FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK D. FOLEY,

Petitioner-Appellant,

v.

MARTIN BITER, Warden,

Respondent-Appellee.

No. 12-17724

D.C. No.

2:01-cv-00714-MCE-JFM

OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted

June 8, 2015—San Francisco, California

Filed July 14, 2015

Before: Mary M. Schroeder, Dorothy W. Nelson,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 FOLEY V. BITER

SUMMARY*

Habeas Corpus

The panel reversed the district court’s order denyingMark

Foley’s motion pursuant to Fed. R. Civ. P. 60(b) for relief

from the 2004 denial of his habeas corpus petition in a case

in which Foley’s counsel never informed Foley that the court

denied his petition and Foley only discovered that his petition

was denied six years later when he sent a letter to the court

inquiring about its status.

The panel held (1) that the district court erred by finding

that Foley was not abandoned by his attorney, (2) that the

abandonment directly prevented Foley from timely appealing

the denial of his habeas petition, and (3) that the motion for

relief was timely because once Foley learned his petition had

been denied, he made reasonable efforts to determine whether

relief was available and how to seek such relief. The panel

remanded for further proceedings.

COUNSEL

Heather Williams, Federal Defender, Carolyn M. Wiggin

(argued), Assistant Federal Public Defender, Sacramento,

California, for Petitioner-Appellant.

Kamala Harris, Attorney General, Michael Farrell, Senior

Assistant Attorney General, Eric Christoffersen, Supervising

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FOLEY V. BITER 3

Deputy Attorney General, Mark Johnson and Sally Espinoza

(argued), Deputy Attorneys General, Office of the California

Attorney General, Sacramento, California, for RespondentAppellee.

OPINION

CHRISTEN, Circuit Judge:

Mark Foley appeals the district court’s order denying his

motion for relief from judgment pursuant to Federal Rule of

Civil Procedure 60(b)(6). Foley, who was convicted of

murder in California state court, properly filed a petition for

habeas corpus in federal district court in 2001. The district

court denied his petition in 2004. Foley’s counsel, Mark

Greenberg, forgot that he represented Foley and never

informed Foley that the court denied his petition. Foley only

discovered that his petition was denied six years later when

he sent a letter to the court inquiring about its status. Because

Greenberg’s abandonment of Foley directly prevented Foley

from timely appealing the district court’s denial of his habeas

petition, and because Foleymade reasonable efforts to pursue

his claims, we reverse the district court’s order.

BACKGROUND

For his involvement in a drug-related shooting death, a

California jury found Mark Foley guilty of first degree

murder, conspiracy to commit assault with a firearm,

conspiracyto commit extortion, kidnapping for extortion, and

kidnapping. The court sentenced Foley to life in prison

without the possibility of parole with a four-year

enhancement for use of a firearm, plus a consecutive,
4 FOLEY V. BITER

determinative sentence of 20 years and eight months. The

California Court of Appeal affirmed Foley’s conviction, and

the California Supreme Court summarily denied Foley’s

petition for review.

Foley filed a petition for a writ of habeas corpus in federal

district court on April 12, 2001. On December 21, 2002,

while the petition was pending, attorney Greenberg sent a

letter to Foley stating: “I know it’s been a long time. The

federal courts are super slow. Nothing to do but wait. I hope

you have a nice holiday under the circumstances.” This was

apparently the last communication from Greenberg to Foley. 

On July 1, 2004, a magistrate judge issued findings and a

recommendation to deny Foley’s petition. The district court

adopted the magistrate’s findings and recommendation in full

and denied Foley’s petition on August 18, 2004. Greenberg

did not inform Foley that the court denied his petition, nor did

he respond to Foley’s subsequent letters.

On February 12, 2010, Foley wrote a letter to the district

court inquiring about the status of his habeas petition. He

stated: “It’s been 9 years and I’m deeply concerned

something’s wrong. Will you ‘please’ [sic] let me know

what’s up.” The clerk informed Foley that the district court

denied his petition on August 18, 2004. Foley sent another

letter to the court on March 4, 2010, inquiring why he was not

notified that his petition was denied.

In response to Foley’s March 4, 2010 letter, the district

court ordered the clerk to send a copy of the letter to

Greenberg and serve a copy of the order on Foley. Greenberg

received the copy of Foley’s letter sent by the court, but

apparently did not communicate with Foley. On August 2,

2010, Foley again wrote to the court, explaining that
FOLEY V. BITER 5

Greenberg still had not contacted him to either notify him of

the denial or explain the failure to notify him. Foley

requested that the court issue an order requiring Greenberg to

(1) “show proof that he notified [Foley] of the denial in a

timely manner”; (2) show “good cause as to why he never

notified [Foley]”; and (3) send Foley copies of all filings

involved in his case. On January 27, 2011, the district court

ordered Greenberg to respond to Foley’s August 2, 2010

letter within thirty days.

Greenberg filed a declaration on February 25, 2011. He

averred that he did not inform Foley that the district court

denied his petition, and speculated that this failure may have

occurred because he was working on two capital cases that

“distracted [him] from [his] usually heavy case load of

appointed state court appeals” around the time the district

court entered its order denying Foley’s petition. Greenberg

also averred that he had no memory of Foley’s federal habeas

action, and though he recalled continuing to receive letters

from Foley, he ignored Foley’s correspondence because he

considered Foley to be a former client.

On the same day he filed his declaration, Greenberg sent

the following letter to Foley:

I am writing this letter in accord with the

Court order of January 27, 2011 setting forth

a response to your inquiries. I thought it best

to do it in the form of a declaration. I am

filing both the letter and the declaration with

the Court. I hope this helps. However, do not

expect the Court to act on its own without any

further motion or request from you. If I can

help further, let me know.
6 FOLEY V. BITER

On July 10, 2011, Foley sent another letter to the court. 

The letter stated:

First and foremost I would like to thank you

for all your help in guiding me through this

legal mess that I know nothing about. I’ve

tried unsuccessfully to obtain counsel to help

me take my case to get back into the courts,

mostly due to lack of funds. . . .

Based on the declaration submitted to the

court by my lawyer of record, Mark D.

Greenberg . . . [,] I would like to respectfully

request that the court allow me back into the

courts to continue my appeal (rights) process

afforded to me under the United States

Constitution, specifically the 14th

Amendment. I’m not sure what all is needed

so I’ve enclosed everything I have. . . .

The court issued an order on July 2, 2012, construing

Foley’s letter as a motion for relief from judgment pursuant

to Federal Rule of Civil Procedure 60(b)(6). On September

12, 2012, the magistrate judge issued findings and a

recommendation that the district court deny Foley’s motion. 

The magistrate judge concluded that Greenberg’s failure to

notify Foley of the denial of his habeas petition did not rise to

the level of attorney abandonment required for relief from

judgment under Rule 60(b)(6), and that Foley’s inability to

communicate with Greenberg after Foley learned that his

petition was denied did not prevent him from seeking relief

from judgment. The district court adopted the magistrate’s

findings and recommendation and denied Foley’s motion for

relief from judgment.
FOLEY V. BITER 7

STANDARD OF REVIEW

We review a district court’s denial of a motion for relief

from judgment pursuant to Rule 60(b) for abuse of discretion. 

Pizzuto v. Ramirez, 783 F.3d 1171, 1175 (9th Cir. 2015)

(citing Towery v. Ryan, 673 F.3d 933, 940 (9th Cir. 2012)). 

We must affirm the district court’s judgment “unless (1) we

have ‘a definite and firm conviction that the district court

committed a clear error of judgment in the conclusion it

reached upon weighing the relevant factors,’ (2) the district

court applied the wrong law, or (3) the district court rested its

decision on clearly erroneous findings of fact.” Delay v.

Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007) (quoting SEC

v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)).

DISCUSSION

I. The district court erred by finding that Foley was not

abandoned by his attorney.

Rule 60(b)(6) “vests power in courts adequate to enable

them to vacate judgments wheneversuch action is appropriate

to accomplish justice.” Klapprott v. United States, 335 U.S.

601, 614–15 (1949). We apply this provision sparingly: “[a]

party is entitled to relief under Rule 60(b)(6) where

‘extraordinary circumstances prevented him from taking

timely action to prevent or correct an erroneous judgment.’” 

Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004)

(alteration and citations omitted). Because a federal habeas

petitioner has no Sixth Amendment right to an attorney and

the attorney is the petitioner’s agent, a habeas petitioner is

“ordinarily bound by his attorney’s negligence.” Towery,

673 F.3d at 941. But the Supreme Court made clear in

Maples v. Thomas that “when an attorney abandons his client
8 FOLEY V. BITER

without notice,” the attorney has “severed the principal-agent

relationship [and] no longer acts, or fails to act, as the client’s

representative.” 132 S. Ct. 912, 922–23 (2012). Thus, a

petitioner may be excused from the consequences of his

attorney’s conduct where that conduct effectively severs the

principal-agent relationship. See id. at 923 (“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.”

(quoting Holland v. Florida, 560 U.S. 631, 659 (2010) (Alito,

J., concurring))).

In Mackey v. Hoffman, a panel of our court relied on

Maplesto hold that attorney abandonment may constitute the

extraordinary circumstances necessary to justify relief under

Rule 60(b)(6) where a petitioner fails to timely appeal the

district court’s denial of a habeas petition. 682 F.3d 1247,

1252–53 (9th Cir. 2012). In that case, a habeas petitioner’s

attorney sent him a letter informing him that his case was

before the federal court and expected that a trial date would

be set, but then failed to do anything further on the case and

did not inform the petitioner when the district court denied

the petition. Id. at 1248–49. The petitioner did not learn that

his petition had been denied until after expiration of the time

allowed to pursue an appeal. Id. at 1249. We concluded that

the district court erred by failing to consider whether the

petitioner was abandoned by his attorney, explaining 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
FOLEY V. BITER 9

may grant relief pursuant to Rule 60(b)(6).”1Id. at 1253.

(citing Maples, 132 S. Ct. at 924). Subsequently, in Gibbs v.

Legrand, we held that “[f]ailure to inform a client that his

case has been decided, particularly where that decision

implicates the client’s ability to bring further proceedings and

the attorney has committed himself to informing his client of

such a development, constitutes attorney abandonment.” 

767 F.3d 879, 886 (9th Cir. 2014) (emphasis in original).

In this case, the state argues that “[a]s a threshold matter,

[Foley] fails to establish that counsel did in fact fail to notify

him of the denial of his petition for writ of habeas corpus.” 

We disagree. Greenberg forthrightly declared that “[t]hrough

inadvertence and neglect, I failed to inform Mr. Foley of this

1 On remand, the district court concluded that the attorney’s conduct

constituted abandonment:

Mr. Grim did not keep petitioner apprised of the status

of this case, and most importantly, he failed to inform

petitioner that the petition had been denied and that

judgment had been entered. Petitioner did not learn of

the denial until the time for appeal had lapsed, and this

abandonment by his counsel was an “extraordinary

circumstance beyond his control.” Maples, 132 S. Ct.

at 924 (holding that an inmate’s abandonment by his

attorneys constituted an “extraordinary circumstance

beyond his control” that justified lifting the state

procedural bar to his federal petition). As in Maples,

Mr. Grim failed to observe this Court’s rule requiring

him to seek permission to withdraw as attorney of

record, see N.D. Cal. Civ. R. 11–5, thereby depriving

petitioner of the opportunity to proceed pro se and to

receive notifications from the Court.

Mackey v. Hoffman, No. C 07-4189 SI, 2012 WL 4753512 at *1 (N.D.

Cal. Oct. 4, 2012).
10 FOLEY V. BITER

result at any time, and I failed to take any measures to

preserve his appellate rights and opportunities.” There is no

reasonable basis on which to question the truth of

Greenberg’s statement.

Foley argues that the district court’s conclusion that he

was not abandoned by Greenberg was an error of law. But

abandonment is not a question of law. Determining whether

a petitioner has been abandoned by counsel requires the

district court to make a factual finding, see Mackey, 682 F.3d

at 1254 (remanding with instructions for district court to

consider whether to make an abandonment finding), which

we review for clear error. Adams v. United States, 3 F.3d

1254, 1257 (9th Cir. 1993). Thus, whether the district court

abused its discretion in this case turns on whether “the district

court rested its decision on clearly erroneous findings of

fact.” Delay, 475 F.3d at 1043.

The district court clearly erred by finding that Foley was

not abandoned by counsel. Greenberg failed to notify Foley

that his petition had been denied, and he did not move to

withdraw as counsel so that Foley could be served directly. 

Foley apparently believed Greenberg was representing him

and, based on Greenberg’s advice, expected a long delay

before receiving a decision from the district court. Under

these circumstances, Foley was effectively deprived of the

opportunity to appeal the district court’s denial of his habeas

petition. We conclude that Greenberg’s failure to

communicate with Foley, which included discarding Foley’s

unanswered letters under the mistaken impression that Foley

was no longer his client, severed the principal-agent

relationship between Foley and Greenberg. This failure to

communicate, to preserve Foley’s ability to appeal, and to

withdraw from the case clearlyconstituted abandonment. See
FOLEY V. BITER 11

Maples, 132 S. Ct. at 924–26 (holding that attorneys who left

their law firm without notifying the petitioner they could not

continue to represent him, withdrawing, or making

arrangements for his continued representation abandoned the

petitioner); Gibbs, 767 F.3d at 886 (holding that counsel’s

failure to notify petitioner of state supreme court’s denial of

his claimfor post-conviction relief “constituted abandonment,

and thereby created extraordinary circumstances sufficient to

justify equitable tolling” of the federal habeas filing

deadline).

II. Foley’s motion for relief was timely.

The state argues that Foley’s motion for relief was itself

untimely. A motion for relief under Rule 60(b)(6) must be

made within a reasonable time, Fed. R. Civ. P. 60(c)(1), and

relief may only be granted where the petitioner has diligently

pursued review of his claims. See Gonzalez v. Crosby, 545

U.S. 524, 537 (2005); Lehman v. United States, 154 F.3d

1010, 1017 (9th Cir. 1998) (“Neglect or lack of diligence is

not to be remedied through Rule 60(b)(6).”). “What

constitutes a reasonable time depends on the facts of each

case.” In re Pacific Far East Lines, Inc., 889 F.2d 242, 249

(9th Cir. 1989) (internal quotation marks omitted).

The district court concluded that even if Greenberg failed

to notify Foley of the entry of judgment, Foley’s motion for

relief should be denied because 14 months passed after he

learned his petition was denied and before he filed his motion

for relief. The court reasoned that Foley’s “unsuccessful

efforts to communicate with Attorney Greenberg did not

render petitioner unable to seek relief from the judgment he

knew had been entered.”
12 FOLEY V. BITER

But it is apparent from the record that once Foley learned

his petition had been denied, he made reasonable efforts to

determine whether relief was available and how to seek such

relief. On March 4, 2010, shortly after learning that the

district court had denied his petition, Foley sent a letter to the

court, inquiring why he was not notified that the district court

denied his petition. In response, the district court ordered the

clerk to send a copy of the letter to Greenberg and serve a

copy of the order on Foley. On August 2, 2010, Foley again

wrote to the court, explaining that Greenberg still had not

been in contact with him, and asked the court to order

Greenberg to show that he notified Foley of the denial or

explain why he did not, and to send Foley copies of all of the

documents associated with his case.2 The district court

entered an order on January 28, 2011, directing Greenberg to

respond to Foley’s letter within thirty days. Greenberg then

filed his declaration on February 25, 2011. Foley wrote to the

court again on July 10, 2011, stating that he had been unable

to find new counsel to assist him and asking the court to

“allow [him] back into the courts to continue [his] appeal.” 

The court construed this as a Rule 60(b)(6) motion for relief

from judgment.

It was not until the last four months before he filed his

motion for relief that Foley was on notice that Greenberg had

been mistakenly ignoring his communications and that

Greenberg would acknowledge that he never notified Foley

2 Greenberg explained that the only documents in his file were “the

original petition, an extension request to file the traverse, and the

traverse.” It is not clear from the record whether Foley ever received

these documents, but even if Greenberg ultimately forwarded them to

Foley, it appears this is the sum total of the “file” Foley would have had

to work with, to prepare an appeal concerning events that transpired more

than a decade earlier.
FOLEY V. BITER 13

that the district court denied his petition. The delay between

Greenberg’s declaration and Foley’s motion for relief is

reasonable given Foley’s lack of resources and legal training,

and his attempt to find new counsel during that time. To the

extent the district court relied on lack of diligence or failure

to file within a reasonable time to deny Foley’s motion for

relief, this was an abuse of discretion.

CONCLUSION

For the reasons discussed, we REVERSE the district

court’s order denying Foley’s motion for relief from

judgment and REMAND for further proceedings consistent

with this opinion.