Robert Charles Towery v Charles Ryan

Robert Towery was convicted of murder and sentenced to death in 1992. After pursuing direct review and seeking post-conviction relief in state court, he filed a pro se habeas petition in federal district court. The district court appointed counsel, who filed an amended federal habeas petition raising eight substantive claims of constitutional error as well as numerous distinct allegations of counsel ineffectiveness. Counsel did not, however, include Towery’s fully exhausted Eddings-Tennard claim in the amended petition. See Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); Tennard v. Dretke, 542 U.S. 274 , 124 S.Ct. 2562 , 159 L.Ed.2d 384 (2004). The district court denied the petition, and we affirmed. See Towery v. Schriro (Towery II), 641 F.3d 300 (9th Cir.2010), cert. denied, — U.S. -, 132 S.Ct. 159 , 181 L.Ed.2d 74 (2011).

Towery subsequently filed a motion for relief from judgment seeking the opportunity to litigate the Eddings-Tennard issue as a new claim. He argued that he should be permitted to pursue that claim, notwithstanding the statutory bar on second or successive habeas petitions, because his counsel had abandoned him by failing to…