MARK D. FOLEY, Petitioner-Appellant,
MARTIN BITER, Warden, Respondent-Appellee
Argued and Submitted June 8, 2015, San Francisco, California
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:01-cv-00714-MCE-JFM. Morrison C. England, Jr., Chief District Judge, Presiding.
The panel reversed the district court's order denying Mark Foley's motion pursuant to Fed.R.Civ.P. 60(b) for relief from the 2004 denial of his habeas corpus petition in a case in which Foley's counsel never informed Foley that the court denied his petition and Foley only discovered that his petition was denied six years later when he sent a letter to the court inquiring about its status.
The panel held (1) that the district court erred by finding that Foley was not abandoned by his attorney, (2) that the abandonment directly prevented Foley from timely appealing the denial of his habeas petition, and (3) that the motion for relief was timely because once Foley learned his petition had been denied, he made reasonable efforts to determine whether relief was available and how to seek such relief. The panel remanded for further proceedings.
Heather Williams, Federal Defender, Carolyn M. Wiggin (argued), Assistant Federal Public Defender, Sacramento, California, for Petitioner-Appellant.
Kamala Harris, Attorney General, Michael Farrell, Senior Assistant Attorney General, Eric Christoffersen, Supervising Deputy Attorney General, Mark Johnson and Sally Espinoza (argued), Deputy Attorneys General, Office of the California Attorney General, Sacramento, California, for Respondent-Appellee.
Before: Mary M. Schroeder, Dorothy W. Nelson, and Morgan Christen, Circuit Judges.
Morgan Christen, Circuit Judge.
Mark Foley appeals the district court's order denying his motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). Foley, who was convicted of murder in California state court, properly filed a petition for habeas corpus in federal district court in 2001. The district court denied his petition in 2004. Foley's counsel, Mark Greenberg, forgot that he represented Foley and never informed Foley that the court denied his petition. Foley only discovered that his petition was denied six years later when he sent a letter to the court inquiring about its status. Because Greenberg's abandonment of Foley directly prevented Foley from timely appealing the district court's denial of his habeas petition, and because Foley made reasonable efforts to pursue his claims, we reverse the district court's order.
For his involvement in a drug-related shooting death, a California jury found Mark Foley guilty of first degree murder, conspiracy to commit assault with a firearm, conspiracy to commit extortion, kidnapping for extortion, and kidnapping. The court sentenced Foley to life in prison without the possibility of parole with a four-year enhancement for use of a firearm, plus a consecutive, determinative sentence of 20 years and eight months. The California Court of Appeal affirmed Foley's conviction, and the California Supreme Court summarily denied Foley's petition for review.
Foley filed a petition for a writ of habeas corpus in federal district court on April 12, 2001. On December 21, 2002, while the petition was pending, attorney Greenberg sent a letter to Foley stating: " I know it's been a long time. The federal courts are super slow. Nothing to do but wait. I hope you have a nice holiday under the circumstances." This was apparently the last communication from Greenberg to Foley. On July 1, 2004, a magistrate judge issued findings and a recommendation to deny Foley's petition. The district court adopted the magistrate's findings and recommendation in full and denied ...