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Name: Mackey v. Hoffman
Case #: 11-15115
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/25/2012

Abandonment by the attorney constitutes extraordinary circumstances permitting the court to enter a new judgment so as to allow petitioner the opportunity to pursue an appeal. Attorney Grim represented petitioner in post-conviction proceedings in state and federal court. After filing an amended petition in federal court, Grim took no further action, including failing to advise Mackey of entry of judgment and failing to file a notice of appeal. In fact, Mackey believed that the matter was pending trial. Upon learning that judgment had been entered and the time to appeal had passed, Mackey requested the district court vacate the order. The court denied the motion to vacate, believing it lacked the discretion to vacate the judgment. The appellate court found that the gross negligence by counsel amounted to virtual abandonment, which is an extraordinary circumstance justifying vacating the judgment.