Andrade v Cate

Filing 24

ORDER signed by Judge Kimberly J. Mueller on 9/24/2013 GRANTING 22 Motion for Relief from Judgment; VACATING 20 Order Adopting Findings and Recommendations; DECLINING TO ADOPT 19 Findings and Recommendations; DIRECTING the clerk of Court to assign a new magistrate judge to this case; REFERRING this case to the new magistrate jugde for further proceedings. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADRIAN FRANK ANDRADE,

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Civ. No. S-09-2270 KJM TJB

Plaintiff,
v.

ORDER

MATTHEW CATE,
Defendant.

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Adrian Frank Andrade has filed a motion for relief from judgment, FED. R. CIV. P.

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60(b)(6), alleging that the lawyers who represented him in connection with his petition for a writ

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of habeas corpus abandoned him.

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I. BACKGROUND

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On August 17, 2009, Attorneys Kenny Giffard and Donald Masuda from the Law

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Office of Donald Masuda filed a petition for a writ of habeas corpus on petitioner’s behalf,

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challenging petitioner’s Sacramento County Superior Court convictions for murder and robbery.

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The petition raised five grounds: (1) the trial court erred in admitting statements the decedent

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made shortly before he was killed because the statements did not qualify under the state of mind

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exception to the hearsay rule and were not relevant; (2) the trial court’s refusal to allow petitioner

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to present an expert witness deprived petitioner of his right to present a meritorious defense;

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(3) the trial court erred in refusing to grant a continuance to permit petitioner to interview the
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jurors on the question of potential juror misconduct; (4) the prosecutor engaged in misconduct

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during closing argument; and (5) the evidence was insufficient to sustain the convictions because

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the accomplice’s testimony was not sufficiently corroborated. ECF No. 1.

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On April 23, 2010, respondent filed an answer, addressing the first four claims in
the petition. ECF No. 11.

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On July 6, 2010, Giffard and Masuda filed a reply, arguing that the court had erred

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in admitting the victim’s hearsay statements under the state-of-mind exception to the hearsay rule;

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the prosecutor had committed misconduct because he argued as though these statements had been

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admitted for their truth; the trial court violated petitioner’s right to present a defense when it

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excluded his expert witness and when it denied his request for a continuance to enable him to

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explore potential juror misconduct. Counsel did not address the petition’s attack on evidentiary

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sufficiency.

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On March 8, 2011, the magistrate judge filed findings and recommendations,

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addressing the petition’s first four issues and recommending that the petition be denied. ECF

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No. 19. Counsel did not file objections to these findings and recommendations.

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On January 12, 2012, this court adopted the findings and recommendations in full
and denied the petition; judgment was entered on that day. ECF Nos. 20, 21.

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Petitioner filed the instant motion on August 13, 2013. ECF No. 22. He alleges

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his parents retained Masuda to represent petitioner in these habeas proceedings and Masuda

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promised to inform petitioner of all progress on the writ and respond to petitioner’s inquiries.

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Nevertheless, neither Masuda nor Giffard sent petitioner copies of the documents filed in this

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case1 or notified him when the petition was denied. ECF No. 22 at 1-2. Even though he sent

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thirteen letters to Masuda, ECF No. 15 at 13 ¶ 7 & 44-48 (mail log), he received only one real

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response: on September 15, 2011, petitioner received Masuda’s letter saying they were waiting

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for a response from this court. Id. at 14 ¶ 9.

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/////

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It appears that petitioner signed the petition. ECF No. 1 at 16. He avers that Masuda
sent him only the single page to sign. ECF No. 15 at 13 ¶ 6.
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Petitioner avers that in May 2013 he asked his mother to ascertain from Masuda

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what was happening with the petition because Masuda never responded to petitioner’s letters. Id.

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at 15 ¶ 13.

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Petitioner wrote to the court on June 10, 2013, asking for the status of his writ

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petition; he received a copy of the docket seven days later, showing that the writ had been denied

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and judgment entered. Id. at 15 ¶¶ 14.

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Petitioner’s mother wrote to Masuda on June 26, 2013, asking about the petition.

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In response, Masuda sent petitioner a copy of the court’s order denying the petition, the

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magistrate judge’s findings and recommendations, and copies of the briefs filed in the direct

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appeal in state court Masuda had pursued before filing the instant petition. Id. at 16 ¶ 17.
Since June 17, 2013, petitioner has undertaken research and assembled documents

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to support this motion. Id. at 16 ¶ 18.

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II. ANALYSIS

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Rule 60(b) provides: “On motion and just terms, the court may relieve a party . . .

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from a final judgment . . . for . . . (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence . . .; (3) fraud . . . misrepresentation, or misconduct . . .; (4) the

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judgment is void; (5) the judgment has been satisfied, released or discharged . . .; or (6) any other

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reason that justifies relief.” A Rule 60(b) motion “must be made within a reasonable time.” FED.

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R. CIV. P. 60(c)(1).

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Under Rule 60(b)(6) a party may seek relief from a judgment or order for “any

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other reason that justifies relief.” Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004). This

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section should be applied sparingly, to prevent “manifest injustice,” United States v. Washington,

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98 F.3d 1159, 1163 (9th Cir. 1996), and should be used “‘only where extraordinary circumstances

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prevent a party from taking timely action to prevent or correct an erroneous judgment.’”

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Latshaw v. Trainer Wortham & Co, Inc., 452 F.3d 1097, 1101 (9th Cir. 2006) (quoting United

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States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005), overruled on other grounds by United

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States v. Washington, 593 F.3d 970 (9th Cir. 2010) (en banc)). In addition, the court may

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sua sponte reconsider a final order under Rule 60(b) and correct its own mistakes. Kingvision
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Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 351-52 (9th Cir. 1999); Colmar v. Jackson

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Band of Miwuk Indians, No. CIV S-09-0742 DAD, 2011 WL 2456628, at *2 (E.D. Cal. Jun. 15,

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2011).

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In Mackey v. Hoffman, the Ninth Circuit held that “when a federal habeas

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petitioner has been inexcusably and grossly neglected by his counsel in a manner amounting to

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attorney abandonment in every meaningful sense that has jeopardized the petitioner’s appellate

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rights, a district court may grant relief pursuant to Rule 60(b)(6).” 682 F.3d 1247, 1253 (9th Cir.

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2012). Petitioner has presented evidence that Masuda and Giffard effectively abandoned him

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after filing the traverse in this case: they did not object to the magistrate judge’s findings and

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recommendations, seek a certificate of appealability, file a notice of appeal, or even notify

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petitioner that the petition had been denied. This is a sufficient basis for relief under Rule

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60(b)(6).

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In addition, although the petition contained five grounds for relief, respondent did

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not address it nor did counsel raise it again in the traverse. Neither the magistrate judge nor this

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court considered the claim. This omission also justifies relief under Rule 60(b)(6).

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IT IS THEREFORE ORDERED that:

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1. The order issued January 18, 2012 (ECF No. 20) is vacated.

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2. The court declines to adopt the findings and recommendations issued March 8,

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2011 (ECF No. 19).
3. The Clerk of Court is directed to assign a new magistrate judge to this case in

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light of the termination of Judge Bommer’s recall status. The case is referred to the new

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magistrate judge for further proceedings.

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DATED: September 24, 2013.

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UNITED STATES DISTRICT JUDGE
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