Mark Foley v. Martin Biter

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK D. FOLEY, No. 12-17724
Petitioner-Appellant,
D.C. No.
v. 2:01-cv-00714-MCE-JFM
MARTIN BITER, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
June 8, 2015—San Francisco, California
Filed July 14, 2015
Before: Mary M. Schroeder, Dorothy W. Nelson,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 FOLEY V. BITER
SUMMARY*
Habeas Corpus
The panel reversed the district court’s order denying Mark
Foley’s motion pursuant to Fed. R. Civ. P. 60(b) for relief
from the 2004 denial of his habeas corpus petition in a case
in which Foley’s counsel never informed Foley that the court
denied his petition and Foley only discovered that his petition
was denied six years later when he sent a letter to the court
inquiring about its status.
The panel held (1) that the district court erred by finding
that Foley was not abandoned by his attorney, (2) that the
abandonment directly prevented Foley from timely appealing
the denial of his habeas petition, and (3) that the motion for
relief was timely because once Foley learned his petition had
been denied, he made reasonable efforts to determine whether
relief was available and how to seek such relief. The panel
remanded for further proceedings.
COUNSEL
Heather Williams, Federal Defender, Carolyn M. Wiggin
(argued), Assistant Federal Public Defender, Sacramento,
California, for Petitioner-Appellant.
Kamala Harris, Attorney General, Michael Farrell, Senior
Assistant Attorney General, Eric Christoffersen, Supervising
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FOLEY V. BITER 3
Deputy Attorney General, Mark Johnson and Sally Espinoza
(argued), Deputy Attorneys General, Office of the California
Attorney General, Sacramento, California, for Respondent-
Appellee.
OPINION
CHRISTEN, Circuit Judge:
Mark Foley appeals the district court’s order denying his
motion for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b)(6). Foley, who was convicted of
murder in California state court, properly filed a petition for
habeas corpus in federal district court in 2001. The district
court denied his petition in 2004. Foley’s counsel, Mark
Greenberg, forgot that he represented Foley and never
informed Foley that the court denied his petition. Foley only
discovered that his petition was denied six years later when
he sent a letter to the court inquiring about its status. Because
Greenberg’s abandonment of Foley directly prevented Foley
from timely appealing the district court’s denial of his habeas
petition, and because Foley made reasonable efforts to pursue
his claims, we reverse the district court’s order.
BACKGROUND
For his involvement in a drug-related shooting death, a
California jury found Mark Foley guilty of first degree
murder, conspiracy to commit assault with a firearm,
conspiracy to commit extortion, kidnapping for extortion, and
kidnapping. The court sentenced Foley to life in prison
without the possibility of parole with a four-year
enhancement for use of a firearm, plus a consecutive,
4 FOLEY V. BITER
determinative sentence of 20 years and eight months. The
California Court of Appeal affirmed Foley’s conviction, and
the California Supreme Court summarily denied Foley’s
petition for review.
Foley filed a petition for a writ of habeas corpus in federal
district court on April 12, 2001. On December 21, 2002,
while the petition was pending, attorney Greenberg sent a
letter to Foley stating: “I know it’s been a long time. The
federal courts are super slow. Nothing to do but wait. I hope
you have a nice holiday under the circumstances.” This was
apparently the last communication from Greenberg to Foley.
On July 1, 2004, a magistrate judge issued findings and a
recommendation to deny Foley’s petition. The district court
adopted the magistrate’s findings and recommendation in full
and denied Foley’s petition on August 18, 2004. Greenberg
did not inform Foley that the court denied his petition, nor did
he respond to Foley’s subsequent letters.
On February 12, 2010, Foley wrote a letter to the district
court inquiring about the status of his habeas petition. He
stated: “It’s been 9 years and I’m deeply concerned
something’s wrong. Will you ‘please’ [sic] let me know
what’s up.” The clerk informed Foley that the district court
denied his petition on August 18, 2004. Foley sent another
letter to the court on March 4, 2010, inquiring why he was not
notified that his petition was denied.
In response to Foley’s March 4, 2010 letter, the district
court ordered the clerk to send a copy of the letter to
Greenberg and serve a copy of the order on Foley. Greenberg
received the copy of Foley’s letter sent by the court, but
apparently did not communicate with Foley. On August 2,
2010, Foley again wrote to the court, explaining that
FOLEY V. BITER 5
Greenberg still had not contacted him to either notify him of
the denial or explain the failure to notify him. Foley
requested that the court issue an order requiring Greenberg to
(1) “show proof that he notified [Foley] of the denial in a
timely manner”; (2) show “good cause as to why he never
notified [Foley]”; and (3) send Foley copies of all filings
involved in his case. On January 27, 2011, the district court
ordered Greenberg to respond to Foley’s August 2, 2010
letter within thirty days.
Greenberg filed a declaration on February 25, 2011. He
averred that he did not inform Foley that the district court
denied his petition, and speculated that this failure may have
occurred because he was working on two capital cases that
“distracted [him] from [his] usually heavy case load of
appointed state court appeals” around the time the district
court entered its order denying Foley’s petition. Greenberg
also averred that he had no memory of Foley’s federal habeas
action, and though he recalled continuing to receive letters
from Foley, he ignored Foley’s correspondence because he
considered Foley to be a former client.
On the same day he filed his declaration, Greenberg sent
the following letter to Foley:
I am writing this letter in accord with the
Court order of January 27, 2011 setting forth
a response to your inquiries. I thought it best
to do it in the form of a declaration. I am
filing both the letter and the declaration with
the Court. I hope this helps. However, do not
expect the Court to act on its own without any
further motion or request from you. If I can
help further, let me know.
6 FOLEY V. BITER
On July 10, 2011, Foley sent another letter to the court.
The letter stated:
First and foremost I would like to thank you
for all your help in guiding me through this
legal mess that I know nothing about. I’ve
tried unsuccessfully to obtain counsel to help
me take my case to get back into the courts,
mostly due to lack of funds. . . .
Based on the declaration submitted to the
court by my lawyer of record, Mark D.
Greenberg . . . [,] I would like to respectfully
request that the court allow me back into the
courts to continue my appeal (rights) process
afforded to me under the United States
Constitution, specifically the 14th
Amendment. I’m not sure what all is needed
so I’ve enclosed everything I have. . . .
The court issued an order on July 2, 2012, construing
Foley’s letter as a motion for relief from judgment pursuant
to Federal Rule of Civil Procedure 60(b)(6). On September
12, 2012, the magistrate judge issued findings and a
recommendation that the district court deny Foley’s motion.
The magistrate judge concluded that Greenberg’s failure to
notify Foley of the denial of his habeas petition did not rise to
the level of attorney abandonment required for relief from
judgment under Rule 60(b)(6), and that Foley’s inability to
communicate with Greenberg after Foley learned that his
petition was denied did not prevent him from seeking relief
from judgment. The district court adopted the magistrate’s
findings and recommendation and denied Foley’s motion for
relief from judgment.
FOLEY V. BITER 7
STANDARD OF REVIEW
We review a district court’s denial of a motion for relief
from judgment pursuant to Rule 60(b) for abuse of discretion.
Pizzuto v. Ramirez, 783 F.3d 1171, 1175 (9th Cir. 2015)
(citing Towery v. Ryan, 673 F.3d 933, 940 (9th Cir. 2012)).
We must affirm the district court’s judgment “unless (1) we
have ‘a definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it
reached upon weighing the relevant factors,’ (2) the district
court applied the wrong law, or (3) the district court rested its
decision on clearly erroneous findings of fact.” Delay v.
Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007) (quoting SEC
v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)).
DISCUSSION
I. The district court erred by finding that Foley was not
abandoned by his attorney.
Rule 60(b)(6) “vests power in courts adequate to enable
them to vacate judgments whenever such action is appropriate
to accomplish justice.” Klapprott v. United States, 335 U.S.
601, 614–15 (1949). We apply this provision sparingly: “[a]
party is entitled to relief under Rule 60(b)(6) where
‘extraordinary circumstances prevented him from taking
timely action to prevent or correct an erroneous judgment.’”
Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004)
(alteration and citations omitted). Because a federal habeas
petitioner has no Sixth Amendment right to an attorney and
the attorney is the petitioner’s agent, a habeas petitioner is
“ordinarily bound by his attorney’s negligence.” Towery,
673 F.3d at 941. But the Supreme Court made clear in
Maples v. Thomas that “when an attorney abandons his client
8 FOLEY V. BITER
without notice,” the attorney has “severed the principal-agent
relationship [and] no longer acts, or fails to act, as the client’s
representative.” 132 S. Ct. 912, 922–23 (2012). Thus, a
petitioner may be excused from the consequences of his
attorney’s conduct where that conduct effectively severs the
principal-agent relationship. See id. at 923 (“Common sense
dictates that a litigant cannot be held constructively
responsible for the conduct of an attorney who is not
operating as his agent in any meaningful sense of that word.”
(quoting Holland v. Florida, 560 U.S. 631, 659 (2010) (Alito,
J., concurring))).
In Mackey v. Hoffman, a panel of our court relied on
Maples to hold that attorney abandonment may constitute the
extraordinary circumstances necessary to justify relief under
Rule 60(b)(6) where a petitioner fails to timely appeal the
district court’s denial of a habeas petition. 682 F.3d 1247,
1252–53 (9th Cir. 2012). In that case, a habeas petitioner’s
attorney sent him a letter informing him that his case was
before the federal court and expected that a trial date would
be set, but then failed to do anything further on the case and
did not inform the petitioner when the district court denied
the petition. Id. at 1248–49. The petitioner did not learn that
his petition had been denied until after expiration of the time
allowed to pursue an appeal. Id. at 1249. We concluded that
the district court erred by failing to consider whether the
petitioner was abandoned by his attorney, explaining that
“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
FOLEY V. BITER 9
may grant relief pursuant to Rule 60(b)(6).”1 Id. at 1253.
(citing Maples, 132 S. Ct. at 924). Subsequently, in Gibbs v.
Legrand, we held that “[f]ailure to inform a client that his
case has been decided, particularly where that decision
implicates the client’s ability to bring further proceedings and
the attorney has committed himself to informing his client of
such a development, constitutes attorney abandonment.”
767 F.3d 879, 886 (9th Cir. 2014) (emphasis in original).
In this case, the state argues that “[a]s a threshold matter,
[Foley] fails to establish that counsel did in fact fail to notify
him of the denial of his petition for writ of habeas corpus.”
We disagree. Greenberg forthrightly declared that “[t]hrough
inadvertence and neglect, I failed to inform Mr. Foley of this
1
On remand, the district court concluded that the attorney’s conduct
constituted abandonment:
Mr. Grim did not keep petitioner apprised of the status
of this case, and most importantly, he failed to inform
petitioner that the petition had been denied and that
judgment had been entered. Petitioner did not learn of
the denial until the time for appeal had lapsed, and this
abandonment by his counsel was an “extraordinary
circumstance beyond his control.” Maples, 132 S. Ct.
at 924 (holding that an inmate’s abandonment by his
attorneys constituted an “extraordinary circumstance
beyond his control” that justified lifting the state
procedural bar to his federal petition). As in Maples,
Mr. Grim failed to observe this Court’s rule requiring
him to seek permission to withdraw as attorney of
record, see N.D. Cal. Civ. R. 11–5, thereby depriving
petitioner of the opportunity to proceed pro se and to
receive notifications from the Court.
Mackey v. Hoffman, No. C 07-4189 SI, 2012 WL 4753512 at *1 (N.D.
Cal. Oct. 4, 2012).
10 FOLEY V. BITER
result at any time, and I failed to take any measures to
preserve his appellate rights and opportunities.” There is no
reasonable basis on which to question the truth of
Greenberg’s statement.
Foley argues that the district court’s conclusion that he
was not abandoned by Greenberg was an error of law. But
abandonment is not a question of law. Determining whether
a petitioner has been abandoned by counsel requires the
district court to make a factual finding, see Mackey, 682 F.3d
at 1254 (remanding with instructions for district court to
consider whether to make an abandonment finding), which
we review for clear error. Adams v. United States, 3 F.3d
1254, 1257 (9th Cir. 1993). Thus, whether the district court
abused its discretion in this case turns on whether “the district
court rested its decision on clearly erroneous findings of
fact.” Delay, 475 F.3d at 1043.
The district court clearly erred by finding that Foley was
not abandoned by counsel. Greenberg failed to notify Foley
that his petition had been denied, and he did not move to
withdraw as counsel so that Foley could be served directly.
Foley apparently believed Greenberg was representing him
and, based on Greenberg’s advice, expected a long delay
before receiving a decision from the district court. Under
these circumstances, Foley was effectively deprived of the
opportunity to appeal the district court’s denial of his habeas
petition. We conclude that Greenberg’s failure to
communicate with Foley, which included discarding Foley’s
unanswered letters under the mistaken impression that Foley
was no longer his client, severed the principal-agent
relationship between Foley and Greenberg. This failure to
communicate, to preserve Foley’s ability to appeal, and to
withdraw from the case clearly constituted abandonment. See
FOLEY V. BITER 11
Maples, 132 S. Ct. at 924–26 (holding that attorneys who left
their law firm without notifying the petitioner they could not
continue to represent him, withdrawing, or making
arrangements for his continued representation abandoned the
petitioner); Gibbs, 767 F.3d at 886 (holding that counsel’s
failure to notify petitioner of state supreme court’s denial of
his claim for post-conviction relief “constituted abandonment,
and thereby created extraordinary circumstances sufficient to
justify equitable tolling” of the federal habeas filing
deadline).
II. Foley’s motion for relief was timely.
The state argues that Foley’s motion for relief was itself
untimely. A motion for relief under Rule 60(b)(6) must be
made within a reasonable time, Fed. R. Civ. P. 60(c)(1), and
relief may only be granted where the petitioner has diligently
pursued review of his claims. See Gonzalez v. Crosby, 545
U.S. 524, 537 (2005); Lehman v. United States, 154 F.3d
1010, 1017 (9th Cir. 1998) (“Neglect or lack of diligence is
not to be remedied through Rule 60(b)(6).”). “What
constitutes a reasonable time depends on the facts of each
case.” In re Pacific Far East Lines, Inc., 889 F.2d 242, 249
(9th Cir. 1989) (internal quotation marks omitted).
The district court concluded that even if Greenberg failed
to notify Foley of the entry of judgment, Foley’s motion for
relief should be denied because 14 months passed after he
learned his petition was denied and before he filed his motion
for relief. The court reasoned that Foley’s “unsuccessful
efforts to communicate with Attorney Greenberg did not
render petitioner unable to seek relief from the judgment he
knew had been entered.”
12 FOLEY V. BITER
But it is apparent from the record that once Foley learned
his petition had been denied, he made reasonable efforts to
determine whether relief was available and how to seek such
relief. On March 4, 2010, shortly after learning that the
district court had denied his petition, Foley sent a letter to the
court, inquiring why he was not notified that the district court
denied his petition. In response, the district court ordered the
clerk to send a copy of the letter to Greenberg and serve a
copy of the order on Foley. On August 2, 2010, Foley again
wrote to the court, explaining that Greenberg still had not
been in contact with him, and asked the court to order
Greenberg to show that he notified Foley of the denial or
explain why he did not, and to send Foley copies of all of the
documents associated with his case.2 The district court
entered an order on January 28, 2011, directing Greenberg to
respond to Foley’s letter within thirty days. Greenberg then
filed his declaration on February 25, 2011. Foley wrote to the
court again on July 10, 2011, stating that he had been unable
to find new counsel to assist him and asking the court to
“allow [him] back into the courts to continue [his] appeal.”
The court construed this as a Rule 60(b)(6) motion for relief
from judgment.
It was not until the last four months before he filed his
motion for relief that Foley was on notice that Greenberg had
been mistakenly ignoring his communications and that
Greenberg would acknowledge that he never notified Foley
2
Greenberg explained that the only documents in his file were “the
original petition, an extension request to file the traverse, and the
traverse.” It is not clear from the record whether Foley ever received
these documents, but even if Greenberg ultimately forwarded them to
Foley, it appears this is the sum total of the “file” Foley would have had
to work with, to prepare an appeal concerning events that transpired more
than a decade earlier.
FOLEY V. BITER 13
that the district court denied his petition. The delay between
Greenberg’s declaration and Foley’s motion for relief is
reasonable given Foley’s lack of resources and legal training,
and his attempt to find new counsel during that time. To the
extent the district court relied on lack of diligence or failure
to file within a reasonable time to deny Foley’s motion for
relief, this was an abuse of discretion.
CONCLUSION
For the reasons discussed, we REVERSE the district
court’s order denying Foley’s motion for relief from
judgment and REMAND for further proceedings consistent
with this opinion.