FILED
NOT FOR PUBLICATION AUG 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTONOUS KINGDOM, No. 09-15138
Petitioner - Appellant, D.C. No. 3:04-cv-02342-PJH
v.
MEMORANDUM*
A. A. LAMERQUE, Warden and PEOPLE
OF THE STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted July 12, 2010
San Francisco, California
Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.**
Petitioner-Appellant Miltonous Kingdom appeals the district court’s
dismissal of his Federal Rule of Civil Procedure 60 motion seeking relief from an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of District of Columbia, sitting by designation.
earlier judgment, in which the district court had dismissed Kingdom’s petition for a
writ of habeas corpus as untimely. See 28 U.S.C. § 2244(d)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. As the facts and procedural
history are familiar to the parties, we recite them here only as necessary to explain
our decision.
Kingdom first challenges the district court’s characterization of his Rule 60
motion as a Rule 60(b)(2) motion based on “newly discovered evidence.” He
relatedly challenges the district court’s dismissal of the Rule 60(b)(2) motion as
untimely filed. See Fed. R. Civ. P. 60(c)(1) (requiring Rule 60(b)(2) motions to be
made within a year of the judgment). Kingdom contends that the basis of his
motion was not “newly discovered evidence,” but rather his attorney’s gross
negligence in not bringing to the court’s attention certain admittedly available and
relevant evidence on the subject of Kingdom’s eligibility for equitable tolling.
Gross attorney negligence is a basis for relief under Rule 60(b)(6). See Cmty.
Dental Servs. v. Tani, 282 F.3d 1164, 1169 (9th Cir. 2002). Under Rule 60(b)(6),
Kingdom argues that his motion was timely because, even though it was filed
nearly two years after the judgment, it was filed within a “reasonable time” given
the circumstances. See Fed. R. Civ. P. 60(c)(1).
2
We need not resolve whether the district court erred in construing
Kingdom’s motion as a Rule 60(b)(2) motion, because the district court did not
abuse its discretion in holding in the alternative that even under Rule 60(b)(6) the
motion was unreasonably late. Kingdom’s motion was based on evidence of
communications between himself and his original counsel dating from before
Kingdom filed his habeas petition. The grounds for the motion were therefore
known and available to Kingdom at the time the original judgment was entered.
We agree with the district court that under such circumstances, to wait not only
more than a year, but until after the conclusion of an appeal to this court on the
same issue,1 constitutes an unreasonable delay.
We also hold that the district court did not abuse its discretion in
determining that Kingdom would not have been entitled to any relief under Rule 60
in any event. We agree with the district court that Kingdom did not show that his
1
Given that Kingdom once before appealed the denial of equitable tolling to
this court, we assume, as the district court must have done, that Kingdom’s motion
was at least arguably based on “later events” (the discovery of new evidence or
attorney misconduct) not related to the “record and issues then before the
[appellate] court” during his prior appeal. Standard Oil Co. of Cal. v. United
States, 429 U.S. 17, 18 (1976) (holding that a district court confronted with a Rule
60 motion after conclusion of an appeal may revisit issues based on “later events”
but may not flout the mandate by re-deciding questions “relate[d] to the record and
issues [previously] before the [appellate] court”). Whether such assumption would
withstand scrutiny, however, is open to serious doubt.
3
attorney’s conduct in connection with the original motion to dismiss constituted an
extraordinary circumstance beyond Kingdom’s control. Rule 60 relief would
therefore have been inappropriate here. See Karraker v. Rent-A-Center, Inc., 411
F.3d 831, 837 (7th Cir. 2005) (“Rule 60(b)(6) . . . is not an appropriate place to slip
in arguments that should have been made earlier.”). Further, the district court
correctly determined that Kingdom’s evidence establishes that his lawyer erred not
by abandoning his client, but simply by misunderstanding the filing deadline under
the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §
2244(d)(1). “Garden variety” attorney error like miscalculating the AEDPA
deadline is not an extraordinary circumstance warranting equitable tolling.
Holland v. Florida, 130 S. Ct. 2549, 2564 (2010).
The district court’s denial of Kingdom’s motion for relief from judgement is
AFFIRMED.
4