumstance” that justifies vacating a default judgment
    pursuant to Rule 60(b)(6). See Cmty. Dental Servs. v. Tani,
    
    282 F.3d 1164
    , 1169-71 (9th Cir. 2002) (holding that client
    has shown “extraordinary circumstances” meriting relief from
    default judgment where attorney “fail[ed] to proceed with his
    client’s defense despite court orders to do so” and “deliber-
    5
    “A motion under Rule 60(b) must be made within a reasonable time—
    and for reasons (1), (2), and (3) no more than a year after the entry of the
    judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).
    6
    Including mistake, excusable neglect, newly discovered evidence, and
    fraud. See Fed. R. Civ. P. 60(b)(1)-(5).
    7526                   MACKEY v. HOFFMAN
    ately deceived Tani about the services he was supposed to be
    performing” thus “depriving him of the opportunity to take
    action to preserve his rights”). Relief in such a case is justified
    because gross negligence by an attorney, defined as “neglect
    so gross that it is inexcusable,” “vitiat[es] the agency relation-
    ship that underlies our general policy of attributing to the cli-
    ent the acts of his attorney.” Id. at 1168, 1171 (internal
    quotation marks omitted).
    In Latshaw v. Trainer Wortham & Co., 
    452 F.3d 1097
     (9th
    Cir. 2006), this Court stated that our decision in Tani was
    explicitly premised upon the default judgment context of the
    case and declined to extend the holding to the context of Rule
    68 offers of judgment. 452 F.3d at 1103-04. Nevertheless, in
    Lal v. California, 
    610 F.3d 518
     (9th Cir. 2010), we held that
    relief from judgment under Rule 60(b)(6) was warranted for
    gross negligence of counsel in failing to prosecute. 610 F.3d
    at 524.
    In the instant case, the district court held that, in light of our
    decision in In re Stein, 
    197 F.3d 421
     (9th Cir. 1999), it lacked
    discretion to vacate the judgment pursuant to Federal Rule of
    Civil Procedure 60(b) and enter a new judgment to afford
    Mackey the opportunity to appeal.
    In In re Stein, judgment was entered against an attorney
    and a law firm that were parties in the case and that had filed
    timely post-trial motions that were denied. 197 F.3d at 423.
    The attorney and law firm failed to file a timely notice of
    appeal because they had not received notice of the entry of the
    orders from which they sought to appeal. Id. They sought
    relief pursuant to Rule 60(b)(6) or by virtue of an extension
    of time to appeal. Id.
    This Court denied relief, stating that “Rule 4(a) [of the Fed-
    eral Rules of Appellate Procedure] and Rule 77(d) [of the
    Federal Rules of Civil Procedure] now form a tessellated
    scheme; they leave no gaps for Rule 60(b) to fill.” Id. at 426.
    MACKEY v. HOFFMAN                         7527
    Rule 77(d)(1) provides that the district court clerk shall
    immediately serve notice of an order or judgment on each
    party. However, Rule 77(d)(2) states “[l]ack of notice of the
    entry does not affect the time for appeal or relieve—or autho-
    rize the court to relieve—a party for failing to appeal within
    the time allowed, except as allowed by Federal Rule of
    Appellate Procedure 4(a).” Rule 4(a) provides that a district
    court may reopen the time to file an appeal based on a failure
    to receive notice under Rule 77(d) only if the motion is filed
    within the earlier of 14 days after the movant received notice
    or 180 days after the entry of the judgment or order appealed
    from.7 Since the motion in In re Stein was filed outside the
    Rule 4(a) 180-day time period, Rule 60(b)(6) could not be
    used to cure the problem of lack of Rule 77(d) notice.
    Unlike the appellants in In re Stein, Mackey is not seeking
    to utilize Rule 60(b)(6) to cure a Rule 77(d) “lack of notice”
    problem. Indeed, Rule 77(d) notice was given to Mackey’s
    counsel of record. Rather, Mackey seeks to utilize Rule
    60(b)(6) to cure the problem caused by his being misled and
    abandoned by his counsel of record. See Tani, 282 F.3d at
    1171.
    7
    The Rule states:
    The district court may reopen the time to file an appeal for a
    period of 14 days after the date when its order to reopen is
    entered, but only if all the following conditions are satisfied:
    (A)   the court finds that the moving party did not receive
    notice under Federal Rule of Civil Procedure 77(d) of
    the entry of the judgment or order sought to be
    appealed within 21 days after entry;
    (B)   the motion is filed within 180 days after the judgment
    or order is entered or within 14 days after the moving
    party receives notice under Federal Rule of Civil Pro-
    cedure 77(d) of the entry, whichever is earlier; and
    (C)   the court finds that no party would be prejudiced.
    Fed. R. App. P. 4(a)(6).
    7528                   MACKEY v. HOFFMAN
    In Maples v. Thomas, 
    565 U.S.
    ___, 
    132 S. Ct. 912
     (2012),
    an inmate failed to timely appeal the denial of his state post-
    conviction petition in state court because, unbeknownst to
    him, his volunteer attorneys had abandoned him after filing
    the petition. 132 S. Ct. at 926. Therefore, he was never noti-
    fied of the denial, until the time to appeal had lapsed. Id. at
    919-20. After an Alabama Assistant Attorney General sent a
    letter directly to Maples informing him of the missed dead-
    line, Maples moved the trial court to reissue its order, thereby
    restarting the appeal period. Id. at 920. The motion was
    denied and the Alabama Supreme Court affirmed. Id. at 920-
    21. Thereafter, Maples sought federal habeas relief. Id. at 921.
    The district court and the court of appeals denied his request
    based on the procedural default in state court—that Maples
    had failed to timely appeal the state trial court’s denial of his
    petition for postconviction relief. Id.
    The Supreme Court held that Maples’ abandonment by his
    attorneys constituted an “extraordinary circumstance[] beyond
    his control,” that justified lifting the state procedural bar to his
    federal petition. Id. at 924, 927. The Court noted that,
    although an attorney is normally the prisoner’s agent, and the
    principal typically bears the risk of negligent conduct on the
    part of his agent under well-settled principles of agency law,
    “[a] markedly different situation is presented, however, when
    an attorney abandons his client without notice, and thereby
    occasions the default.” Id. at 922. “Under agency principles,
    a client cannot be charged with the acts or omissions of an
    attorney who has abandoned him. Nor can a client be faulted
    for failing to act on his own behalf when he lacks reason to
    believe his attorneys of record, in fact, are not representing
    him.” Id. at 924. In Maples’ case, because his attorneys had
    failed to withdraw as attorneys of record when they had effec-
    tively abandoned the case, they deprived Maples of his right
    to personally receive notice without any warning to him that
    he “had better fend for himself.” Id. at 925-27.
    In the instant case, Grim failed to observe the district
    court’s rule requiring him to seek permission to withdraw as
    MACKEY v. HOFFMAN                     7529
    attorney of record. See N.D. Cal. Civ. R. 11-5 (“Counsel may
    not withdraw from an action until relieved by order of Court
    after written notice has been given reasonably in advance to
    the client and to all other parties who have appeared in the
    case.”). Because Grim failed to notify the court of his inten-
    tion to withdraw, Mackey was deprived of the opportunity to
    proceed pro se and to personally receive docket notifications
    from the court. See Maples, 132 S. Ct. at 924-25. As a result,
    Mackey, an indigent prisoner who had been misled by his
    attorney to believe that he was awaiting a trial or hearing date
    and believed that his attorney was continuing to represent
    him, was wholly unaware that the district court had denied his
    § 2254 petition.
    [3] “A federal habeas petitioner—who as such does not
    have a Sixth Amendment right to counsel—is ordinarily
    bound by his attorney’s negligence, because the attorney and
    the client have an agency relationship under which the princi-
    pal is bound by the actions of the agent.” Towery v. Ryan, 
    673 F.3d 933
    , 941 (9th Cir. 2012), cert. denied, 
    132 S. Ct. 1738
    (2012). However, when a federal habeas petitioner has been
    inexcusably and grossly neglected by his counsel in a manner
    amounting to attorney abandonment in every meaningful
    sense that has jeopardized the petitioner’s appellate rights, a
    district court may grant relief pursuant to Rule 60(b)(6). See
    Maples, 132 S. Ct. at 924; Tani, 282 F.3d at 1170; Lal, 610
    F.3d at 524.
    [4] Granting relief to Mackey is not barred by Bowles v.
    Russell, 
    551 U.S. 205
     (2007), which held that the time periods
    prescribed by Rule 4(a)(6) are “mandatory and jurisdictional.”
    551 U.S. at 209 (internal quotation marks omitted) (holding
    that appellate court lacked jurisdiction to hear appeal from
    denial of habeas petition where district court had erroneously
    granted the petitioner a 17-day period to file his notice of
    appeal, rather than the 14-day period prescribed by Rule
    4(a)(6), and the petitioner had filed his appeal on the sixteenth
    day). Mackey is not receiving relief pursuant to Rule 4(a)(6).
    7530                  MACKEY v. HOFFMAN
    The district court correctly noted that it could not consider
    Mackey’s March 2010 letter as a motion to extend the time
    to file a notice of appeal because it was made outside Rule
    4(a)(6)’s 180-day limitations period. Mackey is seeking relief
    pursuant to Rule 60(b)(6) to cure a problem caused by attor-
    ney abandonment and not by a failure to receive Rule 77(d)
    notice.
    Mackey contends that he has demonstrated that extraordi-
    nary circumstances—here, abandonment by counsel of record
    —prevented him from being notified of the order denying his
    federal habeas petition. If he has done so, justice requires that
    relief be granted so that he may pursue an appeal. See Klap-
    prott, 335 U.S. at 614-15.
    [5] The district court, in its order denying Mackey’s
    request to vacate the judgment, stated that “if it possessed the
    discretion to vacate and reenter the judgment in order to allow
    petitioner the opportunity to appeal, the Court would do so.”
    We hold that the district court would possess such discretion
    if it were to find that Grim effectively abandoned Mackey,
    causing Mackey to fail to file a timely notice of appeal.
    Therefore we remand this case with instructions to the district
    court to make a finding as to whether Grim’s action and/or
    inaction constituted abandonment and, if so, whether to exer-
    cise its discretion to grant the relief sought by Mackey.
    Conclusion
    We reverse and remand with instructions for the district
    court to proceed in a manner consistent with this opinion.
    REVERSED AND REMANDED.