Andrew Mackey v. Thomas Hoffman, et al

Filing

FILED OPINION (ARTHUR L. ALARCON, BARRY G. SILVERMAN and MARVIN J. GARBIS) REVERSED AND REMANDED. Judge: MJG Authoring. FILED AND ENTERED JUDGMENT. [8225823]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW MACKEY,
Petitioner-Appellant,
v.
THOMAS G. HOFFMAN; DAVID
RUNNELS,
Respondents-Appellees.




No. 11-15115
D.C. No.
3:07-cv-04189-SI
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.

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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 pursuant 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).

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As discussed herein, we hold that a district court may grant
an incarcerated habeas petitioner relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) if his attorney’s abandonment causes him to fail to timely file a notice
of appeal.
I.

BACKGROUND

In 2004, Petitioner Andrew Mackey (“Mackey ”) was convicted of attempted murder and other crimes in the San Francisco 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 postconviction 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 receiving 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 Francisco. 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.

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Please write your parents and ask them to pay something on the legal bill.
Thanks.
No hearing was ever scheduled and Grim did nothing further. 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 judgment, 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 postconviction proceedings, and that Mackey’s parents had only
partially paid Grim for those services. Grim said that he prepared and filed Mackey’s § 2254 petition pro bono, and that
in September 2007, he “fully informed” Mackey and his family 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.
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.
2

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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 district court that he informed Mackey when his petition was
denied and admitted that after filing an amended § 2254 petition within a week of filing the original petition, he “did nothing 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

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Mackey’s parents, who then stopped paying him and apparently abandoned their son’s legal defense. Grim concludes:
The failure of his parents to help him was not petitioner’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. Fairness suggests the Court should vacate to order [sic]
dismissing the petition and reinstate the habeas corpus 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 deadline 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 constitutional 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

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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 Procedure 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 construing 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 judgment 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 opportunity 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 pursuant to Rule 60(b)(6).4
[1] Rule 60(b) of the Federal Rules of Civil Procedure provides that a district court may relieve a party from a final judg3

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.

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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 Klapprott v. United States, 335 U.S. 601 (1949), stating, “[i]n simple 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 Klapprott 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 existence of extraordinary circumstances which prevented or rendered 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 “extraordinary 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 “deliber5

“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).

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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 relationship that underlies our general policy of attributing to the client 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 Federal 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.

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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 authorize 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 Procedure 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).

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In Maples v. Thomas, 565 U.S. ___, 132 S. Ct. 912 (2012),
an inmate failed to timely appeal the denial of his state postconviction 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 notified 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 deadline, 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 92021. 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 effectively 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

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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 intention 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 principal 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).

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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 attorney abandonment and not by a failure to receive Rule 77(d)
notice.
Mackey contends that he has demonstrated that extraordinary 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 Klapprott, 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 exercise 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.