Mackey v. Hoffman, No. 11-15115 (6-25-12)(Garbis, Sr. D.J., with Alarcon and Silverman)

Some of our clients have abandonment issues. The abandonment issue here involves post-conviction relief under 2254. The petitioner hired a lawyer to pursue state post-conviction. The case then went to federal habeas, but the lawyer was doing it by this time pro bono.  He informed the petitioner that he needed more money, or he could not proceed further. The state filed a response, and the lawyer did nothing. He did send letters saying that the petitioner needed to get his parents to pay more money. The lawyer also told the client that he supposedly could not do more. The petition was dismissed. The petitioner inquired of the district court about the status of his case. In a hearing, the court remarked that it was concerned with abandonment. However, ultimately, the court felt it could not grant relief from a final judgment under Fed R Crim P 60(b). The 9th reversed and remanded. It held that a court could use 60(b) to vacate, and that there was no mandatory prohibition against it. The issue here was not a mistake by counsel but abandonment by counsel.