Robert Charles Towery v Charles Ryan
2012 U.S. App. LEXIS 3929
| 9th Cir. | 2012Background
- Towery was convicted of first-degree murder and sentenced to death in 1992.
- He pursued direct appeal and state postconviction relief before filing a federal habeas petition.
- Counsel filed an amended federal petition with eight substantive claims but omitted Towery’s exhausted Eddings-Tennard claim.
- The district court denied the petition; this court affirmed in Towery II (2010).
- Towery then moved for relief from judgment under Rule 60(b)(6), asserting counsel abandonment as an equitable basis to raise the Eddings-Tennard claim.
- The district court denied the Rule 60(b)(6) motion; Towery appealed seeking relief and a stay of execution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether abandonment by counsel can excuse the bar on second/successive petitions | Towery argues abandonment warrants an equitable exception. | Arizona and district court reject abandonment as a basis to bypass AEDPA’s bar. | Abandonment need not be accepted; court assumes but finds no abandonment here. |
| Whether Towery was abandoned by counsel under governing agency principles | Maynard’s alleged breach severed the attorney-client relationship. | Maynard did not abandon Towery; he pursued eight substantive claims and an innocence theory. | Towery was not abandoned; agency relation remained intact. |
| Whether the alleged absence of counsel raises extraordinary circumstances under Rule 60(b)(6) | Abandonment constitutes extraordinary circumstances warranting relief. | No extraordinary circumstances are shown; negligence alone does not suffice. | No extraordinary circumstances; district court did not err. |
| Whether the Eddings-Tennard claim is reviewable under AEDPA standards | The claim is exhausted and should be considered on the merits. | AEDPA requires deference to state court decision; the claim is not meritorious under §2254(d). | Not contrary to or an unreasonable application of clearly established federal law; denied on merits under AEDPA. |
Key Cases Cited
- Holland v. Florida, 130 S. Ct. 2549 (Supreme Court 2010) (egregious attorney misconduct can create extraordinary tolling circumstances)
- Maples v. Thomas, 132 S. Ct. 912 (Supreme Court 2012) (abandonment can constitute cause when attorney leaves 'without notice')
- Gonzalez v. Crosby, 545 U.S. 524 (Supreme Court 2005) (Rule 60(b) relief cannot be used to bypass AEDPA’s second-or-successive bar)
- Eddings v. Oklahoma, 455 U.S. 104 (Supreme Court 1982) (mitigating evidence requires fair consideration without a mandatory nexus to the crime)
- Tennard v. Dretke, 542 U.S. 274 (Supreme Court 2004) (nexus requirement for mitigating evidence is not absolute)
- Penry v. Lynaugh, 492 U.S. 302 (Supreme Court 1989) (mitigating evidence must be weighed to reflect a reasoned moral response)
- Coleman v. Thompson, 501 U.S. 722 (Supreme Court 1991) (attorney errors generally do not excuse petitioner's default; agency principle)
- Murray v. Carrier, 477 U.S. 478 (Supreme Court 1986) (attorney error risk borne by petitioner; agency relationship)
- Williams v. Taylor, 529 U.S. 362 (Supreme Court 2000) (state courts may weigh mitigation evidence when determining leniency)
- United States v. Barker, 423 F.3d 1085 (9th Cir. 2005) (analyzed when multiple state decisions address a claim for AEDPA review)