Argued; July 11, 2013
Submitted, Seattle, Washington September 8, 2014
Appeal from the United States District Court for the District of Arizona. D.C. No. CV-95-02460-JAT. James A. Teilborg, Senior District Judge, Presiding.
Habeas Corpus/Death Penalty
The panel dismissed as untimely Arizona death row inmate Theodore Washington's appeal from the district court's judgment denying his habeas corpus petition (appeal number 05-99009), and affirmed the district court's denial of Washington's motion to vacate the judgment under Fed.R.Civ.P. 60(b) (appeal number 07-15536).
The panel dismissed appeal number 05-99009 because Washington's notice of appeal was not timely filed under Fed. R. App. P. 4(a)(1)(A), a mandatory and jurisdictional time limit. The panel held tat Washington's motion for a certificate of appealability cannot be construed as a motion for an extension of time under Fed. R. App. P. 4(a)(5)(A)(i).
In appeal number 07-15537, the panel affirmed the denial of Washington's Rule 60(b) motion because the district court did not abuse its discretion in holding that a Rule 60(b) motion was not available to extend the time allowed to file a notice of appeal on the facts here. Rejecting Washington's contention that his situation satisfies Rule 60(b)(1)'s authorization for relief from judgment in a case of " excusable neglect," the panel held that where a party files a Rule 60(b) motion solely to render a notice of appeal timely, and the motion seeks relief on grounds identical to those offered by Rule 4(a), Rule 60(b) motions may not be used to escape the time limits for appeal. The panel also held that the district court did not err in finding that Washington cannot establish " extraordinary circumstances" justifying relief from judgment under Rule 60(b)(6), where Washington's attorney's negligence leading to the late filing of the appeal did not amount to attorney abandonment.
Gilbert H. Levy (argued), Law Offices of Gilbert H. Levy, Seattle, Washington, for Petitioner-Appellant.
Jeffrey A. Zick, Assistant Attorney General, Phoenix, Arizona; Laura Chiasson (argued) and Nicholas Klingerman, Assistant Attorneys General, Office of the Arizona Attorney General, Tucson, Arizona, for Respondent-Appellee.
Before: Alex Kozinski, Ronald M. Gould and N. Randy Smith, Circuit Judges. Opinion by Judge Gould.
GOULD, Circuit Judge
Theodore Washington, an Arizona death row inmate, appeals the district court's judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (appeal number 05-99009) as well as the district court's order denying Washington's motion to vacate the judgment under Federal Rule of Civil Procedure 60(b) (appeal number 07-15536). We dismiss appeal number 05-99009 because Washington's notice of appeal was not timely filed under Federal Rule of Appellate Procedure 4(a)(1)(A), a mandatory and jurisdictional time limit. We affirm the denial of Washington's Rule 60(b) motion in appeal number 07-15536 because the district court did not abuse its discretion in determining that under the circumstances here, a Rule 60(b) motion is not available for the purpose of extending the time allowed to file an appeal.
Because his attorney did not properly calculate a filing deadline, Theodore Washington has lost his chance for appellate review of his habeas petition. In his appeal, he would have raised issues similar to those raised by one of his co-defendants, on which another panel of our court ordered a new penalty-phase trial. See Robinson v. Schriro, 595 F.3d 1086, 1113 (9th
Cir. 2010). Because we do not have jurisdiction to hear Washington's appeal in appeal number 05-99009, and because the district court did not abuse its discretion in denying Washington's Rule 60(b) motion in appeal number 07-15536, we do not reach the question of ...