Louis Perez v. William Stephens, Director

HAYNES, Circuit Judges.

HAYNES, Judge: Circuit juryA capital convicted Louis Perez of killings ex-girlfriend, murder for the of his roommate, her and the roommate’s nine- year-old daughter, and he was sentenced (therefore leaving in reentered of Criminal The Texas Court to death.1 (“CCA”) judg- original conviction March place affirmed his Appeals (No. ment), and subse- on direct and DISMISS and sentence 13-70002) of ha- petition jurisdiction. for writ for want of quently denied complaint seek- filed corpus. Perez beas Background I. corpus in the federal of habeas

ing a writ exhausting after his state- district court judgment de- The district court entered pursuant to 28 U.S.C. court remedies for writ of habeas nying application (which Antiterrorism part is of the on March 2012. corpus and a COA “AED- Penalty Death Act or and Effective to file notice of Accordingly, the deadline PA”). a Re- magistrate judge issued R.App. April 2012. See Fed. denying Perez’s port and Recommendation 4(a)(1)(A). attorney, Sadaf P. Perez’s claims, which the district court habeas Khan, the order the received notice of court then The district adopted full. entered, but, day judgment was after same request for a certificate denied Perez’s research, affirmatively decided conducting (“COA”).2 appealability notify appeal. Khan did not file consulting attorney, Richard below, Perez or the fully allegedly discussed As more Burr, judgment timely in time to file Perez, attorney de- consulting without nor did she consult with a notice of timely appeal. Upon not to file a cided appeal. to file an them about whether motion, the district court vacated and words, Perez’s Khan never obtained judgment pursuant to Feder- reentered its Burr to waive an 60(b)(6), agreement thereby al Rule of Civil Procedure after the deadline learned of the within allowing appeal- Perez to file he in- timely appeal passed, had thirty days judgment, of the reentered file an formed Khan that she needed to designated In- a case Case which he did. Accordingly, appeal as a matter of course. 13-70006, the Director of the Texas No. 25, 2012, reopen Khan moved to on June Department of Criminal Justice’s Correc- (“Director”) appeal pursuant the time to file a notice of ap- Institutions Division tional Appellate Procedure to Federal Rule of grant court’s pealed from the district 4(a)(6). The court denied the mo- district judg- motion to vacate and reenter Perez’s tion, finding that Khan received notice of subsequently ment filed a “Motion to judgment when it was entered and Appeal for Want of Jurisdiction” Dismiss May court, adding that she missed the with this which we ordered carried 4(a)(5) Rule 13-70002, Appellate deadline to file an with the case. Case No. R.App. P. motion to extend. See appealed judgment, the reentered Perez 4(a)(5). requesting grounds. on a number of COA motion, who subse- the Director’s VA- Perez secured new counsel

We GRANT 4(a)(5) 60(b)(6)3 Rule quently Appellate Rule order and filed CATE Civil Accordingly, magistrate underlying we refer to the 1.The facts the conviction are not disposi- judge’s report that of the district court. helpful understanding appeal’s as this complete A recitation of the facts is tion. confusion, magistrate judge's Report in the available 3. To avoid we will use the term _” Quarterman, specific "Appellate Recommendation. See to refer to a Perez LY, No. A-09-CA-081 2011 WL Federal Rule of Procedure and Rule_” (W.D.Tex. specific Federal LEXIS 149275 Dec. "Civil to refer to a 2011 U.S. Dist. 29, 2011). Rule of Civil Procedure. 4(a)(6) motions, 60(b)(6) as a ing well motion under Civil Rule judg- reenter a 60(b)(6), arguing Civil Rule that Perez solely ment permit order to such an missed the deadline Khan because aban- appeal to timely?4 become If the answer him. On doned December to the question “yes,” then we must finding district that Khan had examine under what circumstances the dis- court— abandoned Perez —entered trict court do could so.5 If the answer is granting the Civil Rule motion. It “no,” then the district court lacked the then directed the clerk to reenter power to did, do what it and we must March so Perez could vacate the order. The answer to ques- timely appeal. The court noted that requires tion consideration some histo- otherwise would have granted Ap- ry. Prior to we allowed the use of pellate Rule January motion. On Civil Rule to circumvent Appellate appealed the district 4(a) in cases where clerk failed to court’s judgment; reentered the Director send the required notice to parties the that timely appealed also the district court’s a had been entered. See Smith 60(b)(6) grant of Civil Rule relief. Die, Inc., v. Jackson Tool & 426 F.2d 5 (5th Cir.1970). Smith, In we stated that 60(b)(6) Applicability II. of Rule Civil while a “[We] district court’s review[] fully [w]e that aware various cases grant deny decision to relief under [Civ have held that a motion to vacate cannot 60(b) Rule il] for abuse of discretion.” granted be purpose for the sole of ex- Servs., Inc., Reg’l Flowers v. S. Physician tending the time for nor can it be “ 798, (5th Cir.2002). 286 F.3d 800 ‘A dis invoked as a for appeal.... substitute trict court abuses its discretion if it bases must recognize [W]e also that where the its decision on an erroneous view of the adhering net result of to the letter of the or on clearly law a erroneous assessment procedure ” rules of is to thwart rather of the evidence.’ Hesling v. Transp., CSX promote than to justice, the Court must Inc., (5th Cir.2005) 396 F.3d 638 wary rigid of their application. Utils., (quoting Kennedy v. Tex. 179 F.3d (5th Cir.1999)). 265 Id. at 7-8. 1991, however, question 4(a) The first before Appellate us is a Rule one, simple though specifically the answer is less so. was amended to allow the dis- Does the district court power have the trict re-open court to the time when allow an otherwise untimely appeal by moving party us- the not receive does notice 4. The days district court ruled the alternative after the district court's Civil Rule granted Appellate it would have Thus, that the 60(b)(6) Rule 4(a)(6) Appellate order. Rule 4(a)(6) motion, despite its earlier conclusion does not aid Perez here. apply this rule that did not because Khan argue received notice. Perez does not "no,” question 5. Because we answer this we 4(a)(6) Appellate provide that Rule would parame- have no occasion to address what the appeal timely. alternate basis to find his This "attorney ters of abandonment” are. We attorney's rule does not cover an decisions note, however, that Khan’s decision not to untimely appeal. lead to an See Resendiz make, was, appeal, while not hers to accord- Dretke, (5th Cir.2006). 452 F.3d 356 Even her, ing to based research and her conclu- Appellate if Rule were an available sion that an appeal such would not be "via- one, source of relief in a such case as this strategy ble” and would detract from her of suggested by dissenting opinion, permits it pursuing an "actual innocence” claim. only fourteen-day reopening of the time for twenty-eight This filed 214-15). § After 77(d), for WRIGHT provides Miller which & Rule Civil under changes of statutory and rule judgments. of notice give parties clerks R.App. 4(a)(6). year, however, longer contained That same no our decisions P. the statuto- provides which such “hints.”7 U.S.C. even appeals, was civil frame for time ry in the of time Instead, allow extensions decided Dunn we

amended encompassed Cir.2002). (5th as those circumstances Cockrell, same F.3d 491 4(a)(6). 4(a)(5) and Rules by Appellate Dunn, a district court’s affirmed we Civil Rule petitioner’s denial of habeas amendments, we held Following these 60(b)(1) orig seeking to vacate motion longer avail- Rule that Civil timely ap that he could to Smith. so analogous inal that are able in cases 60(b) Jones, cannot be F.2d 37-39 holding “[R]ule peal, Matter of Cir.1992) of a avail (5th (affirming the denial limited relief used to circumvent Appellate to vacate motion Rule of under Federal Civil able there was no where advances 4(a)(5), reinstate which Procedure failed to appellants finality judg notice because protecting principle omitted). requirements (citation meet the Id. at 492-93 ments.” Hosps. v. Std. 4(a)(6)); see also Vencor par Dunn makes language used Co., F.3d Accident Ins. & pur the sole ticularly clear where Life Cir.2002) (same); (11th St. Zimmer 60(b) motion is “to of a Civil Rule pose Co., Louis, 32 F.3d 357 Zimmer Inc. v. time in which of the achieve an extension Cir.1994) (same). (8th to we Prior it must fail.” appeal, a notice of to file (with- that hinted some cases decided had O’Neil, F.2d 709 F.3d at also 302 see that a conceivable holding) that was out (“[Wjhere ... Rule [Civil] at 373 using would allow could exist that situation 60(b) that the order only ... motion asks 60(b) time for to Rule extend Civil the [Civil] vacated reentered.... governed in not even situations appeal 60(b) avowedly being used motion is Rule O’Neil, 709 States v. See United Smith. It time for only to extend the Cir.1983) (5th (stating “[e]x- F.2d [Appellate] squarely hence collides cases, extraordinary Rule truly in cept 4(a)(5).”).8 Rule 60(b) used to extend relief should not be Dunn, the Su Following our decision implicitly and thus appeal,” time for Russell, held in Bowles preme Court “truly might be such suggesting there 205, 214, 127 168 L.Ed.2d S.Ct. U.S. case”);6 see also In re Air extraordinary (2007), filing of a “timely notice that the Airport, 852 Crash at Worth Dall./Fort Cir.1988) jurisdictional (5th case is a appeal 11 of a civil (citing F.2d Bank, N.A., Fargo 987 F.2d "ap- Latham v. Wells holding that the actual 6. O’Neil's R.App. O’Neil, Cir.1993) (5th mandatory (citing periods P. 4 are 1203 n. 7 in peal 60(b) 373). Rule can- jurisdictional ... [Civil] 709 F.2d at procedures.... circumvent its be used to particularly [Civil] so where ... is This Civil 8.Although Dunn addressed Rule 60(b) for made after time motion is Rule 60(b)(1), reasoning was not limited sub- its only expired asks appeal [and] has ... (where purpose” part "sole 1. 302 F.3d at (cita- vacated reentered.” order be underlying judg- attack motion is not to omitted). at 373. 709 F.2d tions extend the time ment but rather to fail”). ap- reasoning equally must “it The passing in a post-1991 case 7. One mentioned fn.8, subpart 6. See also plicable to infra. recognized that this have "[w]e footnote extraordinary truly cases.” yield in rule explained The requirement.” penalty Court table rules in death cases to avoid otherwise power equitable courts lacked to carve out harsh results occasioned im- 4(a) proper attorney exceptions Appellate Maples Rule because conduct. — Thomas, U.S.-, appeal jurisdictional the deadlines to (2012), 181 L.Ed.2d 807 statutory requirements under 28 U.S.C. Court held that abandonment unequivocally

§ 2107. Id. Bowles states extraordinary constitutes an circumstance timely filing that “the of a notice of that can be sufficient “cause” to relieve a jurisdictional require in a civil case is a federal petitioner habeas from the conse- ment. Because authori this Court has no quences procedural of a default in state ty equitable juris exceptions create There, court. during the state post-con- requirements, ‘unique dictional use of the phase, viction pro defendant’s bono illegitimate.” circumstances’ doctrine is attorneys left their employment at their 214, 127 Id. at S.Ct. 2360. law firm and representation discontinued Bowles, strong language while of the defendant informing without either referring specifically to Civil Rule the defendant or the court. Id. at 919. 60(b), not permit appellate does courts to No other at the firm respon- took exceptions appel create to circumvent the sibility for any way, the case in and local late deadlines as set forth in Appellate counsel did not act upon receiving a copy 4(a) § particularly This is of the dismissal. Id. at 919-20. As a true because “carries result, the time to file an in the § 208, 127 2107 into practice.” Id. at expired. state court Id. at 920. The dis- 2107(a), § 2360. According to 28 U.S.C. trict court procedural determined that the party days must within 30 precluded error federal habeas consider- entry judgment, and district courts have ation, and the Eleventh Circuit affirmed. authority grant limited an extension. reversed, Id. The distin- exceptions The limited stated 2107 guishing attorney abandonment, which sat- in present Appellate however, are Rule requirement, isfies “cause” from attor- there is no “extraordinary circumstances” ney negligence, which does not. Id. at fact, or similar In exception. 28 U.S.C. — 922-23; see Ryan, also Martinez v. § 2107 has been amended twice since the U.S.-, 1309, 132 S.Ct. 182 L.Ed.2d 272 Supreme Court decided Bowles. Neither (2012) (creating an equitable rule to avoid amendment attempts exception to add an procedural default in certain defined sit- “extraordinary” “unique” or circum by uations caused ineffective assistance of stances, suggesting Congress does not proceedings). counsel state any exceptions, intend for other than the Supreme The Court cases Perez and the codified, already ones to be parties used dissenting opinion cite do involve ex- to compliance avoid strict with appellate ceptions statutory appellate limits on Therefore, deadlines. using Civil Rule jurisdiction; they equitable excep- address 60(b)(6) to circumvent the exceptions codi tions judge-created procedural bars § fied in 28 U.S.C. 2107 runs afoul of non-jurisdictional statutes. See Holland language Bowles’s clear that courts cannot Florida, 631, 2549, v. exceptions jurisdictional create require (2010) 177 L.Ed.2d 130 (concluding that ments that statutorily based. 551 AEDPA juris- statute limitations is not 212-14, 127 U.S. S.Ct. 2360. and, therefore, concluding dictional dissenting Perez and the opinion point equitable tolling of the AEDPA limitations Supreme equi- recent Court cases using period permissible the circum- 180 because, abandonment). a notice of filing time for While

stance Bowles, timely filing require would read Bowles under dissenting opinion jurisdictional)9; Appellate mandatory where Rule ment limited to cases as language Express is not so govern, its Mut. Fire Ins. Co. v. would Cumberland (3d limited, Inc., on the reasoning Prod., its rests Fed.Appx. 252 jurisdictional (“It Cir.2013) of these statutory nature (unpublished) is well estab limits under 2107. proper not a lished that Rule 60 is [Civil] to file an extending vehicle for the time assuming importantly, even More untimely by rendered appeal that has been that the cur we were convinced arguendo thirty-day time win expiration (or not) should con would rent Court 4(a).” by [Appellate] Rule provided dow Bowles, we are not free to tinue to follow Bowles, 206-07, 127 (citing 551 U.S. at See Ballew v. Cont’l disregard Bowles. Scutt, 2360)); Fed.Appx. v. Hall Cir.2012). (5th Airlines, 668 F.3d Cir.2012) (6th (unpublished) 990-91 stare decisis court and are “We are a strict (Bowles), (same); In re Sealed Case challenge statutory position in no (D.C.Cir.2010) (same);10 F.3d 486-87 construction utilized Jones, Fed.Appx. also see White Supreme Court has sole Court.... The (11th Cir.2011) (unpublished) 295-96 authority to overrule own deci its (While on refusing to make a decision (citations quo ....” and internal sions Id. whether Civil Rule could ever be omitted). words, tation we marks 4(a), to circumvent Rule used leaves;” do not “read tea we follow the law likely the court stated dicta that Bowles is, respecting Court’s deprived means that the court would deciding continuing singular role jurisdiction petitioner if the failed to com precedents. viability of its own Dunn, statutory (citing ply with a deadline accord, are in with one Other circuits 492)). 302 F.3d See, exception. e.g., City- Lacour v. Tulsa Jail, exception is the Ninth Circuit. Fed.Appx. Cnty. 618-19 (9th (10th Cir.2013) Hoffman, (unpublished) (holding Mackey 682 F.3d 60(b) Cir.2012), motions cannot toll the it concluded that Civil Civil Rule (E.D.Mich. 2012) (deny- Contrary dissenting opinion’s sugges- May (unpublished) to the tion, petitioner that "a ing petitioner’s Lacour does not hold Civil Rule motion 60(b) rely to extend the [Civil] seeking to file a notice of Instead, filing appeal.” an it held time for petitioner’s pro- where counsel for the habeas Lacour, challenging that who was the sub- ceedings failed to file the notice of judgment, just seeking stance of the rein- despite being petitioner aware that the want- timetable, appellate could not statement of his because, appeal ed to the denial under challenge underlying judgment appeal Bowles, 4(a)’s Appellate Rule time limits are timely because he did not file a Civil Rule 59 "mandatory jurisdictional,” and therefore Instead, Fed.Appx. motion. 517 at 619. 60(b) escape Civil Rule cannot be used timely only as to the Civil Rule 4(a)’s requirements re-open Appellate Rule 60(b) motion’s denial. The court held that States, appeal); Joyner the time v. United for did not abuse the district court its discretion *2, 3:06-00016, No. 2011 WL at 60(b) denying Civil Rule relief. (D.S.C. 2011 U.S. Dist. LEXIS at *6-7 17, 2011) (unpublished) (denying peti- June persuasive reasoning 10. We also note the because, 60(b)(6) tioner’s Civil motion Rule factually two similar district court cases from Bowles, Presesnik, equi- create under the court outside our circuit. Garrett No. 2:09-CV-11076, *4, exceptions jurisdictional require- table 2012 WL ments). 2012 U.S. Dist. LEXIS at *9-11 60(b)(6) could used to vacate and reen- VACATE the order granting be Civil Rule attorney abandonment ter relief and reentering judg- where was found. The Ninth Circuit asserted ment.12 That leaves the March 2012 judg- that its decision does not run afoul of ment as the “live” as to which “Mackey receiving Bowles because is not is, admittedly, Perez’s untimely. 4(a)(6).” Rule pursuant [Appellate] result, As a we GRANT the Director’s However, Id. 1253. the Ninth Circuit 13-70002, motion to dismiss ap- Perez’s per- did not address the fact that Bowles peal, jurisdiction. for want of exceptions no equitable mitted and used Civil Rule order VACATED mandatory, unequivocal language when re- (Case 13-70006); No. Perez’s DIS- ferring statutory grant to the ap- of civil (Case 13-70002). MISSED No. jurisdiction. pellate Nor does it address 4(a)(5) the fact that Rule exists DENNIS, L. Judge, JAMES Circuit encompasses neglect” “excusable and dissenting. cause,” “good consistently I respectfully dissent. separate “extraordinary while a exception stances” would be inconsistent Ordinarily, “the attorney prison- is the §with 2107.11 agent, er’s princi- and under “well-settled ples agency law,’ principal bears the case, solely using this Perez is a Civil of negligent part risk conduct on the of his 60(b) motion as a means of achieving — Thomas, U.S.-, agent.” Maples v. untimely an appeal. He does not claim he (2012). 181 L.Ed.2d 807 was denied a “full and fair hearing before However, Court has ex- the district court nor [does he] seek[ ] plained markedly that “[a] different situa- ruling to have the district court alter presented[ attorney tion is ... ] when Dunn, (cita- ruling.” its F.3d at notice, omitted). abandons his client without tion quotation and internal marks (em- thereby occasions the default.” Id. We conclude under Court and added). phasis “Having precedents prin- our severed the the district court cipal-agent relationship, power lacked the to circumvent the rules acts, act, timely appeals longer for in the manner it or fails to as the did. client’s Accordingly, representative.” Rather, we conclude that we must Id. at 922-23. (client Alternatively, say one could R. Prof’l Conduct R. 1.02 Disciplinary "abandonment,” occurred, if such would con- general objectives controls and methods of “good stitute cause” for the failure to representation); See also Tex. R. Disciplinary file such that this circumstance is encom- (requiring Prof’l Conduct R.1.03 communica- passed by Appellate exception client). explanations tion with and to a “good contrary arguments cause.” Perez’s consideration of our duties under Canon run afoul of Dunn. 3(B)(5) of the Code of Conduct for United Judges recognizing States that we do not ruling way implies 12. Our in no it would regarding attorneys' have all the facts proper lawyer for a to fail to advise a client conduct, we raised this issue with both sides’ ap of an adverse and the attorneys argument. supplemen- at oral In a Titlow, -, peal. Burt v. - U.S. Cf. following argument, tal brief oral Perez's new 10, (2013) (holding S.Ct. L.Ed.2d 348 attorneys explained prior attorney’s that the declining that the Court’s decision to set aside appears conduct to have been a "one-time finding lawyer state that was not attributable medical occurrence to her condi- lawyer did not ineffective exonerate the from they "may the fact tion” concluded that that he well have violated the such referral to conduct”). professional disciplinary rules of The decision appropriate. authorities was not to waive an is for the client. See Tex. its ly, court did not abuse litigant that a the district dictates sense “[c]ommon when, considering Khan’s seri- discretion constructively responsible held cannot be duty of ethical and abandon- ous breach not who is the conduct of precise at the moment when ment of Perez any meaningful in agent operating his repre- her counsel and crucially he needed (quoting at 923 of that word.” Id. sense sentation, from it determined that relief Florida, 560 U.S. 130 S.Ct. Holland v. warranted and reentered judgment was (2010) (Alito, 2549, 2568, 177 L.Ed.2d 130 habeas relief judgment denying Perez “[ujnder Therefore, J., concurring)). him, by aided coun- permit in order to new cannot be principles, a client agency sel, Hold- timely appeal. to file a notice of of an the acts or omissions charged with gross responsible for Khan’s ing Nor has him. attorney who abandoned miscarriage of duty is a manifest breach of failing to act on a client be faulted for can compelled by any prece- not justice that is reason to when he lacks his behalf own or this court dent of the fact, record, attorneys in are believe his erroneously split. creates a circuit him.” Id. at 924. representing Mackey Hoffman, 682 F.3d See states, majority opinion the dis- As the (9th Cir.2012). 1252-53 and further trict court denied Perez relief Russell, Nor does Bowles v. 551 U.S. appealability him a certificate of denied (2007), 205, 127 168 L.Ed.2d 96 S.Ct. (“COA”). point, began At that time Bowles, granting Perez relief. bar in Perez to move for a COA this elapse for periods held that the time Supreme Court essence, majority, concludes court. The Rule of contained Federal timely in a that Perez failed to do so 4(a)(6) ju- “mandatory Procedure manner, precluding further review his at 127 S.Ct. risdictional.” 551 U.S. say But to conviction and sentence. the district permits 2360. Rule act in a manner is to Perez failed to if reopen court to the time to file an attorney, point. a crucial Perez’s elide moving party demonstrates that he did (“Khan”), timely received no- Khan Sadaf judgment not receive notice of the denying tice the district court’s decision Rule of Pro- appealed under Federal Civil silently, autonomously, Perez relief but she RApp. 4(a)(6). 77(d). P. Per- cedure independently chose to take no further ez, however, pursuant seeks relief to Fed- informing case. Without action Procedure eral Rule of Civil Perez, conferring anyone, including Khan aban- problem cure the caused when deliberately she let the time to move for a contrast, By point doned him. at no expire. egregiously Khan breached COA petitioner allege Bowles did the he duty her to Perez as his aban- was entitled to relief because he had been him doning causing him without notice and Moreover, attorney. abandoned to lose his argued that he Perez has abandonment, Attorney failed to receive notice of the indicated, to consti- 77(d), Court has is sufficient presents under Rule so Bowles “extraordinary circumstances” today’s tute not dictate unfortu- bar and does necessary from trigger Mackey, nate outcome. 682 F.3d Cf. Rule of Civil Procedure under Federal

60(b)(6). (2012); id. at Hol- BACKGROUND land, see also Gonzalez 27, 2012, the district court Crosby, On March (2005). denying Perez habeas According- entered 162 L.Ed.2d 480 Thereafter, a denying relief and further Perez COA. Burr instructed Khan that she needed to a appeal; file notice of Accordingly, the deadline to file a after notice R.App. all, said, he the decision whether to appeal appeal April 2012. See Fed. was not hers to make. Accordingly, on 4(a)(1)(A). P. According to Khan’s affida- 25, 2012, June Khan moved to reopen the vit, she received notice of the district time to file a notice of See Fed. day order court’s the same that the district R.App. 4(a)(6).3 The district court de- P. determined, court denied Perez relief but motion, nied the finding that Khan had apparently without consulting Richard received notice judgment of the when it (“Burr”), Burr consulting attorney,1 or was entered and that she had missed the client, her would not be 4(a)(5) May 2012 deadline to file a Rule words, successful.2 Khan knew of R.App. motion to extend. See P. ruling, the district unilaterally court’s 4(a)(5).4 chose to do nothing, intentionally and and Khan withdrew as counsel and Perez silently request allowed Perez’s a secured new counsel subsequently who COA expire failing to file a notice of 4(a)(5) filed motions, and fact, appeal by April 2012. between well as a motion for relief judgment from March when the district court ren- pursuant to Federal Rule of Civil Proce- decision, dered its and June Khan 60(b)(6), dure arguing that Perez missed did not talk to Burr or Perez all. The the deadline because Khan had abandoned attorneys spoke two only after Burr 18, 2012, him. On December the district learned of the district court’s March order finding that Khan had abandoned court — and called Khan. On June Khan Perez —entered granting sent Perez a informing letter him that she motion and directed the clerk had not an appeal filed on his be- reenter the March 27 so that half. timely appeal. could The not- consulting attorney, As the Burr Consequently, assisted PACER notifications. he did Perez, representing Khan in with Khan ask- not receive judg- notice of the district court's ing case-specific questions Burr from time to However, had, ment. even if he because he providing time and Burr his counsel in re- record, possessed was not counsel of he no sponse. Burr consulted on Perez’s case as authority to act on Perez's behalf part of his work with the Texas Habeas Assis- ("the Training Project tance and TX HAT Pro- permits 3. That rule the district court to "re- ject”). Project composed TX HAT open period the time to file for a experienced attorneys, each of whom main- days after the date when its order to re- private practice directly tains a repre- (1) open only is entered” if “the court finds capital petitioners sents federal habeas from moving party that the did not receive notice Additionally, attorneys Texas. these consult 77(d) under Federal Rule of Civil Procedure appointed represent with counsel Texas order,” (2) entry of the capital petitioners, log habeas between 400 days "the motion is filed within 180 after the per year and 1000 capacity, hours in this judgment or order is entered or within 14 up consult on given to 150 cases at time. days moving party after the receives notice this, explained Because of Burr that he was ..., earlier," (3) whichever is "the court meaningfully every able to consult on party prejudiced.” finds that would be case—and that he could not force counsel to every consult him on case—and he that would instead focus on the subset of cases in which permits 4. That rule the district court “ex- actively sought counsel his advice. tend the time to file notice of ... if[ ] party days so moves no later than 30 after 2. Burr was not the counsel of record in the 4(a) prescribed by expires.” the time this Rule sign up case so he could not to receive “extraordinary donment granted would have that it otherwise

ed stances”). attorneys, Maples’s pro bono reopen motion to Perez’s Rule postconviction proceed- state January during the file his On time to at their law ings, employment left their the district timely appealed representation their re- firm and discontinued denying habeas court’s fresh informing either petitioner without that a should determining COA lief and 916-17, at petitioner or the court. Id. appealed the The state cross not issue. firm “en- attorney at the motion to 919. No grant of Perez’s district court’s behalf, Maples’[s] an on day appearance the next tered reenter vacate and counsel, or otherwise moved to substitute in this court to dismiss later moved and any change [the court jurisdiction. notified the for want of appeal at 919. representation.” Id. defendant’s] DISCUSSION court denied May the state at 917. Maples’s application. habeas Id. I. posted of the court’s order were “Notice 60(b)(6) Procedure Federal Rule of Civil attorneys at the address of the New York party court to relieve a permits district they firm which had been the law ... “any final reason from a However, post- Id. “[t]hose associated.” 60(b)(6). justifies relief.” Fed.R.Civ.P. returned, ings unopened, were to the trial explained that Supreme Court has The clerk, further attempted court who no justify only “extraordinary circumstances” attorney of record mailing.” Id. “With no Gonzalez, at relief. behalf, the time acting Maples’[s] in fact Accordingly, we must de- 125 S.Ct. 2641. Maples ran out.” subse- Id. (1) attorney termine whether abandonment quently application, filed a federal habeas petitioner’s in a failure to results that the but the district determined file an constitutes “extraor- ruling the trial court’s failure to dinary justify circumstances” sufficient to proceeding precluded fed- the state habeas (2) relief under Rule whether review, eral and the Eleventh Cir- habeas Khan in fact abandoned Perez. Su- Court, agreed. cuit See id. The the Ninth have preme Court and Circuit reversed, however, distinguishing between question the first in the affirma- answered prison- of a “[n]egligence part mere on the tive, unquestion- and the facts of this case attorney[, does postconviction which] er’s ” ably that Khan abandoned Perez indicate qualify principal- as ‘cause’ due to he her most. See Ma- when needed agent relationship prisoner between a Holland, 927; ples, 132 at S.Ct. abandonment, attorney, which 2564; Mackey, S.Ct. at 682 F.3d at 1252- Contrasting at 922. the former does. Id. latter, explained: with the the Court markedly pre- A different situation A. attorney ... aban- when ] sentedf Thomas, notice, dons his client without Maples Having thereby held that abandonment occasions the default. relationship, principal-agent constitutes sufficient “cause” to relieve a severed the acts, longer or fails petitioner, Maples, habeas from the bar to act, representative. His by procedural review caused de- as the client’s federal therefore “cannot fair- fault in state court. 132 see acts or omissions ly client].” aban- be attributed to (describing Maples’s [the also id. (second origi- Id. at 922-23 alteration in was at odds with Maples’[s] strongest nal) added) (citation omitted) (emphasis argument i.e., that attorneys his had — Thompson, (quoting him, Coleman abandoned therefore he had cause 111 S.Ct. 115 L.Ed.2d 640 to be relieved from the default. Yet (1991)); Holland, see also 130 S.Ct. at [the did not cede Maples’[s] firm] repre- (concluding attorney abandon- sentation to a attorney, new who could ment “extraordinary constitute an Maples’[s] have made abandonment ar- circumstance” justifying equitable tolling gument plain to the Appeals. Court of 2244(d)); Instead, under 28 U.S.C. at id. the firm represented Maples (“Common (Alito, J., concurring) sense through briefing and oral argument in litigant dictates that a cannot Circuit, be held con- the Eleventh they where at- structively responsible the tempted conduct of to responsibility cast for the an operating mishap who is not on the his clerk of the Alabama trial in agent any meaningful of court. sense

word”). Thus, Maples the Court held Id. at Accordingly, 925 n. 8. the Court concluded that “[t]here was indeed agency

under principles, a client cannot Maples’[s] cause to excuse procedural de- charged with the acts or omissions of fault.” Id. at 927. an attorney who has abandoned him. own, Through no fault of Maples his Nor can a client be failing faulted for lacked any the assistance of authorized act on his own behalf when he lacks attorney during 42 days the Alabama record, attorneys reason to believe his of noticing allows for an appeal from a trial fact, representing are not him. court’s denial of postconviction relief. observed, just As he had no reason to that, suspect in reality, he had been Ultimately, the Court concluded that reduced to pro se status. Maples was Maples had shown that attorneys had by extraordinary disarmed abandoned him. See id. at 924-27. Ma- quite beyond stances his control. He ples’s putative representatives had left cause, hold, has ample shown we to ex- jobs their firm the and had done so cuse procedural default into which notifying Maples without and without with- trapped he was when counsel of record drawing as counsel of required record as abandoned him without a word of warn- by the relevant local rules. Id. at 924. ing. attorneys And because the continued to be Id. record, listed as counsel of Maples was not

entitled to any receive notice of order. Id. The Ninth applied Maples’s Circuit has Moreover, at 925.5 the Court underscored reasoning grant from grave presented conflict of interest by under a situation material- attorneys from the firm attempting same ly indistinguishable from the present case. represent Maples following proce- Mackey, F.3d at 1252-53. dural default: Mackey, after the district court had denied default,

Following the the firm’s petitioner’s interest application habeas on the avoiding merits, damage reputation to its own Mackey’s attorney neither notified (“[Ujpon entry 5. See Ala. copy R.Crim.P. 34.5 appropriate thereof mail or means.”); ("[W]here proceeding order a criminal made in Ala. R.Crim. P. 34.4 motion, shall, response counsel, to a ... represented by the clerk defendant is service delay, record.”). parties upon without undue furnish all shall be made Id. as counsel of record. despite sion to withdraw him filed a notice nor at 1253. petition- inaccurately informed having Id. at notify a trial date. the court awaiting was Grim failed to

er that he Because withdraw, Mackey file the time to intention to Consequently, of his 1248-49.6 pro- opportunity district deprived and the lapsed, had receive pro personally ceed se and motion to a Rule court denied As notifications from the court. docket vacate, that it lacked discre- determining result, Mackey, indigent prisoner at 1250. tion to do so. Id. attorney that his was who ... believed Maples, the Supreme Like Court him, wholly represent was continuing to negli- distinguished between Mackey court that the district court had de- unaware Id. at 1253. gence and abandonment. petition. nied his 2254 that the Ninth Circuit explained The court (citation omitted). However, because Id. gross negligence held that previously had that “if it the district court had stated abandonment amounting to constructive possessed the discretion to vacate extraordinary could constitute in order to allow reenter the 60(b)(6). at 1251 under Rule Id. stances opportunity the to petitioner [it] Tani, (citing Cmty. Dental Servs. court, so,” having Mackey do the would Cir.2002)). (9th “Re- F.3d 1169-71 possessed concluded that the district court case,” Mackey the lief in such a discretion, the case to the such remanded justified gross negli- because explained, “is determine, as a factual district court to attorney, ‘neglect gence by an defined matter, attorney had in Mackey’s whether inexcusable,’ it is gross ‘vitiat[es] so that (internal him. Id. at 1254 fact abandoned relationship that underlies our agency the omitted).7 quotation marks attributing of to the client general policy sum, has said the ” (alteration attorney.’ the acts of his Id. attorney constitutes the that abandonment Tani, 282 F.3d at original) (quoting extraordinary that kind of circumstance 1171). Thus, held that the Ninth Circuit justifies judgment. See Ma- relief from petitioner a federal habeas has been “when Holland, ples, 132 S.Ct. neglected by his inexcusably grossly (Alito, J., 2552, 2562-63; id. at 2568 amounting attorney counsel in a manner concurring). Applying Maples, the Ninth every meaningful sense abandonment Circuit, nearly faced with facts identical petitioner’s appel- the jeopardized that has case, held that attor- present those of the rights, may grant a district court relief late ney abandonment constitutes the kind of 60(b)(6).” at 1253. pursuant to Rule Id. extraordinary necessary circumstances trigger judgment pursuant relief from attorneys Maples, As with 60(b)(6). light persuasive at- Rule of this Mackey’s concluded that Ninth Circuit authority, materially indistin- the relevant based on torney had failed to observe circumstances, permis- guishable together him requiring local rules to seek 4(a)(6). Consequently, Evidently, Mackey’s attorney declined—or Id. the court conclud- Mackey take further action because "[gjranting refused—to that relief to is not ed paid. id. at he had not been by "Mackey,” barred Bowles v. Russell.” Id. seeking pur- explained, "[was] the court explained granting 7. The court that it was problem to cure a suant to Rule attorney under Rule relief for abandonment by attorney caused abandonment than for failure to receive no- rather 77(d) failure to receive Rule notice.” Id. tice Rule of Procedure under Maples, clear mandate in client-lawyer Court’s Doubt about whether a re- correctly lationship the district court concluded that still exists should be clarified lawyer, preferably seek relief from in writing, so the client grounds mistakenly his abandoned will not sup- pose lawyer him without notice and caused him to is looking lose after client’s affairs when lawyer has

ceased to do so. For if example, lawyer judicial has handled a or adminis- B. trative proceeding produced a re- sult adverse to the client but has not notify Khan’s unilateral decision not to been specifically instructed concerning Burr or Perez of judg- the district court’s pursuit an appeal, the lawyer should pursue ment and not to an appeal there- advise the client the possibility from an egregious breach of the duties appeal before relinquishing responsibili- owes her client and thus con- ty for the matter. abandonment, stitutes negligence mere for which Perez ordinarily would be re- Tex. Disa R. PROF. Conduct 1.02 cmt. 6 sponsible. added).9 Khan knew of the district (emphasis This Khan failed to court’s nothing but elected to do Consequently, do. Khan’s omissions effec- that, and inform despite no one the fact tively severed the principal-agent relation- rules, under the relevant ethical the deci- ship. To hold Perez accountable for appeal sion not to was not hers to make. Khan’s unilateral decision not to take an Prop. See, e.g., Tex. Disa R. Conduct 1.02- appeal by contrary would to the particular 1.03.8 commentary Of note is the Court’s directive that the acts and omis- 1.02, to governs scope who, which attorney and sions of an by abandoning objectives representation: client, of her attorney-client has severed the Holland, (describ- 8. See also 130 S.Ct. at 2564 to advise him as- to the matters described ing professional "fundamental canons of re- above.... appeal, If defendant decides to sponsibility, require attorneys per- which to must ensure that written notice work, reasonably competent legal form court.”); appeal to of is filed with the trial Ex clients, Axel, implement communicate with their (Tex.Crim. to parte 757 S.W.2d requests, keep ("[Tjrial counsel, clients' reasonable to their App.1988) ap retained or key developments clients informed of in their pointed, duty, obligation respon has the and cases, client”); and never to abandon a Burr sibility fully to consult with and to advise his ¶ (consulting attorney stating Aff. 19 that "[i]n concerning meaning client effect my years experience post- more than 30 of court, rendered his to proceedings, conviction I have seen exceed- appeal judgment, necessity from that of ingly few instances which habeas counsel giving appeal taking steps notice of copy have failed to forward a of a deadline- pursue appeal, expressing to an as well as client, triggering judgment penalty ato death professional judgment possible grounds as to regarding failed merit, to consult with a client appeal delineating and their appeal, client's desire to and failed to take advantages disadvantages appeal.”); during Denton, action on behalf of a client an (Tex. Brice v. 135 S.W.3d period jurisdictional appel- extended ("[I]n in which App.2004) the absence of a limitation missed”). late deadlines are scope appointed represen on the counsel’s order, appointment tation in the or an order See, State, e.g., granting appointed Jones v. 98 S.W.3d counsel’s motion to with (“[Tjhe draw, (Tex.Crim.App.2003) we must assume that counsel has a continu ing obligation represent ascertain whether the defendant wishes to to a client until the longer solely appointed attorney decision to lies client no desires defendant, matter.”). attorney's duty with the and the is to he, Khan, the motion if not had submitted fairly be attributed ‘“cannot

relationship ” appeal, he reopen the time to file 922- Maples, client].’ to [the likely have been successful. See would (alteration original) (quoting Cole- R.App. 4(a)(6). fact, the district 2546). P. man, that it have specifically noted would whether to the decision only did Not 4(a)(6) motion. Yet granted Perez’s Rule Perez, Khan, not belong to take an time, purporting at the Khan was still unilaterally made this deci- Khan when but representative. Supposedly act as Perez’s him, to a exposed herself she sion for counsel, way Perez had represented interest further under- conflict of serious knowing of the district court’s of the abandonment. scoring the extent and, fact, specifically prohibited McNeil, 520 F.3d Downs v. relevant receiving from notice under the (11th Cir.2008) (“[U]nder ten- fundamental Tex. Local R. 83.3 court rules. See S.D. law, principal is agency ets of (“All an action will communications about actions or knowl- charged agent’s with an attorney-in-charge to the who is be sent acting adversely edge agent when the notifying associate coun responsible for interests.”); see also Ma- principal’s (“Notices sel.”); S.D. Tex. Local R. 83.4 discovering at 925 n. 8. On ples, 132 S.Ct. file.”). only to the address on will be sent error, Khan of her should the seriousness either the Even if he had learned about represen- immediately ceded Perez’s have unilateral judgment or Khan’s decision who could have made tation to new counsel pursue an those same rules she had strongest argument —that attempting him from would have barred possible. him—as soon abandoned Cf., e.g., appeal pro file a notice of se. moved, unsuccessfully, Khan instead That Polidore, 690 F.3d United States file a notice of reopen the time to (5th Cir.2012) (refusing 721 n. 19 to consid Why conflict. would an underscores this pro motion because he er defendant’s se attorney argue that she had abandoned represented by (citing counsel was 5th CiR. expose to do so would her to Perez when (“Unless specifically R. directed 28.6. conse- significant professional and ethical order, motions, briefs or cor pro se explains why it quences? perhaps This party if the is respondence will be filed attorneys stepped months before new counsel.”))). represented by only in Perez to assert his represent explained Maples, As the in “a pre- for relief—that his argument and best charged client cannot be with the acts or attorney had abandoned him. The vious attorney omissions of an who has aban Khan professional exposed risk to which doned him. Nor can a client be faulted for with her client failing herself on to consult failing to act on his own behalf when he abandoning him underscore thereby attorneys lacks reason to believe his relationship the extent to which the be- record, fact, him.” representing are not Khan and Perez had been severed. tween 132 S.Ct. at see also Hutchinson circumstances, Perez cannot Under these (11th Florida, 677 F.3d 1108-09 Cir. responsible held for either the untimeli- 2012) (“A (Barkett, J., concurring) reason of his or the months of dither- ness have no cause to file prisoner able would ing permitted before Khan withdrew and pleadings simple his own for the reason attorneys represent unconflicted Perez. lawyer’s job that it is assumed that is his so.”). irony stemming During There further from of Khan’s period to do inaction, abandonment of her client. Perez deliberate silence and she was not Khan’s Perez, yet Perez had judgment, representing did not receive notice of the so being exceptions reason to believe that he was not uitable to that jurisdic- rule’s requirements. tional Although Khan did not move Id. at represented. S.Ct. contrast, 2360. By there was no attorneys Maples, assertion away as did her thereof) (or attorney abandonment in Bowles nor is functionality lack if was as she express analog there an 4Rule to Rule Accordingly, had. Khan abandoned Perez 60(b)(6)’s equitable allowance for relief un- charged such that he not be der extraordinary circumstances. See failing timely ap Khan’s omissions in 60(b)(6); Crosby, Fed.R.Civ.P. 545 U.S. at peal. Maples, 132 Therefore, 125 S.Ct. 2641. Bowles is II. distinguishable. Court, Second,

No case from the this Cockrell, both Dunn v. 302 F.3d circuit, (5th other court disturbs the Cir.2002), and United States O’Neill, (5th conclusion that abandonment con- v. 709 F.2d 372-73 Cir. 1983), of “extraordinary stitutes kind involved negligence, not at- 60(b)(6), torney instance, stance” per- envisioned abandonment. For mitting reentry petitioner in Dunn timely appeal and a new failed to First, Russell, appeal. attorneys’ as a result of his negligence. Bowles v. 302 F.3d at 492. district court denied on Because the time had Sep- habeas relief 9, 2003, expired for him to receive Federal Rule tember and Bowles failed to file of Appellate Procedure extension thirty days. his notice of within on neglect, attempt- based excusable Dunn Instead, 127 S.Ct. 2360. 60(b)(1), ed to invoke Rule which author- moved, pur- on December Bowles izes a district court to reopen 4(a)(6), reopen period suant to Rule on the exact same basis—excusable ne- during which he could file his notice of words, glect. sought he to use permits Id. That rule a district precise to circumvent the court to extend the time to file a notice of relief afforded Federal Rule of appeal to days day fourteen from the 4(a)(5), Procedure and so we concluded grants which the district court a motion to the Rule motion “squarely however, reopen; the rule is conditioned 4(a)(5)” with Rule collide[d] and therefore on a that showing moving party the did (internal “must fail.” Id. at 493 quotation not receive notice under Federal Rule of omitted). marks The Dunn court said R.App. 77(d). Civil Procedure P. nothing extraordinary the about Bowles, 4(a)(6)(A); 207, 551 U.S. at 127 stances created when an aban- Furthermore, although S.Ct. 2360. the dons her client. motion, granted district court the it “inex- plicably gave days[ Bowles 17 ... ] file O’Neill, government And the federal Bowles, appeal.” his notice of 551 U.S. at failed to file a notice of 207, added). 127 (emphasis S.Ct. 2360 In granting summary judg- several orders words, the district court exceeded ment to gov- the defendants because the plain scope the of the allowance in Federal ernment believed those orders not were Appellate Rule of finally, Thus, Procedure 4. And final. See 709 F.2d at 365.10 it was 4(a)(6)’s the express Court ruled that Rule in this context that the court affirmed the provision creating eq- barred courts from district court’s denial of a Rule against govern- 10. Certain counterclaims the trict court had severed them. Id. outstanding, although ment remained the dis- 190 that indicating unpublished, as the Several are mistake

motion, asserted which default, precedential to be because not meant they were government’s the cause of they that were “squarely underscoring collide[d]” and further the requested Procedure that comes the fuller treatment given with Federal only Lacour, to extend “being used cases. See published most with at Yet the Id. appeal.” for 617; the time Mut. Fed.Appx. at Cumberland 517 fully aware had been government Prods., Inc., 529 Express v. Fire Ins. Co. but sought it which orders from (3d Cir.2013) (unpub 246 Fed.Appx. of an ele- timely because do so failed to Scutt, lished); Fed.Appx. 482 v. Hall because, misunderstanding, mentary Cir.2012) (6th cu- (per (unpublished) 990 by compe- represented thinking they were All White, at 293. riam); Fed.Appx. 408 counsel, wholly unaware of they were tent attorney negligence, see but one involve specifically The O’Neill rulings. the allega Hall, Fed.Appx. at 482 failing to for government admonished received, judgment was never tion that the mis- respect to this seek clarification 247; Cumberland, Fed.Appx. at 529 see ample opportunity despite understanding Case, Garrett re Sealed F.3d Perez, by at 374-75. See id. to do so. Presesnik, 2:09-CV-11076, 2012 WL No. attorney, by his comparison, abandoned (E.D.Mich. 2012), May at *1 a sought such clarification. have could not precise are circumstances both of which concluded, Rather, Maples as the 4 is Appellate Procedure Federal Rule of an “ex- constitutes attorney abandonment exception designed to address.12 distinguishing traordinary circumstance” majority White, by the only case cited govern- from- that of the position allegation of involved an at 927.11 See 132 S.Ct. ment in O’Neill. White, abandonment, Fed.Appx. see various out-of-circuit finally, the And (Wilson, J., yet case is dissenting), majority relies precedents which White, petitioner inapposite too. unavailing in the distinguishable execution, panel which sought stay to the One runs counter Maples. face of he principally had majority because denied conclusion, noting peti majority’s diligence. requisite act with the failed to 60(b) to extend may rely on Rule tioner (majority opinion). Al 294-95 See id. at appeal in extraordi filing for the time noted a “serious though White court v. Tulsa Lacour nary See circumstances. 60(b) regarding whether a question” Jail, Fed.Appx. City-Cnty. filing motion be used to restart Cir.2013) (10th Several (unpublished). specifically period a notice of decision Court’s predate basis, ruling to decide on this declined Jones, 408 Fed. Maples. White there was no merit White’s instead that Cir.2011) (11th (unpub Appx. at 295- claims. See id. underlying (Bowles), 624 lished); In Case re Sealed 96. (D.C.Cir.2010); 482, Joyner v. F.3d sum, no case from the 3:06-0016, States, No. WL United Cr. 2011). circuit, (D.S.C. 17, Court, pro- this or court 2437531, *1 June different, Thus, Joyner slightly but nevertheless 12. consistent the rule O’Neil is Joyner al- distinguishable. petitioner in The Maples because the O’Neil announced leged mailed notice he had his that 60(b) acknowledged that Rule that the court the district court but truly extraordinary "in be afforded could it. See 2011 WL had never received 709 F.2d at 373 cases.” at *1 credibility vides that abandonment does not as a witness rather than his extraordinary the kind of cir- testify. constitute not to 60(b)(6), cumstances envisioned B. reentry

permitting and a peti- new therefrom when a habeas precisely This is the situation that the tioner is abandoned. Khan Because aban- Supreme Court confronted in Doyle v. Perez, doned the district court did not Ohio, discretion, abuse its and we consider (1976). L.Ed.2d 91 Doyle The defendants application, merits of Perez’s COA a they testified that had been framed. Id. at question to which I now turn. 612-13, 96 S.Ct. 2240. On cross-examina-

tion, prosecutor questioned why the III. defendants had not presented story this initially, and the trial court overruled de- A. objections fense counsel’s on self-incrimi- grounds. nation Id. at 96 S.Ct. 2240. trial, At Perez testified that at the time Court, however, reversed, arrest, of his had instructed explaining that “it fundamentally would be him to remain silent. On direct examina- unfair a deprivation process of due tion, following exchange occurred: allow the person’s arrested silence to be Q: [your And from that moment when impeach used to an explanation subse- attorney] told you [day] that to this quently offered at trial.” Id. at you’ve not opportunity had an over the S.Ct. 2240. The Court therefore held that year, advice, your lawyers’ last based on impeachment “the use for purposes of [a anyone really happened. tell what petitioner’s] silence at the time of arrest A: I have not anybody. said word to receiving and after warnings, Miranda vi- It’s painful year my been the most the Due olate[s] Process Clause of the life, not being say anything. able to Fourteenth Amendment.” Id. at Yes, house, I did leave that but I did not S.Ct. 2240. kill people. those persuasively explains Perez During closing argument, prosecutor just prosecution state did what the sought year stated that it took Perez “a to come Doyle, namely to do in use discrepan- “the up story with” his opined and further cy an exculpatory story between at trial he’s done is he’s for “[w]hat worked a full and silence at the time of arrest’ to create year on making up story to fit the evi- ‘an story inference that the was fabricated dence.” The trial court overruled defense along way’ somewhere in order to ‘fit objection counsel’s Fifth Amendment to within the seams of the State’s case.” Id. these statements. 2240. Accordingly,

The Texas Court of Appeals strong Criminal has made a “that showing reason- concluded that jurists (or, there was no constitutional able could debate whether that) error prosecutor’s matter, because agree petition “[t]he remarks should merely were a summation of and have reason- been resolved a different manner able deduction drawn from testi- [Perez’s] [on this that the issues issue] [at least] mony.” agreed, The district court presented adequate observ- were en- deserve “ ing further,” that Perez ‘opened couragement had the door’ to to proceed see Mil- Cockrell, prosecutor’s comments” and that the ler-El v. 123 U.S. prosecutor’s 1029, (2003); comments spoke to Perez’s S.Ct. 154 L.Ed.2d 931 see 2253(c), entitling him to a

also 28 U.S.C. America, of UNITED STATES COA.13 Plaintiff-Appellee,

v. CONCLUSION CARRASCO-TERCERO, also Valentin when, on learn- Khan abandoned Santacruz, as Gerardo known court’s but ing district Defendant-Appellant. informing her client or consulting

without 12-51243. No. and uni- made the deliberate anyone, she her client of to not inform lateral decision Appeals, of States Court United and to not file a notice Fifth Circuit. opportunity to barring his thus 13, 2014. March application. COA pursue likely a successful cramped interpretation majority’s responsible for contrary holds Perez wholly failure, despite being aban- Khan’s

doned, him a draconian and saddles

sanction, namely him of a crucial depriving appellate

stage of federal habeas review— Further, today’s decision

consideration. future misconduct

does little to deter abandoning

counsel such as Khan’s stage most crucial

death-row clients at a proceedings.

their every reasoning to the con- defendant does so after other witness 13. The district court's First, trary unpersuasive. the district court opportunity to tailor his and therefore has Doyle, provided only cursory 73, dismissal testimony accordingly, 529 U.S. at citing a footnote that addressed 1119, prosecu- but that is not what the case, inapplicable in stances that are this Robinson, did And in tor here. namely when "a defendant ... claims have “fairly permitted prosecutors to re- police an excul- [of told the same version spondí] argument to an of the defendant patory story upon told at arrest.” trial] adverting post-arrest] [his silence.” Second, 426 U.S. at S.Ct. 2240. 619 n. However, Robin- U.S. at 108 S.Ct. 864. Portuondo v. the district court’s citations to only testify also son not refused to at trial but Agard, 529 120 S.Ct. U.S. sought argue prosecution was to that the (2000), L.Ed.2d 47 States v. Robin- and United Id. at blame for his failure to take the stand. son, 99 L.Ed.2d thing, 108 S.Ct. 864. Perez did no such (1988), misplaced both involve because prose- argument to which the so there was no instance, distinguishable For circumstances. respond cution was entitled to under Robin- permits prosecutor Portuondo to draw the son. jury’s testifying to the fact that a attention

Case Details

Case Name: Louis Perez v. William Stephens, Director

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 26, 2014

Citation: 745 F.3d 174

Docket Number: 13-70002, 13-70006

Court Abbreviation: 5th Cir.