Louis Perez v. William Stephens, Director , 745 F.3d 174 ( 2014 )

Case: 13-70002 Document: 00512545592 Page: 1 Date Filed: 02/26/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2014
No. 13-70002 Lyle W. Cayce
consolidated with Clerk
No. 13-70006
LOUIS CASTRO PEREZ,
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
__________________________________________________________
LOUIS CASTRO PEREZ,
Petitioner-Appellee
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant
Appeals from the United States District Court
for the Western District of Texas
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Before JONES, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
A jury convicted Louis Perez of capital murder for the killings of his ex-
girlfriend, her roommate, and the roommate’s nine-year-old daughter, and he
was sentenced to death.1 The Texas Court of Criminal Appeals (“CCA”) affirmed
his conviction and sentence on direct appeal, and subsequently denied his
petition for writ of habeas corpus. Perez filed a complaint seeking a writ of
habeas corpus in the federal district court after exhausting his state-court
remedies pursuant to 28 U.S.C. § 2254 (which is part of the Antiterrorism and
Effective Death Penalty Act or “AEDPA”). The magistrate judge issued a Report
and Recommendation denying Perez’s habeas claims, which the district court
adopted in full. The district court then denied Perez’s request for a certificate
of appealability (“COA”).2
As more fully discussed below, allegedly without consulting Perez, his
attorney decided not to file a timely appeal. Upon motion, the district court
vacated and reentered its judgment pursuant to Federal Rule of Civil Procedure
60(b)(6), thereby allowing Perez to file an appeal within thirty days of the
reentered judgment, which he did. In a case designated Case No. 13-70006, the
Director of the Texas Department of Criminal Justice’s Correctional Institutions
Division (“Director”) appealed from the district court’s grant of Perez’s motion
to vacate and reenter judgment and subsequently filed a “Motion to Dismiss
Appeal for Want of Jurisdiction” with this court, which we ordered carried with
1
The facts underlying the conviction are not helpful to understanding this appeal’s
disposition. A complete recitation of the facts is available in the magistrate judge’s Report and
Recommendation. See Perez v. Quarterman, No. A-09-CA-081 LY, 2011 U.S. Dist. LEXIS
149275 (W.D. Tex. Dec. 29, 2011).
2
Accordingly, we refer to the magistrate judge’s report as that of the district court.
2
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the case. In Case No. 13-70002, Perez appealed the reentered judgment,
requesting a COA on a number of grounds.
We GRANT the Director’s motion, VACATE the Civil Rule 60(b)(6)3 order
and reentered judgment (therefore leaving in place the original March 27, 2012
judgment), and DISMISS Perez’s appeal (No. 13-70002) for want of jurisdiction.
I. Background
The district court entered judgment denying the application for writ of
habeas corpus and a COA on March 27, 2012. Accordingly, the deadline to file
notice of appeal was April 26, 2012. See FED. R. APP. P. 4(a)(1)(A). Perez’s
attorney, Sadaf Khan, received notice of the order the same day judgment was
entered, but, after conducting research, affirmatively decided not to file an
appeal. Khan did not notify Perez or the consulting attorney, Richard Burr, of
the judgment in time to timely file a notice of appeal, nor did she consult with
them about whether to file an appeal. In other words, Khan never obtained
Perez’s agreement to waive an appeal. Burr learned of the judgment after the
deadline to timely appeal had passed, and he informed Khan that she needed to
file an appeal as a matter of course. Accordingly, on June 25, 2012, Khan moved
to reopen the time to file a notice of appeal pursuant to Federal Rule of Appellate
Procedure 4(a)(6). The district court denied the motion, finding that Khan
received notice of the judgment when it was entered and adding that she missed
the May 29, 2012 deadline to file an Appellate Rule 4(a)(5) motion to extend. See
FED. R. APP. P. 4(a)(5).
Perez secured new counsel who subsequently filed Appellate Rule 4(a)(5)
and 4(a)(6) motions, as well as a motion under Civil Rule 60(b)(6), arguing that
Perez missed the deadline because Khan abandoned him. On December 18,
3
To avoid confusion, we will use the term “Appellate Rule __” to refer to a specific
Federal Rule of Appellate Procedure and “Civil Rule __” to refer to a specific Federal Rule of
Civil Procedure.
3
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2012, the district court—finding that Khan had abandoned Perez—entered
judgment granting the Civil Rule 60(b)(6) motion. It then directed the clerk to
reenter the March 27 judgment so that Perez could timely appeal. The court
noted that it otherwise would have granted Perez’s Appellate Rule 4(a)(6)
motion. On January 16, 2013, Perez timely appealed the district court’s
reentered judgment; the Director also timely appealed the district court’s grant
of Civil Rule 60(b)(6) relief.
II. Applicability of Civil Rule 60(b)(6)
“[We] review[] a district court’s decision to grant or deny relief under
[Civil] Rule 60(b) for abuse of discretion.” Flowers v. S. Reg’l Physician Servs.,
Inc., 286 F.3d 798, 800 (5th Cir. 2002). “‘A district court abuses its discretion if
it bases its decision on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.’” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638
(5th Cir. 2005) (quoting Kennedy v. Tex. Utils., 179 F.3d 258, 265 (5th Cir.
1999)).
The first question before us is a simple one, though the answer is less so.
Does the district court have the power to allow an otherwise untimely appeal by
using Civil Rule 60(b)(6) to reenter a judgment solely in order to permit such an
appeal to become timely?4 If the answer to the question is “yes,” then we must
examine under what circumstances the district court could do so.5 If the answer
4
The district court ruled in the alternative that it would have granted the Appellate
Rule 4(a)(6) motion, despite its earlier conclusion that this rule did not apply because Khan
received timely notice. Perez does not argue that Appellate Rule 4(a)(6) would provide an
alternate basis to find his appeal timely. This rule does not cover an attorney’s decisions that
lead to an untimely appeal. See Resendiz v. Dretke, 452 F.3d 356 (5th Cir. 2006). Even if
Appellate Rule 4(a)(6) were an available source of relief in a case such as this one, as
suggested by the dissenting opinion, it permits only a fourteen-day reopening of the time for
appeal. This appeal was filed twenty-eight days after the district court’s Civil Rule 60(b)(6)
order. Thus, Appellate Rule 4(a)(6) does not aid Perez here.
5
Because we answer this question “no,” we have no occasion to address what the
parameters of “attorney abandonment” are. We note, however, that Khan’s decision not to
4
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is “no,” then the district court lacked the power to do what it did, and we must
vacate the order. The answer to the question requires consideration of some
history. Prior to 1991, we allowed the use of Civil Rule 60(b)(6) to circumvent
Appellate Rule 4(a) in cases where the clerk failed to send the required notice to
the parties that a judgment had been entered. See Smith v. Jackson Tool & Die,
Inc., 426 F.2d 5 (5th Cir. 1970). In Smith, we stated that while
[w]e are fully aware that various cases have held that a motion to
vacate cannot be granted for the sole purpose of extending the time
for appeal nor can it be invoked as a substitute for appeal. . . . [W]e
must also recognize that where the net result of adhering to the
letter of the rules of procedure is to thwart rather than to promote
justice, the Court must be wary of their rigid application.
Id. at 7–8.
In 1991, however, Appellate Rule 4(a) was amended specifically to allow
the district court to re-open the appeal time when the moving party does not
receive notice under Civil Rule 77(d), which provides for clerks to give parties
notice of judgments. FED. R. APP. P. 4(a)(6). That same year, 28 U.S.C. § 2107,
which provides the statutory time frame for civil appeals, was amended to allow
extensions of time in the same circumstances as those encompassed by Appellate
Rules 4(a)(5) and 4(a)(6).
Following these amendments, we held that Civil Rule 60(b)(6) is no longer
available in cases that are analogous to Smith. See Matter of Jones, 970 F.2d 36,
37–39 (5th Cir. 1992) (affirming the denial of a Civil Rule 60(b)(6) motion to
vacate and reinstate the judgment where there was no notice because the
appellants failed to meet the requirements of Appellate Rule 4(a)(6)); see also
Vencor Hosps. v. Std. Life & Accident Ins. Co., 279 F.3d 1306, 1312 (11th Cir.
appeal, while not hers to make, was, according to her, based on research and her conclusion
that such an appeal would not be “viable” and would detract from her strategy of pursuing an
“actual innocence” claim.
5
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2002) (same); Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357 (8th Cir. 1994)
(same). Prior to 1991, we had decided some cases that hinted (without holding)
that it was conceivable that a situation could exist that would allow using Civil
Rule 60(b) to extend the time for appeal even in situations not governed by
Smith. See United States v. O’Neil, 709 F.2d 361, 373 (5th Cir. 1984) (stating
“[e]xcept in truly extraordinary cases, Rule 60(b) relief should not be used to
extend the time for appeal,” and thus implicitly suggesting there might be such
a “truly extraordinary case”);6 see also In re Air Crash at Dall./Fort Worth
Airport, 852 F.2d 842, 844 (5th Cir. 1988) (citing 11 WRIGHT & MILLER § 2864 at
214–15). After the statutory and rule changes of 1991, however, our decisions
no longer contained even such “hints.”7
Instead, in 2002, we decided Dunn v. Cockrell, 302 F.3d 491 (5th Cir.
2002). In Dunn, we affirmed a district court’s denial of a habeas petitioner’s
Civil Rule 60(b)(1) motion seeking to vacate the original judgment so that he
could timely appeal, holding that “[R]ule 60(b) cannot be used to circumvent the
limited relief available under Federal Rule of Appellate Procedure 4(a)(5), which
advances the principle of protecting the finality of judgments.” Id. at 492–93
(citation omitted). The language used in Dunn makes it particularly clear that
where the sole purpose of a Civil Rule 60(b) motion is “to achieve an extension
of the time in which to file a notice of appeal, it must fail.” 302 F.3d at 493; see
also O’Neil, 709 F.2d at 373 (“[W]here . . . the [Civil] Rule 60(b) motion . . . asks
6
O’Neil’s actual holding was that the “appeal periods in FED. R. APP. P. 4 are
mandatory and jurisdictional. . . [Civil] Rule 60(b) cannot be used to circumvent its procedures
. . . . This is particularly so where . . . the [Civil] Rule 60(b) motion is made after time for
appeal has expired . . . [and] asks only that the order be vacated and reentered.” (citations
omitted)). 709 F.2d at 373.
7
One post-1991 case mentioned in a passing footnote that “[w]e have recognized that
this rule may yield in truly extraordinary cases.” Latham v. Wells Fargo Bank, N.A., 987 F.2d
1199, 1203 n.7 (5th Cir. 1993) (citing O’Neil, 709 F.2d at 373).
6
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only that the order be vacated and reentered. . . . the [Civil] Rule 60(b) motion
is avowedly being used only to extend the time for appeal. It hence squarely
collides with [Appellate] Rule 4(a)(5).”).8
Following our decision in Dunn, the Supreme Court held in Bowles v.
Russell, 551 U.S. 205, 214 (2007), that the “timely filing of a notice of appeal in
a civil case is a jurisdictional requirement.” The Court explained that courts
lacked power to carve out equitable exceptions to Appellate Rule 4(a) because the
deadlines to appeal are jurisdictional statutory requirements under 28 U.S.C.
§ 2107. Id. Bowles unequivocally states that “the timely filing of a notice of
appeal in a civil case is a jurisdictional requirement. Because this Court has no
authority to create equitable exceptions to jurisdictional requirements, use of the
‘unique circumstances’ doctrine is illegitimate.” Id. at 214.
The strong language in Bowles, while not referring specifically to Civil
Rule 60(b), does not permit appellate courts to create exceptions to circumvent
the appellate deadlines as set forth in Appellate Rule 4(a) and § 2107. This is
particularly true because Appellate Rule 4 “carries § 2107 into practice.” Id. at
208. According to 28 U.S.C. § 2107(a), a party must appeal within 30 days of the
entry of judgment, and district courts have limited authority to grant an
extension. The limited exceptions stated in § 2107 are present in Appellate Rule
4; however, there is no “extraordinary circumstances” or similar exception. In
fact, 28 U.S.C. § 2107 has been amended twice since the Supreme Court decided
Bowles. Neither amendment attempts to add an exception for “extraordinary”
or “unique” circumstances, suggesting that Congress does not intend for any
exceptions, other than the ones already codified, to be used by parties to avoid
8
Although Dunn addressed Civil Rule 60(b)(1), its reasoning was not limited to
subpart 1. 302 F.3d at 493 (where “sole purpose” of motion is not to attack underlying
judgment but rather to extend the time for appeal, “it must fail”). The reasoning is equally
applicable to subpart 6. See also fn.8, infra.
7
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strict compliance with appellate deadlines. Therefore, using Civil Rule 60(b)(6)
to circumvent the exceptions codified in 28 U.S.C. § 2107 runs afoul of Bowles’s
clear language that courts cannot create exceptions to jurisdictional
requirements that are statutorily based. See 551 U.S. at 212–14.
Perez and the dissenting opinion point to recent Supreme Court cases
using equitable rules in death penalty cases to avoid otherwise harsh results
occasioned by improper attorney conduct. In Maples v. Thomas, 132 S. Ct. 912,
917 (2012), the Supreme Court held that attorney abandonment constitutes an
extraordinary circumstance that can be sufficient “cause” to relieve a federal
habeas petitioner from the consequences of a procedural default in state court.
There, during the state post-conviction phase, the defendant’s pro bono attorneys
left their employment at their law firm and discontinued representation of the
defendant without informing either the defendant or the court. Id. at 919. No
other attorney at the firm took responsibility for the case in any way, and local
counsel did not act upon receiving a copy of the dismissal. Id. at 919–20. As a
result, the time to file an appeal in the state court expired. Id. at 920. The
district court determined that the procedural error precluded federal habeas
consideration, and the Eleventh Circuit affirmed. Id. The Supreme Court
reversed, distinguishing attorney abandonment, which satisfies the “cause”
requirement, from attorney negligence, which does not. Id. at 922–23; see also
Martinez v. Ryan, 132 S. Ct. 1309 (2012) (creating an equitable rule to avoid a
procedural default in certain defined situations caused by ineffective assistance
of counsel in state proceedings).
The Supreme Court cases Perez and the dissenting opinion cite do not
involve exceptions to statutory limits on appellate jurisdiction; they address
equitable exceptions to judge-created procedural bars or non-jurisdictional
statutes. See Holland v. Florida, 560 U.S. 631 (2010) (concluding that AEDPA
statute of limitations is not jurisdictional and, therefore, concluding that
8
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equitable tolling of the AEDPA limitations period was permissible in the
circumstance of attorney abandonment). While the dissenting opinion would
read Bowles as limited to cases where Appellate Rule 4(a)(6) would govern, its
language is not so limited, and its reasoning rests on the statutory nature of
these jurisdictional limits under § 2107.
More importantly, even assuming arguendo we were convinced that the
current Court would not (or should not) continue to follow Bowles, we are not
free to disregard Bowles. See Ballew v. Cont’l Airlines, 668 F.3d 777, 782 (5th
Cir. 2012). “We are a strict stare decisis court and are in no position to challenge
the statutory construction utilized by the Supreme Court . . . . The Supreme
Court has sole authority to overrule its own decisions . . . .” Id. (citations and
internal quotation marks omitted). In other words, we do not “read tea leaves;”
we follow the law as it is, respecting the Supreme Court’s singular role in
deciding the continuing viability of its own precedents.
Other circuits are in accord, with one exception. See, e.g., Lacour v. Tulsa
City-Cnty. Jail, 517 F. App’x 617, 618–19 (10th Cir. 2013) (unpublished) (holding
that Civil Rule 60(b) motions cannot toll the time for filing a notice of appeal
because, under Bowles, the timely filing requirement is mandatory and
jurisdictional)9; Cumberland Mut. Fire Ins. Co. v. Express Prod., Inc., 529 F.
App’x 245, 252 (3d Cir. 2013) (unpublished) (“It is well established that [Civil]
Rule 60 is not a proper vehicle for extending the time to file an appeal that has
been rendered untimely by the expiration of the thirty-day time window
provided by [Appellate] Rule 4(a).” (citing Bowles, 551 U.S. at 206–07)); Hall v.
9
Contrary to the dissenting opinion’s suggestion, Lacour does not hold that “a
petitioner may rely on [Civil] Rule 60(b) to extend the time for filing an appeal.” Instead, it
held that Lacour, who was challenging the substance of the judgment, not just seeking
resinstatement of his appellate timetable, could not challenge the underlying judgment on
appeal because he did not file a timely Civil Rule 59 motion. 517 F. App’x at 619. Instead, the
appeal was timely only as to the Civil Rule 60(b) motion’s denial. The court held that the
district court did not abuse its discretion in denying Civil Rule 60(b) relief.
9
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Scutt, 482 F. App’x 990, 990–91 (6th Cir. 2012) (unpublished) (same); In re
Sealed Case (Bowles), 624 F.3d 482, 486–87 (D.C. Cir. 2010) (same);10 see also
White v. Jones, 408 F. App’x 293, 295–96 (11th Cir. 2011) (unpublished) (While
refusing to make a decision on whether Civil Rule 60(b)(6) could ever be used to
circumvent Appellate Rule 4(a), the court stated in dicta that Bowles likely
means that the court would be deprived of jurisdiction if the petitioner failed to
comply with a statutory deadline (citing Dunn, 302 F.3d at 492)).
The exception is the Ninth Circuit. In Mackey v. Hoffman, 682 F.3d 1247(9th Cir. 2012), it concluded that Civil Rule 60(b)(6) could be used to vacate and
reenter judgment where attorney abandonment was found. The Ninth Circuit
asserted that its decision does not run afoul of Bowles because “Mackey is not
receiving relief pursuant to [Appellate] Rule 4(a)(6).” Id. at 1253. However, the
Ninth Circuit did not address the fact that Bowles permitted no equitable
exceptions and used mandatory, unequivocal language when referring to the
statutory grant of civil appellate jurisdiction. Nor does it address the fact that
Appellate Rule 4(a)(5) exists and encompasses “excusable neglect” and “good
cause,” consistently with § 2107, while a separate “extraordinary circumstances”
exception would be inconsistent with § 2107.11
10
We also note the persuasive reasoning of two factually similar district court cases
from outside our circuit. Garrett v. Presesnik, No. 2:09-CV-11076, 2012 U.S. Dist. LEXIS
85411, at *9–11 (E.D. Mich. May 4, 2012) (unpublished) (denying petitioner’s Civil Rule
60(b)(6) motion seeking relief to file a timely notice of appeal where petitioner’s counsel for the
habeas proceedings failed to file the notice of appeal, despite being aware that the petitioner
wanted to appeal the denial because, under Bowles, Appellate Rule 4(a)’s time limits are
“mandatory and jurisdictional,” and therefore Civil Rule 60(b) cannot be used to escape
Appellate Rule 4(a)’s requirements to re-open the time for appeal); Joyner v. United States, No.
3:06-00016, 2011 U.S. Dist. LEXIS 64790, at *6–7 (D.S.C. June 17, 2011) (unpublished)
(denying a petitioner’s Civil Rule 60(b)(6) motion because, under Bowles, the court may not
create equitable exceptions to jurisdictional requirements)
11
Alternatively, one could say that attorney “abandonment,” if such occurred, would
constitute “good cause” for the failure to timely file such that this circumstance is
encompassed by Appellate Rule 4(a)(5) exception for “good cause.” Perez’s contrary arguments
run afoul of Dunn.
10
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In this case, Perez is solely using a Civil Rule 60(b) motion as a means of
achieving an untimely appeal. He does not claim he was denied a “full and fair
hearing before the district court nor [does he] seek[] by the ruling to have the
district court alter its ruling.” Dunn, 302 F.3d at 493 (citation and internal
quotation marks omitted). We conclude under Supreme Court and our
precedents that the district court lacked the power to circumvent the rules for
timely appeals in the manner it did. Accordingly, we conclude that we must
VACATE the order granting Civil Rule 60(b)(6) relief and reentering the
judgment.12 That leaves the March 2012 judgment as the “live” judgment as to
which Perez’s appeal is, admittedly, untimely. As a result, we GRANT the
Director’s motion to dismiss 13-70002, Perez’s appeal, for want of jurisdiction.
Civil Rule 60(b)(6) order VACATED (Case No. 13-70006); Perez’s appeal
DISMISSED (Case No. 13-70002).
12
Our ruling in no way implies that it would be proper for a lawyer to fail to advise a
client of an adverse judgment and the right to appeal. Cf. Burt v. Titlow, 134 S. Ct. 10, 18
(2013) (holding that the Court’s decision declining to set aside state court finding that a lawyer
was not ineffective did not exonerate the lawyer from the fact that he “may well have violated
the rules of professional conduct”). The decision to waive an appeal is for the client. See TEX.
DISCIPLINARY R. PROF’L CONDUCT R. 1.02 (client controls general objectives and methods of
representation); See also TEX. DISCIPLINARY R. PROF’L CONDUCT R.1.03 (requiring
communication with and explanations to a client). In consideration of our duties under Canon
3(B)(5) of the Code of Conduct for United States Judges and recognizing that we do not have
all the facts regarding Perez’s attorneys’ conduct, we raised this issue with both sides’
attorneys at oral argument. In a supplemental brief following oral argument, Perez’s new
attorneys explained that the prior attorney’s conduct appears to have been a “one-time
occurrence attributable to her medical condition” such that they concluded that referral to
disciplinary authorities was not appropriate.
11
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JAMES L. DENNIS, Circuit Judge, dissenting.
I respectfully dissent.
Ordinarily, “the attorney is the prisoner’s agent, and under ‘well-settled
principles of agency law,’ the principal bears the risk of negligent conduct on
the part of his agent.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012).
However, the Supreme Court has explained that “[a] markedly different
situation is presented[] . . . when an attorney abandons his client without
notice, and thereby occasions the default.” Id. (emphasis added). “Having
severed the principal–agent relationship, an attorney no longer acts, or fails
to act, as the client’s representative.” Id. at 922-23. Rather, “[c]ommon sense
dictates that a litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent in any meaningful
sense of that word.” Id. at 923 (quoting Holland v. Florida, 130 S. Ct. 2549,
2568 (2010) (Alito, J., concurring). Therefore, “[u]nder agency principles, a
client cannot be charged with the acts or omissions of an attorney who has
abandoned him. Nor can a client be faulted for failing to act on his own
behalf when he lacks reason to believe his attorneys of record, in fact, are not
representing him.” Id. at 924.
As the majority opinion states, the district court denied Perez relief and
further denied him a certificate of appealability (“COA”). At that point, time
began to elapse for Perez to move for a COA in this court. The majority, in
essence, concludes that Perez failed to do so in a timely manner, precluding
further review of his conviction and sentence. But to say that Perez failed to
act in a timely manner is to elide a crucial point. Perez’s attorney, Sadaf
Khan (“Khan”), timely received notice of the district court’s decision denying
Perez relief but she silently, autonomously, and independently chose to take
no further action in Perez’s case. Without informing or conferring with
anyone, including Perez, she deliberately let the time to move for a COA
12
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expire. Khan egregiously breached her duty to Perez as his attorney by
abandoning him without notice and causing him to lose his right to appeal.
Attorney abandonment, the Supreme Court has indicated, is sufficient
to constitute the “extraordinary circumstances” necessary to trigger relief
from judgment under Federal Rule of Civil Procedure 60(b)(6). See id. at 917,
927 (2012); Holland, 130 S. Ct. at 2564; see also Gonzalez v. Crosby, 545 U.S.
524, 535 (2005). Accordingly, the district court did not abuse its discretion
when, considering Khan’s serious breach of ethical duty and abandonment of
Perez at the precise moment when he crucially needed her counsel and
representation, it determined that relief from judgment was warranted and
reentered the judgment denying Perez habeas relief in order to permit him,
aided by new counsel, to timely file a notice of appeal. Holding Perez
responsible for Khan’s gross breach of duty is a manifest miscarriage of
justice that is not compelled by any precedent of the Supreme Court or this
court and erroneously creates a circuit split. See Mackey v. Hoffman, 682
F.3d 1247, 1252-53 (9th Cir. 2012).
Nor does Bowles v. Russell, 551 U.S. 205 (2007), bar granting Perez
relief. In Bowles, the Supreme Court held that the time periods contained in
Federal Rule of Appellate Procedure 4(a)(6) are “mandatory and
jurisdictional.” 551 U.S. at 209. Rule 4(a)(6) permits the district court to
reopen the time to file an appeal if the moving party demonstrates that he did
not receive notice of the judgment to be appealed under Federal Rule of Civil
Procedure 77(d). FED. R. APP. P. 4(a)(6). Perez, however, seeks relief
pursuant to Federal Rule of Civil Procedure 60(b)(6) to cure the problem
caused when Khan abandoned him. By contrast, at no point in Bowles did the
petitioner allege that he was entitled to relief because he had been abandoned
by his attorney. Moreover, Perez has not argued on appeal that he failed to
receive notice of the judgment under Rule 77(d), so Bowles presents no bar
13
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and does not dictate today’s unfortunate outcome. Cf. Mackey, 682 F.3d at
1253.
BACKGROUND
On March 27, 2012, the district court entered judgment denying Perez
habeas relief and further denying Perez a COA. Accordingly, the deadline to
file a notice of appeal was April 26, 2012. See FED. R. APP. P. 4(a)(1)(A).
According to Khan’s affidavit, she received notice of the district court’s order
the same day that the district court denied Perez relief but determined,
apparently without consulting Richard Burr (“Burr”), the consulting
attorney,1 or her client, that an appeal would not be successful.2 In other
words, Khan knew of the district court’s ruling, unilaterally chose to do
nothing, and intentionally and silently allowed Perez’s right to request a COA
expire by failing to file a notice of appeal by April 26, 2012. In fact, between
March 2012, when the district court rendered its decision, and June 2012,
Khan did not talk to Burr or Perez at all. The two attorneys spoke only after
Burr learned of the district court’s March order and called Khan. On June
25, 2012, Khan sent Perez a letter informing him that she had not timely filed
an appeal on his behalf.
1
As the consulting attorney, Burr assisted Khan in representing Perez, with Khan
asking Burr case-specific questions from time to time and Burr providing his counsel in
response. Burr consulted on Perez’s case as part of his work with the Texas Habeas
Assistance and Training Project (“the TX HAT Project”). The TX HAT Project is composed of
experienced attorneys, each of whom maintains a private practice and directly represents
federal capital habeas petitioners from Texas. Additionally, these attorneys consult with
counsel appointed to represent Texas capital habeas petitioners, log between 400 and 1000
hours per year in this capacity, and consult on up to 150 cases at any given time. Because of
this, Burr explained that he was not able to meaningfully consult on every case—and that he
could not force counsel to consult him on every case—and that he would instead focus on the
subset of cases in which counsel actively sought his advice.
2
Burr was not the counsel of record in the case and so he could not sign up to receive
PACER notifications. Consequently, he did not receive notice of the district court’s judgment.
However, even if he had, because he was not counsel of record, he possessed no authority to
act on Perez’s behalf
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Thereafter, Burr instructed Khan that she needed to file a notice of
appeal; after all, he said, the decision whether to appeal was not hers to
make. Accordingly, on June 25, 2012, Khan moved to reopen the time to file a
notice of appeal. See FED. R. APP. P. 4(a)(6).3 The district court denied the
motion, finding that Khan had received notice of the judgment when it was
entered and that she had missed the May 29, 2012 deadline to file a Rule
4(a)(5) motion to extend. See FED. R. APP. P. 4(a)(5).4
Khan withdrew as counsel and Perez secured new counsel who
subsequently filed Rule 4(a)(5) and 4(a)(6) motions, as well as a motion for
relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6),
arguing that Perez missed the deadline because Khan had abandoned him.
On December 18, 2012, the district court—finding that Khan had abandoned
Perez—entered judgment granting the Rule 60(b)(6) motion and directed the
clerk to reenter the March 27 judgment so that Perez could timely appeal.
The court noted that it otherwise would have granted Perez’s Rule 4(a)(6)
motion to reopen the time to file his appeal. On January 16, 2013, Perez
timely appealed the district court’s fresh judgment denying habeas relief and
determining that a COA should not issue. The state cross appealed the
district court’s grant of Perez’s motion to vacate and reenter judgment the
next day and later moved in this court to dismiss Perez’s appeal for want of
jurisdiction.
3
That rule permits the district court to “reopen the time to file an appeal for a period
of 14 days after the date when its order to reopen is entered” only if (1) “the court finds that
the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order,” (2) “the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party receives notice . . . , whichever is
earlier,” and (3) “the court finds that no party would be prejudiced.
4
That rule permits the district court to “extend the time to file a notice of appeal if[]
. . . a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires.”
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DISCUSSION
I.
Federal Rule of Civil Procedure 60(b)(6) permits a district court to
relieve a party from a final judgment for “any . . . reason that justifies relief.”
FED. R. CIV. P. 60(b)(6). The Supreme Court has explained that only
“extraordinary circumstances” justify 60(b)(6) relief. Gonzalez, 545 U.S. at
535. Accordingly, we must determine (1) whether attorney abandonment that
results in a petitioner’s failure to timely file an appeal constitutes
“extraordinary circumstances” sufficient to justify relief under Rule 60(b)(6)
and (2) whether Khan in fact abandoned Perez. The Supreme Court and the
Ninth Circuit have answered the first question in the affirmative, and the
facts of this case unquestionably indicate that Khan abandoned Perez right
when he needed her most. See Maples, 132 S. Ct. at 917, 927; Holland, 130 S.
Ct. at 2564; Mackey, 682 F.3d at 1252-53.
A.
In Maples v. Thomas, the Supreme Court held that attorney
abandonment constitutes sufficient “cause” to relieve a habeas petitioner,
Maples, from the bar to federal review caused by procedural default in state
court. 132 S. Ct. at 917; see also id. at 927 (describing Maples’s abandonment
as “extraordinary circumstances”). Maples’s pro bono attorneys, during the
state postconviction proceedings, left their employment at their law firm and
discontinued their representation of the petitioner without informing either
the petitioner or the court. Id. at 916-17, 919. No other attorney at the firm
“entered an appearance on Maples’[s] behalf, moved to substitute counsel, or
otherwise notified the court of any change in [the defendant’s]
representation.” Id. at 919.
In May 2003, the state court denied Maples’s habeas application. Id. at
917. “Notice of the court’s order were posted to the New York attorneys at the
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address of the law firm with which they had been associated.” Id. However,
“[t]hose postings were returned, unopened, to the trial court clerk, who
attempted no further mailing.” Id. “With no attorney of record in fact acting
on Maples’[s] behalf, the time to appeal ran out.” Id. Maples subsequently
filed a federal habeas application, but the district court determined that the
failure to appeal the trial court’s ruling in the state habeas proceeding
precluded federal habeas review, and the Eleventh Circuit agreed. See id.
The Supreme Court, however, reversed, distinguishing between mere
“[n]egligence on the part of a prisoner’s postconviction attorney[, which] does
not qualify as ‘cause’” due to the principal-agent relationship between a
prisoner and his attorney, and abandonment, which does. Id. at 922.
Contrasting the former with the latter, the Court explained:
A markedly different situation is presented[] . . . when an
attorney abandons his client without notice, and thereby
occasions the default. Having severed the principal–agent
relationship, an attorney no longer acts, or fails to act, as the
client’s representative. His acts or omissions therefore “cannot
fairly be attributed to [the client].”
Id. at 922-23 (second alteration in original) (emphasis added) (citation
omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)); see also
Holland, 130 S. Ct. at 2564 (concluding that attorney abandonment may
constitute an “extraordinary circumstance” justifying equitable tolling under
28 U.S.C. § 2244(d)); id. at 2568 (Alito, J., concurring) (“Common sense
dictates that a litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent in any meaningful
sense of that word.”). Thus, the Maples Court held that
under agency principles, a client cannot be charged with the acts
or omissions of an attorney who has abandoned him. Nor can a
client be faulted for failing to act on his own behalf when he lacks
reason to believe his attorneys of record, in fact, are not
representing him.
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132 S. Ct. at 924.
Ultimately, the Court concluded that Maples had shown that his
attorneys had abandoned him. See id. at 924-27. Maples’s putative
representatives had left their jobs at the firm and had done so without
notifying Maples and without withdrawing as counsel of record as required by
the relevant local rules. Id. at 924. And because the attorneys continued to
be listed as counsel of record, Maples was not entitled to receive notice of any
order. Id. at 925.5 Moreover, the Court underscored the grave conflict of
interest presented by attorneys from the same firm attempting to represent
Maples following the procedural default:
Following the default, the firm’s interest in avoiding damage to
its own reputation was at odds with Maples’[s] strongest
argument—i.e., that his attorneys had abandoned him, therefore
he had cause to be relieved from the default. Yet [the firm] did
not cede Maples’[s] representation to a new attorney, who could
have made Maples’[s] abandonment argument plain to the Court
of Appeals. Instead, the firm represented Maples through
briefing and oral argument in the Eleventh Circuit, where they
attempted to cast responsibility for the mishap on the clerk of the
Alabama trial court.
Id. at 925 n.8. Accordingly, the Supreme Court concluded that “[t]here was
indeed cause to excuse Maples’[s] procedural default.” Id. at 927.
Through no fault of his own, Maples lacked the assistance of any
authorized attorney during the 42 days Alabama allows for
noticing an appeal from a trial court's denial of postconviction
relief. As just observed, he had no reason to suspect that, in
reality, he had been reduced to pro se status. Maples was
disarmed by extraordinary circumstances quite beyond his
control. He has shown ample cause, we hold, to excuse the
procedural default into which he was trapped when counsel of
record abandoned him without a word of warning.
5
See ALA. R. CRIM. P. 34.5 (“[U]pon the entry of any order in a criminal proceeding
made in response to a motion, . . . the clerk shall, without undue delay, furnish all parties a
copy thereof by mail or by other appropriate means.”); ALA. R. CRIM. P. 34.4 (“[W]here the
defendant is represented by counsel, service shall be made upon the attorney of record.”).
18
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Id.
The Ninth Circuit has applied Maples’s reasoning to grant relief from
judgment under Rule 60(b)(6) in a situation materially indistinguishable from
the present case. See Mackey, 682 F.3d at 1252-53. In Mackey, after the
district court had denied the petitioner’s habeas application on the merits,
Mackey’s attorney neither notified him nor filed a notice of appeal, despite
having inaccurately informed the petitioner that he was awaiting a trial date.
Id. at 1248-49.6 Consequently, the time to file an appeal had lapsed, and the
district court denied a Rule 60(b)(6) motion to vacate, determining that it
lacked discretion to do so. Id. at 1250.
Like Supreme Court in Maples, the Mackey court distinguished
between negligence and abandonment. Id. at 1253. The court explained that
the Ninth Circuit had previously held that gross negligence amounting to
constructive abandonment could constitute extraordinary circumstances
under Rule 60(b)(6). Id. at 1251 (citing Cmty. Dental Servs. v. Tani, 282 F.3d
1164, 1169-71 (9th Cir. 2002)). “Relief in such a case,” the Mackey court
explained, “is justified because gross negligence by an attorney, defined as
‘neglect so gross that it is inexcusable,’ ‘vitiat[es] the agency relationship that
underlies our general policy of attributing to the client the acts of his
attorney.’” Id. (alteration in original) (quoting Tani, 282 F.3d at 1168, 1171).
Thus, the Ninth Circuit held that “when a federal habeas petitioner has been
inexcusably and grossly neglected by his counsel in a manner amounting to
attorney abandonment in every meaningful sense that has jeopardized the
petitioner’s appellate rights, a district court may grant relief pursuant to Rule
60(b)(6).” Id. at 1253.
6
Evidently, Mackey’s attorney declined—or refused—to take any further action because
he had not been paid. See id. at 1249
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As with the attorneys in Maples, the Ninth Circuit concluded that
Mackey’s attorney had failed to observe the relevant local rules requiring him
to seek permission to withdraw as counsel of record. Id. at 1253.
Because Grim failed to notify the court of his intention to
withdraw, Mackey was deprived of the opportunity to proceed pro
se and to personally receive docket notifications from the court.
As a result, Mackey, an indigent prisoner who . . . believed that
his attorney was continuing to represent him, was wholly
unaware that the district court had denied his § 2254 petition.
Id. (citation omitted). However, because the district court had stated that “if
it possessed the discretion to vacate and reenter the judgment in order to
allow petitioner the opportunity to appeal, [it] would do so,” the Mackey court,
having concluded that the district court possessed such discretion, remanded
the case to the district court to determine, as a factual matter, whether
Mackey’s attorney had in fact abandoned him. Id. at 1254 (internal quotation
marks omitted).7
In sum, the Supreme Court has said that attorney abandonment
constitutes the kind of extraordinary circumstance that justifies relief from
judgment. See Maples, 123 S. Ct. at 917; Holland, 130 S. Ct. at 2552, 2562-
63; id. at 2568 (Alito, J., concurring). Applying Maples, the Ninth Circuit,
faced with facts nearly identical to those of the present case, held that
attorney abandonment constitutes the kind of extraordinary circumstances
necessary to trigger relief from judgment pursuant to Rule 60(b)(6). In light
of this persuasive authority, based on materially indistinguishable
circumstances, together with the Supreme Court’s clear mandate in Maples,
the district court correctly concluded that Perez may seek relief from
7
The court explained that it was granting relief for attorney abandonment under Rule
60(b)(6) rather than for failure to receive notice under Rule of Appellate Procedure 4(a)(6). Id.
Consequently, the court concluded that “[g]ranting relief to Mackey is not barred by Bowles
v. Russell.” Id. “Mackey,” the court explained, “[was] seeking relief pursuant to Rule 60(b)(6)
to cure a problem caused by attorney abandonment and not by a failure to receive Rule 77(d)
notice.” Id
20
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judgment on the grounds that his attorney abandoned him without notice and
caused him to lose his right to appeal.
B.
Khan’s unilateral decision not to notify Burr or Perez of the district
court’s judgment and not to pursue an appeal therefrom was an egregious
breach of the duties an attorney owes her client and thus constitutes
abandonment, not mere negligence for which Perez would ordinarily be
responsible. Khan knew of the district court’s judgment but elected to do
nothing and inform no one despite the fact that, under the relevant ethical
rules, the decision not to appeal was not hers to make. See, e.g., TEX. DISC. R.
PROF. CONDUCT 1.02-1.03.8 Of particular note is the commentary to Rule
1.02, which governs the scope and objectives of representation:
Doubt about whether a client–lawyer relationship still exists
should be clarified by the lawyer, preferably in writing, so that
the client will not mistakenly suppose the lawyer is looking after
the client’s affairs when the lawyer has ceased to do so. For
example, if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client but has
not been specifically instructed concerning pursuit of an appeal,
the lawyer should advise the client of the possibility of appeal
before relinquishing responsibility for the matter.
8
See also Holland, 130 S. Ct. at 2564 (describing “fundamental canons of professional
responsibility, which require attorneys to perform reasonably competent legal work, to
communicate with their clients, to implement clients’ reasonable requests, to keep their clients
informed of key developments in their cases, and never to abandon a client”); Burr Aff. ¶ 19
(consulting attorney stating that “[i]n my more than 30 years of experience in post-conviction
proceedings, I have seen exceedingly few instances in which habeas counsel have failed to
forward a copy of a deadline-triggering judgment to a death penalty client, failed to consult
with a client regarding the client’s desire to appeal, and failed to take any action on behalf of
a client during an extended period in which jurisdictional appellate deadlines are missed”)
21
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TEX. DISC. R. PROF. CONDUCT 1.02 cmt. 6 (emphasis added).9 This Khan failed
to do. Consequently, Khan’s omissions effectively severed the principal–agent
relationship. To hold Perez accountable for Khan’s unilateral decision not to
take an appeal would by contrary to the Supreme Court’s directive that the
acts and omissions of an attorney who, by abandoning her client, has severed
the attorney–client relationship “‘cannot fairly be attributed to [the client].’”
Maples, 132 S. Ct. at 922-23 (alteration in original) (quoting Coleman, 501
U.S. at 753).
Not only did the decision whether to take an appeal belong to Perez, not
Khan, but when Khan unilaterally made this decision for him, she exposed
herself to a serious conflict of interest further underscoring the extent of the
abandonment. See Downs v. McNeil, 520 F.3d 1311, 1314 (11th Cir. 2008)
(“[U]nder fundamental tenets of agency law, a principal is not charged with
an agent’s actions or knowledge when the agent is acting adversely to the
principal’s interests.”); see also Maples, 132 S. Ct. at 925 n.8. On discovering
the seriousness of her error, Khan should have immediately ceded Perez’s
representation to new counsel who could have made Perez’s strongest
argument—that she had abandoned him—as soon as possible. That Khan
instead moved, unsuccessfully, to reopen the time to file a notice of appeal
9
See, e.g., Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (“[T]he attorney
must ascertain whether the defendant wishes to appeal. The decision to appeal lies solely
with the defendant, and the attorney’s duty is to advise him as to the matters described above.
. . . If the defendant decides to appeal, the attorney must ensure that written notice of appeal
is filed with the trial court.”); Ex Parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988)
(“[T]rial counsel, retained or appointed, has the duty, obligation and responsibility to consult
with and fully to advise his client concerning meaning and effect of the judgment rendered by
the court, his right to appeal from that judgment, the necessity of giving notice of appeal and
taking other steps to pursue an appeal, as well as expressing his professional judgment as to
possible grounds for appeal and their merit, and delineating advantages and disadvantages
of appeal.”); Brice v. Denton, 135 S.W.3d 139, 149 (Tex. App. 2004) (“[I]n the absence of a
limitation on the scope of appointed counsel’s representation in the appointment order, or an
order granting appointed counsel’s motion to withdraw, we assume that counsel has a
continuing obligation to represent a client until the client no longer desires an appointed
attorney to appeal the matter.”).
22
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underscores this conflict. Why would an attorney argue that she had
abandoned Perez when to do so would expose her to significant professional
and ethical consequences? This perhaps explains why it was months before
new attorneys stepped in to represent Perez to assert his only and best
argument for relief—that his previous attorney had abandoned him. The
professional risk to which Khan exposed herself on failing to consult with her
client and thereby abandoning him underscore the extent to which the
relationship between Khan and Perez had been severed. Under these
circumstances, Perez cannot be held responsible for either the untimeliness of
his appeal or the months of dithering before Khan withdrew and permitted
unconflicted attorneys to represent Perez.
There is further irony stemming from Khan’s abandonment of her
client. Perez did not receive notice of the judgment, so if he, not Khan, had
submitted the motion to reopen the time to file an appeal, he likely would
have been successful. See FED. R. APP. P. 4(a)(6). In fact, the district court
specifically noted that it would have granted Perez’s Rule 4(a)(6) motion. Yet
at the time, Khan was still purporting to act as Perez’s representative.
Supposedly represented by counsel, Perez had no way of knowing of the
district court’s judgment and, in fact, was specifically prohibited from
receiving notice under the relevant court rules. See S.D. TEX. LOCAL R. 83.3
(“All communications about an action will be sent to the attorney-in-charge
who is responsible for notifying associate counsel.”); S.D. TEX. LOCAL R. 83.4
(“Notices will be sent only to the address on file.”). Even if he had learned
about either the judgment or Khan’s unilateral decision not to pursue an
appeal, those same rules would have barred him from attempting to file a
notice of appeal pro se. Cf., e.g., United States v. Polidore, 690 F.3d 705, 721
n.19 (5th Cir. 2012) (refusing to consider defendant’s pro se motion because
he was represented by counsel (citing 5TH CIR. R. 28.6. (“Unless specifically
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directed by court order, pro se motions, briefs or correspondence will not be
filed if the party is represented by counsel.”))).
As the Court explained in Maples, “a client cannot be charged with the
acts or omissions of an attorney who has abandoned him. Nor can a client be
faulted for failing to act on his own behalf when he lacks reason to believe his
attorneys of record, in fact, are not representing him.” 132 S. Ct. 924; see also
Hutchinson v. Florida, 677 F.3d 1097, 1108-09 (11th Cir. 2012) (Barkett, J.,
concurring) (“A reasonable prisoner would have no cause to file his own
pleadings for the simple reason that it is assumed that it is his lawyer’s job to
do so.”). During the period of Khan’s deliberate silence and inaction, she was
not representing Perez, and yet Perez had no reason to believe that he was
not being represented. Although Khan did not move away as did the
attorneys in Maples, her functionality (or lack thereof) was as if she had.
Accordingly, Khan abandoned Perez such that he may not be charged with
Khan’s omissions in failing to timely appeal. See Maples, 132 S. Ct. at 924.
II.
No case from the Supreme Court, this circuit, or any other court
disturbs the conclusion that attorney abandonment constitutes the kind of
“extraordinary circumstance” envisioned by Rule 60(b)(6), permitting the
reentry of judgment and a new appeal. First, in Bowles v. Russell, the district
court denied habeas relief on September 9, 2003, and Bowles failed to file his
notice of appeal within thirty days. 551 U.S. at 207. Instead, on December
12, 2003, Bowles moved, pursuant to Rule 4(a)(6), to reopen the period during
which he could file his notice of appeal. Id. That rule permits a district court
to extend the time to file a notice of appeal to fourteen days from the day on
which the district court grants a motion to reopen; however, the rule is
conditioned on a showing that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d). FED. R. APP. P. 4(a)(6)(A); Bowles, 551
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U.S. at 207. Furthermore, although the district court granted the motion, it
“inexplicably gave Bowles 17 days[] . . . to file his notice of appeal.” Bowles,
551 U.S. at 207 (emphasis added). In other words, the district court exceeded
the plain scope of the allowance in Federal Rule of Appellate Procedure 4.
And finally, the Court ruled that Rule 4(a)(6)’s express provision barred
courts from creating equitable exceptions to that rule’s jurisdictional
requirements. Id. at 214. By contrast, there was no assertion of attorney
abandonment in Bowles nor is there an express analog in Rule 4 to Rule
60(b)(6)’s allowance for equitable relief under extraordinary circumstances.
See Fed. R. Civ. P. 60(b)(6); Crosby, 545 U.S. at 535. Therefore, Bowles is
distinguishable.
Second, both Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002), and
United States v. O’Neill, 709 F.2d 361, 372-73 (5th Cir. 1983), involved
attorney negligence, not attorney abandonment. For instance, the petitioner
in Dunn failed to timely appeal as a result of his attorneys’ negligence. 302
F.3d at 492. Because the time had expired for him to receive a Federal Rule
of Appellate Procedure 4(a)(5) extension based on excusable neglect, Dunn
attempted to invoke Rule 60(b)(1), which authorizes a district court to reopen
a judgment on the exact same basis—excusable neglect. In other words, he
sought to use Rule 60(b)(1) to circumvent the precise relief afforded Federal
Rule of Appellate Procedure 4(a)(5), and so we concluded that the Rule
60(b)(1) motion “squarely collide[d] with Rule 4(a)(5)” and therefore “must
fail.” Id. at 493 (internal quotation marks omitted). The Dunn court said
nothing about the extraordinary circumstances created when an attorney
abandons her client.
And in O’Neill, the federal government failed to timely file a notice of
appeal of several orders granting summary judgment to the defendants
because the government believed those orders were not final. See 709 F.2d at
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365.10 Thus, it was in this context that the court affirmed the district court’s
denial of a Rule 60(b)(1) motion, which asserted mistake as the cause of the
government’s default, because the requested relief “squarely collide[d]” with
Federal Rule of Appellate Procedure 4(a)(5) and was “being used only to
extend the time for appeal.” Id. at 373. Yet the government had been fully
aware of the orders from which it sought to appeal but failed to do so timely
because of an elementary misunderstanding, not because, thinking they were
represented by competent counsel, they were wholly unaware of the rulings.
The O’Neill court specifically admonished the government for failing to seek
clarification with respect to this misunderstanding despite ample opportunity
to do so. See id. at 374-75. Perez, by comparison, abandoned by his attorney,
could not have sought such a clarification. Rather, as the Maples Court
concluded, attorney abandonment constitutes an “extraordinary
circumstance” distinguishing Perez’s position from that of the government in
O’Neill. See 132 S. Ct. at 927.11
And finally, the various out-of-circuit precedents on which the majority
relies are distinguishable and unavailing in the face of Maples. One runs
counter to the majority’s conclusion, noting that a petitioner may rely on Rule
60(b) to extend the time for filing an appeal in extraordinary circumstances.
See Lacour v. Tulas City–Cnty. Jail, 517 F. App’x 617, 619 (10th Cir. 2013)
(unpublished). Several predate the Supreme Court’s decision in Maples. See
White v. Jones, 408 F. App’x 293, 293 (11th Cir. 2011) (unpublished); In re
Sealed Case (Bowles), 624 F.3d 482, 482 (D.C. Cir. 2010); Joyner v. United
States, Cr. No. 3:06-0016, 2011 WL 2437531, at *1 (D.S.C. June 17, 2011).
Several are unpublished, indicating that they were not meant to be
10
Certain counterclaims against the government remained outstanding, although the
district court had severed them. Id
11
Thus, O’Neil is consistent with the rule announced in Maples because the O’Neil
court acknowledged that Rule 60(b) relief could be afforded “in truly extraordinary cases.” 709
F.3d at 373
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precedential and further underscoring that they were not given the fuller
treatment that comes with most published cases. See Lacour, 517 F. App’x at
617; Cumberland Mut. Fire Ins. Co. v. Express Prods., Inc., Nos. 11-3919, 12-
2155, 11-3943, 12-2156, 2013 WL 3481687, at *1 (3d Cir. June 24, 2013)
(unpublished); Hall v. Scutt, 482 F. App’x 990, 990 (6th Cir. 2012)
(unpublished) (per curiam); White, 408 F. App’x at 293. All but one involve
attorney negligence, see Hall, 482 F. App’x at 990, or an allegation that the
judgment was never received, see Cumberland, 2013 WL 3481687, at *2; In re
Sealed Case, 624 F.3d at 482; Garrett v. Prelesnik, No. 2:09-CV-11076, 2012
WL 2342461, at *1 (E.D. Mich. May 4, 2012), both of which are precise
circumstances Federal Rule of Appellate Procedure 4 is designed to address.12
The exception is White, the only case cited by the majority that involved an
allegation of attorney abandonment, see White, 408 F. App’x at 296 (Wilson,
J., dissenting), yet that case is inapposite too. In White, the petitioner sought
a stay of execution, which the panel majority denied principally because he
had failed to act with the requisite diligence. See id. at 294-95 (majority
opinion). Although the White court noted a “serious question” regarding
whether a Rule 60(b) motion may be used to restart the filing period for a
notice of appeal, it specifically declined to decide on this basis, ruling instead
that there was no merit to White’s underlying § 2254 claims. See id. at 295-
96.
In sum, no case from the Supreme Court, this circuit, or any other court
provides that attorney abandonment does not constitute the kind of
extraordinary circumstances envisioned by Rule 60(b)(6), permitting the
reentry of judgment and a new appeal therefrom when a habeas petitioner is
abandoned. Because Khan abandoned Perez, the district court did not abuse
12
Joyner is slightly different, but nevertheless distinguishable. The petitioner in
Joyner alleged that he had timely mailed his notice of appeal to the district court but that the
court had never received it. See 2011 WL 2437531, at *1
27
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its discretion, and we may consider the merits of Perez’s COA application, a
question to which I now turn.
III.
A.
At trial, Perez testified that at the time of his arrest, his attorney had
instructed him to remain silent. On direct examination, the following
exchange occurred:
Q: And from that moment when [your attorney] told you that
to this [day] you’ve not had an opportunity over the last year,
based on your lawyers’ advice, to tell anyone what really
happened.
A: I have not said a word to anybody. It’s been the most
painful year of my life, not being able to say anything. Yes, I did
leave that house, but I did not kill those people.
During closing argument, the prosecutor stated that it took Perez “a year to
come up with” his story and further opined that “[w]hat he’s done is he’s
worked for a full year on making up a story to fit the evidence.” The trial
court overruled defense counsel’s Fifth Amendment objection to these
statements.
The Texas Court of Criminal Appeals concluded that there was no
constitutional error because “[t]he prosecutor’s remarks were merely a
summation of and reasonable deduction drawn from [Perez’s] testimony.”
The district court agreed, observing that Perez had “‘opened the door’ to the
prosecutor’s comments” and that the prosecutor’s comments spoke to Perez’s
credibility as a witness rather than his right not to testify.
B.
This is precisely the situation that the Supreme Court confronted in
Doyle v. Ohio, 426 U.S. 610 (1976). The Doyle defendants testified that they
had been framed. Id. at 612-13. On cross-examination, the prosecutor
questioned why the defendants had not presented this story initially, and the
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trial court overruled defense counsel’s objections on self-incrimination
grounds. Id. at 614. The Supreme Court, however, reversed, explaining that
“it would be fundamentally unfair and a deprivation of due process to allow
the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Id. at 618. The Court therefore held that “the
use for impeachment purposes of [a petitioner’s] silence at the time of arrest
and after receiving Miranda warnings, violate[s] the Due Process Clause of
the Fourteenth Amendment.” Id. at 619.
Perez persuasively explains that the state did just what the prosecution
sought to do in Doyle, namely use “the discrepancy between an exculpatory
story at trial and silence at the time of arrest’ to create ‘an inference that the
story was fabricated somewhere along the way’ in order to ‘fit within the
seams of the State’s case.” Id. at 616. Accordingly, Perez has made a strong
showing “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner [on
this issue] or [at least] that the issues presented were adequate to deserve
encouragement to proceed further,” see Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); see also 28 U.S.C. § 2253(c), entitling him to a COA.13
CONCLUSION
13
The district court’s reasoning to the contrary is unpersuasive. First, the district court
provided only a cursory dismissal of Doyle, citing a footnote that addressed circumstances that
are inapplicable in this case, namely when “a defendant . . . claims to have told the police the
same version [of an exculpatory story told at trial] upon arrest.” See 426 U.S. at 619 n.11.
Second, the district court’s citations to Portuondo v. Agard, 529 U.S. 61 (2000), and United
States v. Robinson, 485 U.S. 25 (1988), are misplaced because both involve distinguishable
circumstances. For instance, Portuondo permits a prosecutor to draw the jury’s attention to
the fact that a testifying defendant does so after every other witness and therefore has an
opportunity to tailor his testimony accordingly, 529 U.S. at 73, but that is not what the
prosecutor did here. And in Robinson, the Supreme Court permitted prosecutors to “fairly
respond[] to an argument of the defendant by adverting to [his post-arrest] silence.” 485 U.S.
at 34. However, Robinson not only refused to testify at trial but also sought to argue that the
prosecution was to blame for his failure to take the stand. Id. at 28. Perez did no such thing,
so there was no argument to which the prosecution was entitled to respond under Robinson
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Khan abandoned Perez when, on learning of the district court’s
judgment but without consulting her client or informing anyone, she made
the deliberate and unilateral decision to not inform her client of his right to
appeal and to not file a notice of appeal, thus barring his opportunity to
pursue a likely successful COA application. The majority’s cramped
interpretation to the contrary holds Perez responsible for Khan’s failure,
despite being wholly abandoned, and saddles him with a draconian sanction,
namely depriving him of a crucial stage of federal habeas review—appellate
consideration. Further, today’s decision does little to deter future misconduct
by counsel such as Khan’s in abandoning death-row clients at a most crucial
stage of their proceedings.
30