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Name: Washington v. Ryan
Case #: 07-15536
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/17/2015

Death row inmate who filed notice of appeal in federal habeas proceedings one day late due to a miscalculation of the filing deadline by attorney’s secretary was not entitled to relief. Washington, Robinson, and Mathers were convicted of first degree murder among other offenses in Arizona state court. They were all sentenced to death. Mathers’s conviction was reversed on direct appeal. Robinson’s federal habeas petition for a new penalty phase trial was granted by the Ninth Circuit. Washington also filed a federal habeas petition, raising the same issue as Robinson, but the district court denied relief. Washington’s notice of appeal to the Ninth Circuit was filed one day late because his attorney’s secretary had miscalculated the deadline for the notice of appeal. Washington filed a motion to vacate the district court’s judgment under Federal Rule of Civil Procedure 60(b) so that the judgement could be reentered at a later date, thereby making his notice of appeal timely. The district court denied the motion and Washington appealed. Held: Denial of Rule 60(b) motion affirmed and appeal dismissed. Rule 60(b)(6) can be used to remedy an untimely notice of appeal on a showing of “extraordinary circumstances.” Attorney abandonment could constitute an extraordinary circumstance justifying postjudgment relief under Rule 60(b)(6). (Mackey v. Hoffman (9th Cir. 2012) 628 F.3d 1247 [finding attorney abandonment where attorney stopped working on case altogether because he had not been paid].) But what happened here did not rise to the level of abandonment as Washington’s attorney worked diligently on Washington’s case and attempted to remedy his error. Instead, miscalculating the due date was “mere negligence” (see, e.g., Lawrence v. Florida (2007) 549 U.S. 327, 336-337) and was not an extraordinary circumstance.