Andrew MacKey v. Thomas Hoffman
682 F.3d 1247
| 9th Cir. | 2012Background
- Mackey was convicted in 2004 and sentenced to life with parole eligibility plus 25 years to life.
- Grim represented Mackey in state and federal post-conviction proceedings, including the 2254 petition filed August 2007.
- Grim failed to file a traverse or timely notice of appeal after the district court denied the petition in July 2009.
- Grim advised Mackey and his family inconsistently; he never notified Mackey of the judgment or arranged an appeal, and claimed abandonment by Mackey’s parents.
- Mackey later learned of the denial through docket materials and letters; he argued he was deprived of notice due to counsel’s abandonment.
- The district court considered vacating the judgment under Rule 60(b)(6) but ultimately deemed it unavailable under In re Stein; the court did not extend Rule 4(a)(6) time limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b)(6) relief can be granted for attorney abandonment | Mackey argues abandonment deprived him of notice, justifying 60(b)(6) relief. | Grim argues no relief due to procedural rules and lack of timely notice under 4(a)(6). | Yes; district court may grant 60(b)(6) relief for attorney abandonment causing late appeal. |
| Whether the district court erred by applying In re Stein to deny relief | Stein is distinguishable; here the issue is attorney abandonment, not lack of notice under Rule 77(d). | Stein bars 60(b)(6) relief when Rule 4/77 framework leaves no gap for relief. | Remanded to assess abandonment and exercise discretion to grant relief if appropriate. |
| Whether Maples v. Thomas supports relief for attorney abandonment in this habeas context | Maples shows abandonment by counsel can be extraordinary and justify relief. | Maples applies to state-to-federal procedural default; not directly controlling here. | Maples informs, but remand to determine if abandonment warrants 60(b)(6) relief. |
Key Cases Cited
- Klaprott v. United States, 335 U.S. 601 (Supreme Court 1949) (establishes the broad scope of Rule 60(b)(6))
- Ackermann v. United States, 340 U.S. 193 (Supreme Court 1950) (limits 60(b)(6) relief for non-extraordinary excuses)
- Martella v. Marine Cooks & Stewards Union, 448 F.2d 729 (9th Cir. 1971) (requires extraordinary circumstances to justify 60(b)(6) relief)
- Community Dental Servs. v. Tani, 282 F.3d 1164 (9th Cir. 2002) (gross attorney negligence can justify 60(b)(6) relief)
- Lal v. California, 610 F.3d 518 (9th Cir. 2010) (extends 60(b)(6) relief for attorney negligence in prosecution)
- Maples v. Thomas, 132 S. Ct. 923 (Supreme Court 2012) (abandonment by counsel constitutes extraordinary circumstance)
- In re Stein, 197 F.3d 421 (9th Cir. 1999) (Rule 4(a)(6) and 60(b) interaction restricts relief)
- Bowles v. Russell, 551 U.S. 205 (Supreme Court 2007) (Rule 4(a)(6) time limits are jurisdictional)