FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW MACKEY, 

Petitioner-Appellant,

No. 11-15115

v.

D.C. No.

THOMAS G. HOFFMAN; DAVID  3:07-cv-04189-SI

RUNNELS,

Respondents-Appellees. OPINION



Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

February 15, 2012—San Francisco, California

Filed June 25, 2012

Before: Arthur L. Alarcón and Barry G. Silverman,

Circuit Judges, and Marvin J. Garbis, Senior District Judge.*

Opinion by Judge Garbis

*The Honorable Marvin J. Garbis, Senior District Judge for the U.S.

District Court for Maryland, sitting by designation. 

7517
COUNSEL

Randall Riccardo (argued) (Mill Valley, California), Kent A.

Russell (San Francisco, California) of Russell & Russell, and

LeRue James Grim (San Francisco, California) for the

petitioner-appellant.

Christopher Joseph Wei (argued), Office of the California

Attorney General (San Francisco, California), for the

respondents-appellees.

OPINION

GARBIS, District Judge:

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).

MACKEY v. HOFFMAN 7519
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 postconviction proceedings that concluded with the California

Supreme Court’s denial of a petition for review and a petition

for writ of habeas corpus in August 2006.

In August 2007, Grim filed a timely petition pursuant to 28

U.S.C. § 2254 in the United States District Court for the

Northern District of California, asserting that Mackey had

been denied the effective assistance of counsel. After receiving Mackey’s petition, in August 2007 the district court issued

a routine order directing Respondent to show cause why the

writ of habeas corpus should not be granted. Respondent filed

its response in February 2008. Grim did not file a traverse by

the March 2008 due date. 

In June 2008, Grim wrote Mackey a letter stating:

Sorry about not writing. I know it means a lot to you.

Your case is before the federal court in San Francisco. The state attorney general has filed his

response and we are awaiting a trial date. I expect

you will be brought to San Francisco for the trial. 

7520 MACKEY v. HOFFMAN
Please write your parents and ask them to pay something on the legal bill. 

Thanks.

No hearing was ever scheduled and Grim did nothing further. On July 13, 2009, the district court denied the petition

on the merits and entered judgment against Mackey. Grim,

although receiving prompt1 notification of the entry of judgment, neither notified Mackey of the entry of judgment nor

filed a Notice of Appeal.2

Eight months after the entry of judgment, in March 2010,

Mackey wrote a letter to the district court stating that he was

“unaware of the current status” of his case. The district court

clerk responded by providing a copy of the docket sheet to

Mackey that reflected the denial of the petition and the entry

of judgment on July 13, 2009. In response, Mackey wrote a

second letter to the district court, expressing concern about his

appellate rights, stating, “my lawyer has been telling me for

months that I have been granted and evidentuary [sic]. He

tells me I have a court date comeing [sic].” The district court

ordered Grim to respond to Mackey’s letters. 

In April 2010, Grim filed a signed declaration with the

court stating that Mackey had retained him for the state postconviction proceedings, and that Mackey’s parents had only

partially paid Grim for those services. Grim said that he prepared and filed Mackey’s § 2254 petition pro bono, and that

in September 2007, he “fully informed” Mackey and his family that he “couldn’t do any more, beyond preparing and filing

the [§ 2254 petition], for nothing.” Grim further stated that

during the next two and a half years, Mackey and his friends

called Grim repeatedly, and Grim repeatedly told them that

1The notification was sent by email on July 13, 2009. 

2Federal Rule of Appellate Procedure 4(a) requires the filing of a Notice

of Appeal within 30 days of a judgment from which an appeal is taken.

MACKEY v. HOFFMAN 7521
Mackey’s parents “had not made any arrangements with [him]

or any other attorney to handle the federal habeas and they

should call his parents and urge them to do something.” Grim

further stated that he left numerous voicemail messages for

the parents, urging them to “make arrangements.” He notes

that, during this time, he “had difficulty making [Mackey]

understand what the procedure was and his need to have his

parents take care of business.” Grim did not state to the district court that he informed Mackey when his petition was

denied and admitted that after filing an amended § 2254 petition within a week of filing the original petition, he “did nothing more on the case in court.” 

In response to Mackey’s statement to the district court, that

Grim had told Mackey that a court date had been set, Grim

said:

As to Petitioner Andrew Mackey’s letter, stating I

told him a court date had been set, he misunderstood

what I said. I told him about the order to show cause

to the Attorney General, about the response, that

papers needed to be filed in [sic] his behalf, and that

there should eventually be a hearing, that there is

much preparation to be done before that happens,

that eventually the court will set the date, that he

needed have [sic] his parents make arrangements for

a lawyer to handle the matter and get moving on it.

Mackey responded to this by providing the district court

with the above-quoted June 2008 letter from Grim stating “we

are awaiting a trial date.” Mackey told the district court that

the June 2008 letter was “one of the first times that LeRue

Grim stated we are awaiting a trial date on and evidentuary

[sic] hearing,” and that Grim “has lied to me continuously

about and evidentuary [sic] hearing.” 

Thereafter, Grim filed an additional declaration with the

district court, in which he reiterates that he was retained by

7522 MACKEY v. HOFFMAN
Mackey’s parents, who then stopped paying him and apparently abandoned their son’s legal defense. Grim concludes:

The failure of his parents to help him was not petitioner’s fault. It was not my fault. It may not have

been their fault. It is obvious the parents are not

going to put up any money to help Mr. Mackey in

his case before this Court. Petitioner Andrew

Mackey has been deprived of counsel in this habeas

corpus proceeding through no fault of his own. Fairness suggests the Court should vacate to order [sic]

dismissing the petition and reinstate the habeas corpus proceeding and appoint counsel to represent

petitioner.

The district court conducted a telephonic case management

conference in June 2010. In the course of the conference, the

district court stated: 

My concern, however, is that based on what I think

was a failure of communication, Mr. Mackey was

not aware of that fact [that his petition had been

denied] and so, therefore, any kind of appeal deadline for appealing from my ruling passed without his

opportunity to consider it. . . . [M]y plan is this: My

plan is to either reissue the order or — if I still can

do this . . . issue an extension of time to file an

appeal.

The district court noted that Mackey did not have a constitutional right to counsel on his habeas position, but asked

Grim to undertake to file an appeal on Mackey’s behalf once

the procedural barriers were lifted. Grim agreed to do so, and

orally made a motion seeking to have the district court vacate

the July 2009 judgment and reopen the case. 

In a December 2010 order, the district court denied the

motion to vacate. The district court stated that, upon further

MACKEY v. HOFFMAN 7523
research of the procedural issue, citing In re Stein, 197 F.3d

421 (9th Cir. 1999), it had determined that it lacked discretion

to vacate the judgment pursuant to Federal Rule of Civil Procedure 60(b) and enter a new judgment to afford Mackey the

opportunity to appeal. The court also concluded that Federal

Rule of Appellate Procedure 4(a)(6) prevented it from construing Mackey’s letter as a motion for an extension of time

to file a notice of appeal. The district court “emphasize[d] that

if it possessed the discretion to vacate and reenter the judgment in order to allow petitioner the opportunity to appeal, the

Court would do so.” 

On December 29, 2010, Mackey, by Kent Russell, Esquire,3

filed a notice of appeal from the denial of the motion and

sought a certificate of appealability on the issue of whether

the district court had erred in denying his request to vacate the

July 2009 judgment to allow him the opportunity to appeal.

Mackey contended that his failure to timely appeal “resulted

from his attorney’s [Grim’s] gross negligence and failure to

communicate, which deprived [him] of notice and the opportunity to be heard.” In January 2011, the district court issued

a certificate of appealability. 

II. DISCUSSION

We address herein the district court’s ability to grant

Mackey relief from the judgment issued July 13, 2009 pursuant to Rule 60(b)(6).4

[1] Rule 60(b) of the Federal Rules of Civil Procedure provides that a district court may relieve a party from a final judg3Whom Mackey had retained as “associate counsel” in September 2010.

Grim has remained an attorney of record for Mackey through the instant

appeal. 

4Because we hold that Mackey may obtain relief pursuant to Rule

60(b)(6), we do not address his alternative “independent action in equity”

theory based upon Grim’s alleged fraud. 

7524 MACKEY v. HOFFMAN
ment,5

 order, or proceeding for several enumerated grounds6

as well as “any other reason that justifies relief.” Fed. R. Civ.

P. 60(b)(6). 

The Supreme Court first addressed Rule 60(b)(6) in Klapprott v. United States, 335 U.S. 601 (1949), stating, “[i]n simple English, the language of the ’other reason’ clause, for all

reasons except the five particularly specified, vests power in

courts adequate to enable them to vacate judgments whenever

such action is appropriate to accomplish justice.” 335 U.S. at

614-15. Thereafter, in Ackermann v. United States, 340 U.S.

193 (1950), the Supreme Court somewhat narrowed the scope

of the rule, holding that it would not provide relief for a “free,

calculated, deliberate choice[ ]” not to appeal, where

“[n]either the circumstances of petitioner nor his excuse for

not appealing is so extraordinary as to bring him within Klapprott or Rule 60(b)(6).” 340 U.S. at 198, 202. This Court has

held that “[i]n order to bring himself within the limited area

of Rule 60(b)(6) a petitioner is required to establish the existence of extraordinary circumstances which prevented or rendered him unable to prosecute an appeal.” Martella v. Marine

Cooks & Stewards Union, Seafarers Int’l Union of N. Am.,

AFL-CIO, 448 F.2d 729, 730 (9th Cir. 1971). 

[2] This Court has held that gross negligence by counsel

amounting to “virtual[] abandon[ment]” can be an “extraordinary circumstance” that justifies vacating a default judgment

pursuant to Rule 60(b)(6). See Cmty. Dental Servs. v. Tani,

282 F.3d 1164, 1169-71 (9th Cir. 2002) (holding that client

has shown “extraordinary circumstances” meriting relief from

default judgment where attorney “fail[ed] to proceed with his

client’s defense despite court orders to do so” and “deliber5

“A motion under Rule 60(b) must be made within a reasonable time—

and for reasons (1), (2), and (3) no more than a year after the entry of the

judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).

6

Including mistake, excusable neglect, newly discovered evidence, and

fraud. See Fed. R. Civ. P. 60(b)(1)-(5). 

MACKEY v. HOFFMAN 7525
ately deceived Tani about the services he was supposed to be

performing” thus “depriving him of the opportunity to take

action to preserve his rights”). Relief in such a case 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. at 1168, 1171 (internal

quotation marks omitted). 

In Latshaw v. Trainer Wortham & Co., 452 F.3d 1097 (9th

Cir. 2006), this Court stated that our decision in Tani was

explicitly premised upon the default judgment context of the

case and declined to extend the holding to the context of Rule

68 offers of judgment. 452 F.3d at 1103-04. Nevertheless, in

Lal v. California, 610 F.3d 518 (9th Cir. 2010), we held that

relief from judgment under Rule 60(b)(6) was warranted for

gross negligence of counsel in failing to prosecute. 610 F.3d

at 524.

In the instant case, the district court held that, in light of our

decision in In re Stein, 197 F.3d 421 (9th Cir. 1999), it lacked

discretion to vacate the judgment pursuant to Federal Rule of

Civil Procedure 60(b) and enter a new judgment to afford

Mackey the opportunity to appeal. 

In In re Stein, judgment was entered against an attorney

and a law firm that were parties in the case and that had filed

timely post-trial motions that were denied. 197 F.3d at 423.

The attorney and law firm failed to file a timely notice of

appeal because they had not received notice of the entry of the

orders from which they sought to appeal. Id. They sought

relief pursuant to Rule 60(b)(6) or by virtue of an extension

of time to appeal. Id.

This Court denied relief, stating that “Rule 4(a) [of the Federal Rules of Appellate Procedure] and Rule 77(d) [of the

Federal Rules of Civil Procedure] now form a tessellated

scheme; they leave no gaps for Rule 60(b) to fill.” Id. at 426.

7526 MACKEY v. HOFFMAN
Rule 77(d)(1) provides that the district court clerk shall

immediately serve notice of an order or judgment on each

party. However, Rule 77(d)(2) states “[l]ack of notice of the

entry does not affect the time for appeal or relieve—or authorize the court to relieve—a party for failing to appeal within

the time allowed, except as allowed by Federal Rule of

Appellate Procedure 4(a).” Rule 4(a) provides that a district

court may reopen the time to file an appeal based on a failure

to receive notice under Rule 77(d) only if the motion is filed

within the earlier of 14 days after the movant received notice

or 180 days after the entry of the judgment or order appealed

from.7 Since the motion in In re Stein was filed outside the

Rule 4(a) 180-day time period, Rule 60(b)(6) could not be

used to cure the problem of lack of Rule 77(d) notice. 

Unlike the appellants in In re Stein, Mackey is not seeking

to utilize Rule 60(b)(6) to cure a Rule 77(d) “lack of notice”

problem. Indeed, Rule 77(d) notice was given to Mackey’s

counsel of record. Rather, Mackey seeks to utilize Rule

60(b)(6) to cure the problem caused by his being misled and

abandoned by his counsel of record. See Tani, 282 F.3d at

1171. 

7The Rule states: 

The district court may reopen the time to file an appeal for a

period of 14 days after the date when its order to reopen is

entered, but only if all the following conditions are satisfied: 

(A) 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 sought to be

appealed within 21 days after entry; 

(B) the motion is filed within 180 days after the judgment

or order is entered or within 14 days after the moving

party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and 

(C) the court finds that no party would be prejudiced. 

Fed. R. App. P. 4(a)(6). 

MACKEY v. HOFFMAN 7527
In Maples v. Thomas, 565 U.S. ___, 132 S. Ct. 912 (2012),

an inmate failed to timely appeal the denial of his state postconviction petition in state court because, unbeknownst to

him, his volunteer attorneys had abandoned him after filing

the petition. 132 S. Ct. at 926. Therefore, he was never notified of the denial, until the time to appeal had lapsed. Id. at

919-20. After an Alabama Assistant Attorney General sent a

letter directly to Maples informing him of the missed deadline, Maples moved the trial court to reissue its order, thereby

restarting the appeal period. Id. at 920. The motion was

denied and the Alabama Supreme Court affirmed. Id. at 920-

21. Thereafter, Maples sought federal habeas relief. Id. at 921.

The district court and the court of appeals denied his request

based on the procedural default in state court—that Maples

had failed to timely appeal the state trial court’s denial of his

petition for postconviction relief. Id.

The Supreme Court held that Maples’ abandonment by his

attorneys constituted an “extraordinary circumstance[] beyond

his control,” that justified lifting the state procedural bar to his

federal petition. Id. at 924, 927. The Court noted that,

although an attorney is normally the prisoner’s agent, and the

principal typically bears the risk of negligent conduct on the

part of his agent under well-settled principles of agency law,

“[a] markedly different situation is presented, however, when

an attorney abandons his client without notice, and thereby

occasions the default.” Id. at 922. “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.” Id. at 924. In Maples’ case, because his attorneys had

failed to withdraw as attorneys of record when they had effectively abandoned the case, they deprived Maples of his right

to personally receive notice without any warning to him that

he “had better fend for himself.” Id. at 925-27.

In the instant case, Grim failed to observe the district

court’s rule requiring him to seek permission to withdraw as

7528 MACKEY v. HOFFMAN
attorney of record. See N.D. Cal. Civ. R. 11-5 (“Counsel may

not withdraw from an action until relieved by order of Court

after written notice has been given reasonably in advance to

the client and to all other parties who have appeared in the

case.”). 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. See Maples, 132 S. Ct. at 924-25. As a result,

Mackey, an indigent prisoner who had been misled by his

attorney to believe that he was awaiting a trial or hearing date

and believed that his attorney was continuing to represent

him, was wholly unaware that the district court had denied his

§ 2254 petition.

[3] “A federal habeas petitioner—who as such does not

have a Sixth Amendment right to counsel—is ordinarily

bound by his attorney’s negligence, because the attorney and

the client have an agency relationship under which the principal is bound by the actions of the agent.” Towery v. Ryan, 673

F.3d 933, 941 (9th Cir. 2012), cert. denied, 132 S. Ct. 1738

(2012). However, 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). See

Maples, 132 S. Ct. at 924; Tani, 282 F.3d at 1170; Lal, 610

F.3d at 524. 

[4] Granting relief to Mackey is not barred by Bowles v.

Russell, 551 U.S. 205 (2007), which held that the time periods

prescribed by Rule 4(a)(6) are “mandatory and jurisdictional.”

551 U.S. at 209 (internal quotation marks omitted) (holding

that appellate court lacked jurisdiction to hear appeal from

denial of habeas petition where district court had erroneously

granted the petitioner a 17-day period to file his notice of

appeal, rather than the 14-day period prescribed by Rule

4(a)(6), and the petitioner had filed his appeal on the sixteenth

day). Mackey is not receiving relief pursuant to Rule 4(a)(6).

MACKEY v. HOFFMAN 7529
The district court correctly noted that it could not consider

Mackey’s March 2010 letter as a motion to extend the time

to file a notice of appeal because it was made outside Rule

4(a)(6)’s 180-day limitations period. Mackey is 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. 

Mackey contends that he has demonstrated that extraordinary circumstances—here, abandonment by counsel of record

—prevented him from being notified of the order denying his

federal habeas petition. If he has done so, justice requires that

relief be granted so that he may pursue an appeal. See Klapprott, 335 U.S. at 614-15.

[5] The district court, in its order denying Mackey’s

request to vacate the judgment, stated that “if it possessed the

discretion to vacate and reenter the judgment in order to allow

petitioner the opportunity to appeal, the Court would do so.”

We hold that the district court would possess such discretion

if it were to find that Grim effectively abandoned Mackey,

causing Mackey to fail to file a timely notice of appeal.

Therefore we remand this case with instructions to the district

court to make a finding as to whether Grim’s action and/or

inaction constituted abandonment and, if so, whether to exercise its discretion to grant the relief sought by Mackey. 

Conclusion

We reverse and remand with instructions for the district

court to proceed in a manner consistent with this opinion.

REVERSED AND REMANDED.

7530 MACKEY v. HOFFMAN