Andrew MacKey v. Thomas Hoffman

This Court has jurisdiction pursuant to 28 U.S.C. § 2253 over this appeal, arising out of a habeas corpus proceeding under § 2254 in which a certificate of appealability has been granted. We review motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) under an abuse of discretion standard. Wilson v. City of San Jose, 111 F.3d 688, 691 (9th Cir.1997).

As discussed herein, we hold that a district court may grant an incarcerated habeas petitioner relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) if his attorney’s abandonment causes him to fail to timely file a notice of appeal.

I. BACKGROUND

In 2004, Petitioner Andrew Mackey (“Mackey”) was convicted of attempted murder and other crimes in the San Francisco County Superior Court. Mackey was sentenced to a term of life with the possibility of parole plus 25 years to life. Retained attorney LeRue Grim (“Grim”) represented Mackey in post-trial proceedings, including a motion for new trial and direct appeal. Grim further represented Mackey in state post-conviction proceedings that concluded with the California Supreme Court’s denial of a petition for review and a petition…