Washington v. Ryan, 789 F.3d 1041

Background

Theodore Washington, an Arizona death-row inmate, filed a federal habeas petition; the district court denied relief and entered judgment on June 8, 2005. The 30-day appellate clock under Fed. R. App. P. 4(a)(1)(A) expired July 8, 2005.
Washington’s counsel filed a notice of appeal one day late (July 11) and simultaneously filed a motion for a certificate of appealability (COA).
The district court later denied a Rule 60(b) motion to vacate/re-enter judgment nunc pro tunc to June 9, 2005 (to render the appeal timely); Washington appealed that denial and the untimeliness question.
The Ninth Circuit concluded it lacked jurisdiction to hear the underlying habeas-appeal because the notice of appeal was filed one day late and the COA motion could not be construed as a Rule 4(a)(5) extension request.
The court affirmed denial of the Rule 60(b) motion: Rule 60(b)(1) cannot be used to extend the time to appeal where Rule 4(a) supplies the exclusive remedy; Rule 60(b)(6) relief requires extraordinary circumstances (attorney abandonment), which the district court found was not shown here.

Issues

Issue	Washington's Argument	Ryan's Argument	Held
Whether the late notice of appeal deprives the court of jurisdiction	One-day-late filing should be excused; COA motion filed promptly and should be treated as extension under Rule 4(a)(5)	Rule 4(a) time limit is jurisdictional; untimely notice deprives court of jurisdiction	Court dismissed habeas appeal for lack of jurisdiction; COA motion cannot be construed as a Rule 4(a)(5) extension
Whether a motion for COA can be treated as a Rule 4(a)(5) motion for extension of time	COA motion was filed within 30 days and should be fairly read as a request for late appeal	Precedent bars construing untimely notices/motions as extension requests; COA did not mention timeliness	Court held COA cannot be treated as a Rule 4(a)(5) extension motion
Whether Rule 60(b)(1) (excusable neglect/mistake) can be used to cure an untimely appeal	The deadline miscalculation by counsel supports relief under Rule 60(b)(1) to re-enter judgment nunc pro tunc	Rule 4(a) provides the exclusive mechanism to extend appellate time; allowing Rule 60(b)(1) would subvert Rule 4(a)(5) limits	Court held Rule 60(b)(1) cannot be used to extend the time to appeal; denial of 60(b) affirmed
Whether Rule 60(b)(6) extraordinary-circumstances relief is available for counsel error	Counsel’s miscalculation/neglect constitutes extraordinary circumstances warranting relief	Only attorney abandonment or similarly egregious conduct qualifies; mere negligence does not	Court affirmed denial: facts showed negligence, not abandonment, so 60(b)(6) relief unavailable

Key Cases Cited

Bowles v. Russell, 551 U.S. 205 (Sup. Ct. 2007) (statutory appellate deadlines are jurisdictional)
Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010) (granting new penalty-phase trial to co-defendant on sentencing claims)
Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012) (Rule 60(b)(6) can provide relief where attorney abandonment occurred)
In re Stein, 197 F.3d 421 (9th Cir. 1999) (Rule 60(b) cannot be used to evade Rule 4(a) when Rule 4(a)/77(d) address the problem)
Maples v. Thomas, 565 U.S. 266 (Sup. Ct. 2012) (attorney abandonment can excuse procedural default)
Martinez v. Ryan, 566 U.S. 1 (Sup. Ct. 2012) (ineffective-assistance-of-trial-counsel claims at initial-review state collateral proceedings)
Stein v. (In re Stein) is already listed — see above; included here for Rule 60(b) doctrine
Gonzalez v. Crosby, 545 U.S. 524 (Sup. Ct. 2005) (distinguishing habeas claims from Rule 60(b) relief)
Towery v. Ryan, 673 F.3d 933 (9th Cir. 2012) (attorney negligence binds habeas petitioner absent abandonment)
Lawrence v. Florida, 549 U.S. 327 (Sup. Ct. 2007) (attorney miscalculation is generally not sufficient for equitable tolling)