UNITED STATES v. DAUENHAUER (2021)

United States Court of Appeals, Ninth Circuit.2021-02-25No. No. 19-35558

Summary · law.co

Holding. The court affirmed the dismissal of the Rule 60(b) motion, though on the ground that Dauenhauer failed to establish entitlement to relief under the applicable standard rather than on the jurisdictional basis articulated by the district court.

Dauenhauer sought to reopen his federal habeas proceeding through a Rule 60(b) motion to reinstate a juror bias claim that his counsel had allegedly abandoned. The district court treated the motion as a second or successive habeas petition and dismissed it for lack of jurisdiction. While the court of appeals concluded the district court committed a jurisdictional error by recharacterizing the motion, it upheld the dismissal on alternative grounds.

The appellate court determined that Dauenhauer's Rule 60(b) motion was properly characterized as seeking relief from a procedural ruling rather than asserting new claims on the merits, thereby avoiding the restrictions that apply to successive habeas petitions. However, the court rejected Dauenhauer's underlying argument that his counsel's conduct warranted relief under Rule 60(b)(6). The court found that while counsel's failure to include the juror bias claim in the amended petition may have been negligent, it did not rise to the level of gross negligence or abandonment required to justify reopening the case.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a Rule 60(b) motion seeking to reinstate an abandoned claim must be recharacterized as a successive habeas petition
Whether habeas counsel's negligence in omitting a claim from an amended petition constitutes gross negligence or abandonment warranting relief under Rule 60(b)(6)
The distinction between attorney error and effective abandonment of a client in the habeas context

Procedural posture

Dauenhauer appealed the district court's order dismissing his Rule 60(b) motion for lack of jurisdiction as a second or successive habeas petition under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A).

Authorities cited

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Opinion · public domain

MEMORANDUM *

Petitioner Larry John Dauenhauer appeals the district courts order recharacterizing his Federal Rule of Civil Procedure 60(b) motion as a second or successive petition and dismissing it for lack of jurisdiction under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A). Although the district court erred in its jurisdictional ruling, we affirm on the alternative ground that the Rule 60(b) motion fails. See Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (“[W]e may affirm on any ground supported by the record.”).

1. The district court erred by recharacterizing Dauenhauers Rule 60(b) motion as a second or successive petition. A Rule 60(b) motion may not be used to assert new claims for relief. Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). But “[i]f neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movants ․ conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules.”

Id. at 533, 125 S.Ct. 2641.

Dauenhauers Rule 60(b) motion was proper because it sought relief from a procedural ruling that precluded resolution of his juror bias claim on the merits. Dauenhauer raised his juror bias claim in both the initial petition and first amended petition. After the district court ruled that the juror bias claim had been abandoned, Dauenhauer moved to reinstate the claim on the ground that his counsels gross negligence “constituted a reason justifying relief from the operation of the judgment.” Butz v. Mendoza-Powers, 474 F.3d 1193, 1195 (9th Cir. 2007) (per curiam) (citation and internal quotation marks omitted). “[B]ecause neither the district courts dismissal nor [Dauenhauers] motion to reopen address the merits for setting [Dauenhauers] conviction aside, allowing the motion to proceed is not inconsistent with AEDPA.” Hall v. Haws, 861 F.3d 977, 985 (9th Cir. 2017). Thus, Dauenhauers motion properly sought Rule 60(b) relief from a “nonmerits aspect” of the habeas proceeding, Gonzalez, 545 U.S. at 534, 125 S.Ct. 2641, and the district court erred in dismissing it for lack of jurisdiction.

2. Nonetheless, Dauenhauers motion is unpersuasive. “A federal habeas petitioner—who as such does not have a Sixth Amendment right to counsel—is ordinarily bound by his attorneys negligence․” Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012) (citation omitted). And although a petitioner may be entitled to relief under Rule 60(b)(6) when he “has been inexcusably and grossly neglected by his counsel,” id., there remains an “essential difference between a claim of attorney error, however egregious, and a claim that an attorney had essentially abandoned his client,” Maples v. Thomas, 565 U.S. 266, 282, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012).

Habeas counsels failure to include Dauenhauers juror bias claim in the second amended petition may have been negligent, but it did not constitute gross negligence amounting to abandonment. Habeas counsel pursued two other claims, conducted an evidentiary hearing on those claims, and appealed the district courts denial of relief. Further, there is no evidence that habeas counsel “performed incompetent legal work, failed to communicate with [Dauenhauer], refused to implement his reasonable requests or failed to keep him informed of key developments in his case.” Towery v. Ryan, 673 F.3d 933, 943 (9th Cir. 2012) (per curiam), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). Thus, Dauenhauer is not entitled to relief under Rule 60(b)(6).

AFFIRMED.

FOOTNOTES

. Although Gonzalez considered habeas proceedings under 28 U.S.C. § 2254, we have since concluded that the Supreme Courts holding also applies to proceedings under § 2255. United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (per curiam).