Mackey v. Hoffman

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Civil Procedure
  • Date Filed: 06-25-2012
  • Case #: 11-15115
  • Judge(s)/Court Below: Senior District Judge Garbis for the Court; Circuit Judges Alarcón and Silverman
  • Full Text Opinion

If a district court finds that an attorney effectively abandoned an incarcerated habeas petitioner, rendering him unable to file a timely appeal, the district court has discretion to grant relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

Andrew Mackey was convicted of attempted murder and other crimes in 2004. Mackey retained LeRue Grim for post-trial proceedings. Grim also represented Mackey in state post-conviction proceedings. In August 2007, Grim filed a petition under 28 U.S.C. § 2254, asserting ineffective assistance of counsel. The respondent filed its response in February 2008, and Grim did not file a traverse by the due date. In July 2009, the district court denied the § 2254 petition and Grim was promptly notified. Grim did not notify Mackey of the judgment. In March 2010, Mackey wrote to the district court to ask for the status on his case, and the district court informed Mackey of the denial of the petition and entry of judgment. The district court later ordered Grim to respond to Mackey. Grim never sought permission to withdraw as attorney of record. The district court asked Grim to file an appeal on Mackey’s behalf. Grim agreed to do so and orally moved to vacate the July 2009 judgment and to reopen the case. The district court denied the motion, stating that it lacked discretion under Federal Rule of Civil Procedure 60(b), and that it could not construe Mackey’s letter to the court to be a motion for an extension to file under Federal Rule of Appellate Procedure 4(a)(6). In December 2010, Kent Russell filed a notice of appeal for the denial of the motion to vacate on Mackey’s behalf. The Ninth Circuit held that if a district court finds an attorney effectively abandoned a petitioner, rendering him unable to file a timely appeal, the district court has the discretion to grant relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). REVERSED and REMANDED.

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