Gross negligence by defense counsel, which amounted to virtual abandonment of his client, constituted an extraordinary circumstance excusing the late filing of inmate’s federal habeas petition. Brooks was sentenced to life in prison for first degree murder. After his state appeals were rejected, he retained an attorney to seek writ relief in federal court. His attorney failed to keep him informed on the status of his petition and refused to respond to Brooks’ inquiries. His attorney missed the deadline for filing Brooks’ federal petition, then attempted to file it late. When the district court issued an order to show cause why the untimely petition should not be dismissed, the attorney failed to respond and the petition was dismissed. Brooks was not informed of these developments until his wife discovered the issues. His petition for relief from the dismissal was denied, the district court finding that Brooks had not been abandoned by his attorney. He appealed. Held: Reversed in part. Under Federal Rule of Civil Procedure 60(b)(6), the failure to timely file a petition may be excused where an attorney has abandoned his client. “The proper inquiry is whether extraordinary circumstances prevented Brooks from taking timely action to present or correct an erroneous judgment,” here, the district court’s dismissal of his petition. The appeals court found that counsel’s behavior was not mere negligence but virtual abandonment, i.e., “neglect so gross that it is inexcusable,” and that it vitiated the agency relationship which provides the basis for a court to impute the attorney’s actions to the defendant. However, even where a defendant is abandoned by his attorney, he must establish due diligence in pursuing his claim. The court directed the district court to address this issue on remand.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/28/12-17607.pdf