Washington, et al v. Ryan, et al

Filing 167

ORDER, the Court finds that Baich's conduct did not amount to abandonment, re: 05-99009 . Signed by Senior Judge James A Teilborg on 11/25/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Theodore Washington,
Petitioner,

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Charles L. Ryan,

DEATH PENALTY CASE

v.

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No. CV-95-2460-PHX-JAT

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ORDER
Respondent.

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This matter is before the Court on limited remand from the Court of Appeals for

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the Ninth Circuit to determine whether former federal habeas counsel, Assistant Federal

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Public Defender Dale Baich, effectively abandoned Petitioner by filing an untimely

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notice of appeal (“NOA”). The Court concludes that, although Baich acted negligently,

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his conduct did not amount to abandonment.

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I.

BACKGROUND

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In 1987, a jury convicted Petitioner of first-degree murder, and the trial court

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subsequently sentenced him to death. Details of the crime are set forth in the Arizona

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Supreme Court’s opinion upholding the conviction and sentence. State v. Robinson, 796

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P.2d 853, 856–58 (Ariz. 1990).

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Petitioner initiated these habeas proceedings in late 1995, and the Court appointed

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John Trebon, Esq., as counsel. At Trebon’s request, the Court appointed the Federal

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Public Defender (“FPD”) as co-counsel. Assistant FPD Baich entered his notice of

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appearance on November 1, 1996, and subsequently “assumed primary responsibility” for

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representing Petitioner. (Docs. 11, 162-1.) In May 1997, Petitioner filed an amended

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 20.) Following

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further amendment and other proceedings, the Court ultimately denied relief in April

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2005. (Doc. 115.) On May 5, 2005, Petitioner filed a motion to alter judgment (Doc.

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177), which the Court denied on June 8, 2005 (Doc. 118). Thirty-three days later, on July

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11, 2005, Petitioner filed a NOA and a motion for a certificate of appealability (“COA”).

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(Docs. 120, 121.) The Court subsequently granted a COA with respect to certain claims.

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(Doc. 122.)

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On October 7, 2005, the Ninth Circuit ordered Petitioner to show cause why his

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appeal should not be dismissed as untimely pursuant to Rule 4 of the Federal Rules of

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Appellate Procedure. Until the Ninth Circuit’s order, Baich was unaware that the NOA

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had not been timely filed. (Doc. 162-1). One week later, Baich filed a motion pursuant

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to Federal Rule of Civil Procedure 60(b)(1) to vacate and reenter judgment based on

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“excusable neglect” (Doc. 124), and obtained a stay from the Ninth Circuit pending this

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Court’s ruling on the motion. In a declaration appended to the motion, Baich’s legal

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secretary explained that she had miscalculated the deadline for filing the NOA by

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beginning the 30-day count from the day after the Court issued its final order (June 9,

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2005) rather than from the day the order issued. (Doc. 124-2 at 2.) Because July 9 fell

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on a Saturday, she calendared the NOA due date as Monday, July 11, 2005. (Id.) On

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February 24, 2006, the Court denied post-judgment relief, concluding that Rule 60(b)

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could not be used to cure an untimely NOA. (Doc. 130.)

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Thereafter, Petitioner filed a response to the Ninth Circuit’s order to show cause

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and a notice of appeal from this Court’s denial of the Rule 60(b) motion to vacate. (Doc.

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131.) In July 2006, the Ninth Circuit struck the parties’ briefs, vacated this Court’s order

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denying Rule 60(b) relief, and remanded for substitution of counsel and consideration of

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a properly-filed Rule 60(b) motion. (Doc. 133.) In October 2006, Petitioner, now

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represented by Gilbert Levy, Esq., filed a new motion to vacate judgment based on Rule

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60(b)(1) and (b)(6). (Doc. 139.) In a declaration appended to the motion, Assistant FPD

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Baich stated that he had instructed his assistant to calendar the due date for the NOA in

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Petitioner’s case, that he was counsel of record in thirteen other capital habeas cases at

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the time, and that he also served as the supervisor for the FPD’s capital habeas unit.

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(Doc. 139-1 at 3.) He further stated that he believed Petitioner’s request for a COA had

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to be filed simultaneously with the NOA, that the COA application was a substantive

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pleading that he finished drafting on July 7, 2005, that he spent the next four days editing

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the COA application for filing on the July 11 calendared due date, and that he could have

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completed the COA application in time had he known or had reason to believe that the

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NOA due date was actually July 8. (Id. at 3–5.)

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In March 2007, this Court again denied Rule 60(b) relief, and Petitioner filed

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another notice of appeal. (Docs. 146, 147.) More than six years later, on September 26,

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2013, the Ninth Circuit remanded “for the limited purpose of determining whether

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Washington was effectively abandoned by his attorney” and directed this Court to hold

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an evidentiary hearing and make findings within sixty days. (Doc. 158.)

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At a scheduling conference held October 2, 2013, the Court agreed to consider

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supplemental briefs, existing records, and oral argument in lieu of conducting an

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evidentiary hearing. (Doc. 161.) The parties thereafter filed supplemental briefs on the

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issue of abandonment.

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Petitioner’s memorandum, Assistant FPD Baich stated that he did not independently

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check the NOA due date calendared by his assistant or take any steps to verify that the

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NOA was timely filed; that between June 8 and July 11, 2005, he logged 260.9 work

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hours, almost 50% of which was on administrative matters; and that he “performed

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substantive tasks in at least seven matters,” including Petitioner’s COA application.

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(Doc. 162-1 at 2–4.) The Court heard argument on November 20, 2013.

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II.

(Docs. 162, 164, 165.)

In a new declaration appended to

DISCUSSION

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Petitioner argues that his attorney abandoned him, and thus extraordinary

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circumstances prevented him from filing a timely NOA. (Doc. 162 at 15). Petitioner

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purports that several facts show abandonment, including that Baich: (1) filed an untimely

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NOA; (2) waited until the last day of the miscalculated deadline to file the NOA; (3) was

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responsible for thirteen other death penalty cases at the time; (4) logged 260.9 hours the

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month prior to filing the NOA; (5) relied on an assistant to calculate the filing deadline;

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and (6) was uncertain whether a COA application needed to be filed concurrently with

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the NOA. (Doc. 162 at 15–16; Doc. 165 at 6.) He further asserts that the Court must

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take into consideration that this is a death penalty case in determining whether Baich’s

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conduct was more than simple negligence. (Doc. 162 at 15.)

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Respondent argues that Baich diligently and competently pursued habeas relief for

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Petitioner and continued this representation until the Court appointed new counsel at the

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order of the Ninth Circuit. (Doc. 164 at 7.) To show Baich’s diligence and competence,

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Respondent points to the pleadings Baich filed, including a motion to conduct discovery,

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a motion to stay proceedings based on the state trial judge’s alleged incapacity, and a

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memorandum on the merits of the claims. (Id. at 6–7.) Additionally, after the Court

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denied the petition, Baich filed a motion to alter the judgment, a NOA (albeit untimely by

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one court day), a COA application, and a Rule 60(b) motion after discovering that the

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NOA was untimely. (Id.) In Respondent’s view, Baich’s conduct amounts only to

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negligence, not abandonment. (Id. at 9.)

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To qualify for Rule 60(b)(6) relief for an untimely NOA, a petitioner must show

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that extraordinary circumstances prevented the petitioner from prosecuting an appeal.

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Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012).

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circumstances will rarely occur in the habeas context.” Gonzalez v. Crosby, 545 U.S.

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524, 535 (2005) (discussing that only truly extraordinary circumstances will cause a court

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to set aside a judgment for “any other reason” under Fed. R. Civ. P. 60(b)(6)).

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Ordinarily, a federal habeas petitioner is “bound by his attorney’s negligence, because the

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attorney and the client have an agency relationship under which the principal is bound by

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the acts of the agent.” Towery v. Ryan, 673 F.3d 933, 941 (9th Cir. 2012). However, an

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attorney’s “virtual abandonment” of a client may constitute an extraordinary

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circumstance because “under agency principles, a client cannot be charged with the acts

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“Such [extraordinary]

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or omissions of an attorney who has abandoned him.” Maples v. Thomas, 132 S. Ct. 912,

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923 (2012).

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Attorney abandonment has been addressed by the Supreme Court and Ninth

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Circuit in several different contexts. In Maples, the Court determined that abandonment

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of a client in state postconviction proceedings may provide cause to excuse the

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procedural default of federal habeas claims. There, two attorneys from a large out-of-

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state law firm represented the petitioner in state postconviction relief proceedings.

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Maples, 132 S. Ct. at 918. During the pendency of the petition, these attorneys accepted

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new positions that precluded them from representing Maples, without informing their

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client or seeking the state court’s permission to withdraw as counsel of record. Id. at 919.

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In addition, no other attorney from the firm entered an appearance or moved to substitute

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as counsel, and Maples believed that he was represented by counsel. After the state court

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denied postconviction relief, the court clerk sent notification to the attorneys’ former

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firm, which returned the mail as undeliverable. Id. at 919–20. As a result, Maples was

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unaware of the denial, and the deadline for filing a notice of appeal expired. Id. at 920.

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Subsequently, a federal court found Maples’ claims to be defaulted because he had failed

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to appeal the state court’s denial of postconviction relief. Id. at 921.

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In finding attorney abandonment as cause to excuse the state procedural default,

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the Court distinguished a claim of attorney error, such as “miscalculating a filing

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deadline,” from a complete abandonment that severs the agency relationship and

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terminates the attorney’s authority to act for the client. Id. at 923. Relying on its

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decision in Holland v. Florida, which involved an untimely habeas petition, the Court

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observed that the petitioner there had not urged counsel’s negligence in missing the filing

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deadline as a basis for equitable tolling of the limitations period, but rather successfully

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argued for tolling based on counsel’s “near-total failure to communicate with petitioner

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or to respond to petitioner’s many inquiries and requests over a period of several years.”

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Id. (quoting Holland v. Florida, 560 U.S. 631, ---, 130 S. Ct. 2549, 2568 (2010) (Alito, J.,

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concurring in part and concurring in judgment)).

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The Court then found similar

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abandonment in Maples’s case, based on counsel’s severance of the agency relationship

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by accepting positions that precluded continued representation of their client, failing to

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observe court rules requiring permission to withdraw, and leaving Maples without the

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right to personal notice of the court’s ruling, given their status as counsel of record.

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at 924–28.

Id.

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Citing Maples, the Ninth Circuit in Mackey v. Hoffman held that a failure to timely

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file a notice of appeal due to attorney abandonment may constitute extraordinary

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circumstances justifying post-judgment relief under Rule 60(b)(6). Mackey, 682 F.3d at

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1253. In that case, an attorney filed a timely habeas petition for the petitioner. However,

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after the respondent filed its response, the attorney did no further work on the case,

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missed a traverse filing deadline, and wrote the petitioner to inform him that the court

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would likely set a trial date and to request payment for services. Id.at 1248. When the

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district court denied the petition, the attorney received notice of the judgment but failed

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to notify the petitioner or file a notice of appeal. Id. at 1248–49. Eight months after the

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denial, the petitioner wrote directly to the court because of concerns that a hearing had

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not been set. Id. at 1249. In response to the court’s inquiries, the attorney indicated that

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he had been retained by the petitioner’s parents but that they had stopped paying him. Id.

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Almost one year after the denial, the court discussed the possibility of vacating judgment

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because the petitioner had been unaware of its ruling through no fault of his own, but

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concluded it lacked authority to use Rule 60(b) as a means to reset the time for appeal.

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Id. at 1250.

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In deciding that the district court had discretion to grant relief under Rule 60(b)(6),

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the Ninth Circuit noted several facts suggesting attorney abandonment, including that the

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petitioner had been misled by his attorney, the petitioner believed his attorney was

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continuing to represent him, and the attorney’s failure to seek permission to withdraw as

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counsel as required by court rule. Id. at 1253. As a result, the attorney deprived the

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petitioner “of the opportunity to proceed pro se and to personally receive docket

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notifications from the court.” Id. On remand, the district court granted Rule 60(b) relief,

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finding abandonment based on the attorney’s failure to keep his client apprised of the

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status of the case, failure to inform the petitioner of the judgment denying the petition,

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and failure to seek permission from the court to withdraw as counsel of record. Mackey

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v. Hoffman, No. C-07-4189-SI, 2012 WL 4753512, at *1 (N.D. Cal. Oct. 4, 2012).

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Finally, in Towery v. Ryan, the Ninth Circuit declined to equate an attorney’s

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simple negligence with abandonment. There, the court-appointed federal habeas attorney

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filed a petition that raised eight constitutional claims.

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However, the attorney inexplicably failed to raise a colorable constitutional claim that

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had been exhausted in state court. Id. After the court denied habeas relief, the petitioner

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filed a motion for Rule 60(b)(6) relief on the ground that habeas counsel had abandoned

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him by failing to raise the colorable claim. Id. at 939. In upholding the district court’s

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denial of post-judgment relief, the Ninth Circuit observed that counsel did not refuse to

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represent his client, renounce the attorney-client relationship, cease serving as agent, or

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leave his client without any functioning attorney of record. Rather, counsel “diligently

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pursued habeas relief on Towery’s behalf, although omitting a colorable constitutional

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claim.” Id. at 942. The court concluded that “[a]t most, Towery alleges a claim of

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negligence, which falls far short of a claim of abandonment.” Id. at 946–47.

Towery, 673 F.3d at 938.

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Similar to Towery, the facts alleged here suggest mere negligence, not

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abandonment. Petitioner first contends that Baich’s heavy caseload and administrative

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responsibilities caused him to wait until the last minute to file the NOA. However,

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attorneys regularly must balance time between cases and other tasks. Baich’s hours

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logged and allocation of time do not establish that he failed to diligently pursue

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Petitioner’s NOA.

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assumption that the NOA and COA application had to be filed simultaneously, Baich

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stated that he had completed the COA application several days before the date he

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believed the NOA was due, but waited until the final day to file both documents. (Doc.

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139-1 at 4-5.) Ultimately, the problem was not that Baich was overburdened, but that the

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deadline to file the NOA was miscalculated. Further, while waiting until the final day to

Furthermore, although Baich made an arguably unfounded

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file a NOA is a questionable practice, it is one that is commonly utilized in capital cases.

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See generally Sheppard v. Early, 168 F.3d 689, 693 (4th Cir. 1999) (observing that delay

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in pursuit of direct and collateral review benefits capital defendants by postponing

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imposition of sentence). Regardless of the reason Baich waited until the final day, filing

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on the deadline is not a lack of diligence so egregious that it constitutes virtual

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abandonment of a client. See Moorman v. Schriro, 672 F.3d 644, 647–48 (9th Cir. 2012)

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(holding that the attorney’s failure to gather additional evidence for mitigation claims

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might be “serious negligence” but did not constitute abandonment).

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Petitioner’s arguments that Baich was incompetent are similarly unpersuasive. To

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support this argument Petitioner relies on three facts: (1) Baich delegated the calculation

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of the filing deadline to a nonlaywer; (2) Baich did not check the accuracy of the

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deadline; and (3) Baich presumed that a NOA and COA must be filed concurrently.

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(Doc. 165 at 6). First, the calendaring and calculation of a deadline does not require the

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expertise and knowledge of a lawyer. Because these tasks are administrative, Baich was

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not necessarily negligent for delegating them to a nonlawyer. See Model Rules of Prof’l

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Conduct R. 5.3 cmt. 1. In addition, the delegation actually may have allowed Baich more

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time to focus on the essential legal aspects of the case. See Missouri v. Jenkins, 491 U.S.

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274, 288 n.10 (1989) (delegation of clerical tasks encourages cost-effective delivery of

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legal services). Although Baich did not ensure the accuracy of the date, this suggests

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mere negligence, not inexcusable or gross neglect. Thus, facts one and two, at most,

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show that Baich’s conduct leading to the filing of an untimely NOA was merely

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negligent.

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concurrent filing of the NOA and COA application somehow delayed filing of the NOA.

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Indeed, as already noted, Baich had completed the COA application several days before

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the NOA’s due date. As a result, solely the deadline miscalculation caused the untimely

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NOA.

Fact three is irrelevant because Petitioner has not shown that Baich’s

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The compelling circumstances that led the courts in Maples and Mackey to find

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attorney abandonment simply are not present in this case. In Mackey, not only did the

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attorney fail to communicate with his client, but he also affirmatively misled Mackey and

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stopped working on the case after filing the habeas petition. Despite having no intention

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to continue the representation, the attorney failed to seek permission to withdraw as

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required by court rules. Similarly, in Maples, the attorneys failed to communicate with

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their client and to withdraw as counsel of record. Contrary to the attorneys’ conduct in

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Mackey and Maples but similar to that in Towery, Baich diligently pursued habeas relief.

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He filed several pleadings during the pendency of the petition and filed a motion to alter

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judgment after the court denied the petition. Although untimely by one court day, Baich

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filed a NOA. Also, unlike the attorney in Mackey, who received the denial of the habeas

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petition and failed to take any action, when Baich discovered the untimely NOA, he

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expeditiously filed a Rule 60(b) motion to set aside the judgment. Simply put, Baich’s

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conduct is not comparable to those attorneys who left clients “without any functioning

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attorney of record.”1 Maples, 132 S. Ct. at 927. At no time was the agency relationship

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between Baich and Petitioner severed.

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Moreover, Baich’s miscalculation of a filing deadline is precisely the type of error

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that Holland and Maples distinguished from abandonment.

Indeed, in Lawrence v.

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Florida, 549 U.S. 336–37 (2007), a capital case in which the petitioner missed the filing

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deadline for his habeas petition, the Court held that “[a]ttorney miscalculation is simply

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not sufficient to warrant equitable tolling, particularly in the postconviction context

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where prisoners have no constitutional right to counsel.” See also Rivas v. Fischer, 687

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F.3d 514, 539 (2d Cir. 2012) (finding failure to file timely state postconviction motion to

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be a “garden variety case of neglect” and not basis for equitable tolling of habeas

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limitations period); Chavez v. Florida Dept. of Corrections, 647 F.3d 1057, 1071 (11th

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Although not addressed by either party, the Court notes that Petitioner was
also represented by John Trebon, but that Trebon appears not to have had much
involvement in the case once the FPD was appointed as co-counsel. Trebon’s
representation was terminated simultaneously with that of the FPD in 2006. (Doc. 134.)
Assuming without deciding that Trebon effectively abandoned Petitioner, such
abandonment provides no basis for relief because Petitioner was not also abandoned by
Baich, who from the outset of his appointment vigorously pursued habeas relief on
Petitioner’s behalf. Thus, the instant case is distinguishable from Maples, where there
was complete abandonment by all of the petitioner’s attorneys.
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Cir. 2011) (finding filing delay by capital postconviction attorney to be “garden variety

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negligence” and insufficient to equitably toll habeas limitations period). If a deadline

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miscalculation is insufficient to provide extraordinary circumstances for tolling of the

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AEDPA limitations period, thus precluding all federal habeas review (even in a capital

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case), this Court can discern no basis for distinguishing miscalculation of a NOA

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deadline, precluding only appellate review. To find other otherwise would eviscerate the

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Federal Rules of Appellate Procedure any time an attorney missed a deadline. See, e.g.,

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Lawrence, 549 U.S. at 336 (observing that equitable tolling based solely on attorney

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miscalculation of limitations period would provide equitable tolling “for every person

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whose attorney missed a deadline”); United States v. Locke, 471 U.S. 84, 101 (1985)

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(observing that permitting 1-day late filings would lead to cascade of exceptions that

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would “engulf the rule erected by the filing deadline”).

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miscalculation of a NOA deadline is insufficient to show egregious misconduct that

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constitutes abandonment. Thus, Petitioner has demonstrated only simple negligence, not

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the complete abandonment and severance of agency relationship that is required under

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Maples and Mackey.

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III.

As a result, an attorney’s

CONCLUSION
Petitioner relies on Baich’s isolated error in filing an untimely notice of appeal to

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establish abandonment.

Although Petitioner attempts to convert this error into

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abandonment by alleging that Baich’s lack of competence and diligence amounted to

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egregious misconduct, the facts do not support such a conclusion. Accordingly, the Court

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finds that Baich’s conduct did not amount to abandonment.
IT IS SO ORDERED.

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//

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IT IS FURTHER ORDERED that the Clerk of Court transmit a copy of this

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Order to the Ninth Circuit Court of Appeals forthwith.

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Dated this 25th day of November, 2013.

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