Trevino

specially concurring.

I agree with the majority’s assumption that the district court correctly treated Trevino’s February 5, 2004 filing as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), and I agree that we should not affirm the denial of that motion. A review of the procedural posture of this case, however, leads me to conclude that we should refrain from deciding whether the district court abused its discretion in deciding the merits of the Rule 60(b)(6) motion. Instead, I would order a remand to allow the district judge to reconsider her May 21, 2004 ruling in light of the subsequently submitted declaration of petitioner’s mother.

This court reviews a district court’s denial of a Rule 60(b) motion for an abuse of discretion and “we will reverse only upon a dear showing of abuse of discretion.” Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989) (internal quotation marks omitted). I very much doubt that the district judge abused her discretion in this case on the record before her when she issued her decision.

However, the district court did not have before her at that time the most probing evidence supporting the petitioner’s Rule 60(b)(6)…

MEMORANDUM *

Petitioner properly moved to withdraw his unexhausted claim from his pro se federal habeas petition, see Szeto v. Rush-en, 709 F.2d 1340, 1341 (9th Cir.1983), but the magistrate judge never acted on the motion, or even acknowledged it. Instead, the district court dismissed his petition as mixed. Petitioner then secured counsel and moved for reconsideration, but the district court denied relief and instructed him that “[d]ocuments filed by petitioner since the closing date will be disregarded and no orders will issue in response to future filings.” Petitioner reasonably believed that this order barred him from filing a notice of appeal or a fully-exhausted amended petition.

Despite efforts by petitioner’s family to spur counsel to action, counsel allowed the AEDPA statute of limitations period to run, frittered away five years without taking any action on petitioner’s behalf and withdrew as petitioner’s attorney. Petitioner then secured a second attorney, who did nothing for approximately two additional years.

The district court’s failure to respond to petitioner’s filings, its misleading command not to file any additional pleadings, the incompetence of petitioner’s…