FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE WASHINGTON, Nos. 05-99009
Petitioner-Appellant, 07-15536
v. D.C. No.
CV-95-02460-
CHARLES L. RYAN, JAT
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued July 11, 2013
Submitted September 8, 2014
Seattle, Washington
Filed June 17, 2015
Before: Alex Kozinski, Ronald M. Gould
and N. Randy Smith, Circuit Judges.
Opinion by Judge Gould
2 WASHINGTON V. RYAN
SUMMARY*
Habeas Corpus/Death Penalty
The panel dismissed as untimely Arizona death row
inmate Theodore Washington’s appeal from the district
court’s judgment denying his habeas corpus petition (appeal
number 05-99009), and affirmed the district court’s denial of
Washington’s motion to vacate the judgment under Fed. R.
Civ. P. 60(b) (appeal number 07-15536).
The panel dismissed appeal number 05-99009 because
Washington’s notice of appeal was not timely filed under
Fed. R. App. P. 4(a)(1)(A), a mandatory and jurisdictional
time limit. The panel held that Washington’s motion for a
certificate of appealability cannot be construed as a motion
for an extension of time under Fed. R. App. P. 4(a)(5)(A)(i).
In appeal number 07-15537, the panel affirmed the denial
of Washington’s Rule 60(b) motion because the district court
did not abuse its discretion in holding that a Rule 60(b)
motion was not available to extend the time allowed to file a
notice of appeal on the facts here. Rejecting Washington’s
contention that his situation satisfies Rule 60(b)(1)’s
authorization for relief from judgment in a case of “excusable
neglect,” the panel held that where a party files a Rule 60(b)
motion solely to render a notice of appeal timely, and the
motion seeks relief on grounds identical to those offered by
Rule 4(a), Rule 60(b) motions may not be used to escape the
time limits for appeal. The panel also held that the district
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WASHINGTON V. RYAN 3
court did not err in finding that Washington cannot establish
“extraordinary circumstances” justifying relief from judgment
under Rule 60(b)(6), where Washington’s attorney’s
negligence leading to the late filing of the appeal did not
amount to attorney abandonment.
COUNSEL
Gilbert H. Levy (argued), Law Offices of Gilbert H. Levy,
Seattle, Washington, for Petitioner-Appellant.
Jeffrey A. Zick, Assistant Attorney General, Phoenix,
Arizona; Laura Chiasson (argued) and Nicholas Klingerman,
Assistant Attorneys General, Office of the Arizona Attorney
General, Tucson, Arizona, for Respondent-Appellee.
4 WASHINGTON V. RYAN
OPINION
GOULD, Circuit Judge:
Theodore Washington, an Arizona death row inmate,
appeals the district court’s judgment denying his petition for
a writ of habeas corpus under 28 U.S.C. § 2254 (appeal
number 05-99009) as well as the district court’s order
denying Washington’s motion to vacate the judgment under
Federal Rule of Civil Procedure 60(b) (appeal number 07-
15536). We dismiss appeal number 05-99009 because
Washington’s notice of appeal was not timely filed under
Federal Rule of Appellate Procedure 4(a)(1)(A), a mandatory
and jurisdictional time limit. We affirm the denial of
Washington’s Rule 60(b) motion in appeal number 07-15536
because the district court did not abuse its discretion in
determining that under the circumstances here, a Rule 60(b)
motion is not available for the purpose of extending the time
allowed to file an appeal.
Because his attorney did not properly calculate a filing
deadline, Theodore Washington has lost his chance for
appellate review of his habeas petition. In his appeal, he
would have raised issues similar to those raised by one of his
co-defendants, on which another panel of our court ordered
a new penalty-phase trial. See Robinson v. Schriro, 595 F.3d
1086, 1113 (9th Cir. 2010). Because we do not have
jurisdiction to hear Washington’s appeal in appeal number
05-99009, and because the district court did not abuse its
discretion in denying Washington’s Rule 60(b) motion in
appeal number 07-15536, we do not reach the question of
whether the district court erred in denying Washington’s
habeas petition.
WASHINGTON V. RYAN 5
I
In 1987, Washington and two co-defendants, Fred
Robinson and Jimmy Lee Mathers, traveled together from
California to Arizona. Two of them entered a home, robbed
it, and shot the two inhabitants, killing one and seriously
wounding the other. The three men were convicted of first
degree murder, attempted first degree murder, aggravated
assault, residential burglary, and robbery while armed with a
deadly weapon. Following an aggravation–mitigation
hearing, the trial judge sentenced all three to death. At trial,
the prosecution argued that Mathers and Washington entered
the home, while Robinson remained outside. At sentencing,
the trial court stated that Mathers was the triggerman.
The Arizona Supreme Court affirmed the convictions of
Robinson and Washington on direct appeal in State v.
Robinson, 796 P.2d 853 (Ariz. 1990). That opinion recounts
that both victims were shot by a firearm belonging to
Robinson, and cites testimony circumstantially identifying
Washington as threatening the inhabitants with a handgun and
subsequently “ransack[ing]” the house. Id. at 857–58. In a
companion case, the Arizona Supreme Court reversed
Mathers’s conviction. State v. Mathers, 796 P.2d 866 (Ariz.
1990). It held that there was not sufficient evidence to
support the finding that Mathers was involved in the crime,
and explicitly found that Robinson and Washington had
entered the home. Id. at 873.
Robinson filed state and federal post-conviction relief
petitions, and eventually won relief in the Ninth Circuit.
Robinson, 595 F.3d at 1090–91. Relying on the trial court’s
factual premise that Washington and Mathers entered the
home, id. at 1091–94, we held that the state trial court’s
6 WASHINGTON V. RYAN
application of the “cruel, heinous, and depraved” aggravating
factor was arbitrary and capricious, and that Robinson
received ineffective assistance of counsel at the sentencing
phase of the joint trial, id. at 1100–12. We granted his
petition for a new penalty-phase trial. Id. at 1113.
The state trial court denied Washington’s initial post-
conviction relief petition. He filed a petition for a writ of
habeas corpus in the District of Arizona, which found that
some of the claims he raised in the petition were procedurally
barred and denied relief on the remainder. Washington filed
a motion to amend the judgment, which the district court
denied in an order filed June 8, 2005. Rule 4(a)’s 30-day
deadline to file a notice of appeal from that judgment expired
on Friday, July 8.
On Monday, July 11th, one business day after the 30-day
deadline, Washington filed a notice of appeal along with a
motion for a certificate of appealability (“COA”). The
district court granted a COA for three of his claims:
1) whether the trial court erred in denying Washington’s
motion to sever his trial from those of his co-defendants,
2) whether the “cruel, heinous, and depraved” sentencing
factor had been arbitrarily and capriciously applied, and
3) whether Washington received constitutionally ineffective
assistance of counsel during the penalty phase of the trial. In
response to our order to show cause why the appeal should
not be dismissed as untimely, Washington filed a motion in
the district court to vacate the district court’s judgment under
Rule 60(b), and we stayed the show-cause order until the
resolution of the 60(b) motion.
The district court denied Washington’s 60(b) motion, and
Washington timely appealed that decision. We vacated the
WASHINGTON V. RYAN 7
district court’s order and issued a limited remand directing
the district court to replace Washington’s counsel of record
and to re-hear the 60(b) motion because the district court
lacked jurisdiction to hear the motion without a remand order
from the original untimely appeal. The district court re-heard
and again denied Washington’s 60(b) motion, and
Washington again timely appealed. We discharged our show-
cause order with respect to timeliness, granted a certificate of
appealability, and this appeal followed.
We stayed proceedings in this case pending the Supreme
Court’s resolution of two potentially relevant cases: Maples
v. Thomas, 132 S. Ct. 912 (2012), and Martinez v. Ryan,
132 S. Ct. 1309 (2012). After the opinions in those two
decisions were issued, we requested and received
supplemental briefing on their impact on Washington’s
claims. Our court then issued its decision in Mackey v.
Hoffman, 682 F.3d 1247 (9th Cir. 2012), which relied on
Maples to hold that attorney abandonment could constitute an
extraordinary circumstance justifying post-judgment relief
under Rule 60(b)(6). We heard argument1 and then requested
and received supplemental briefing addressing a potential
intra-circuit conflict between Mackey and In re Stein,
197 F.3d 421 (9th Cir. 2000).
We issued a limited remand order for the district court to
determine whether the late filing of the notice of appeal was
attorney abandonment such that relief would be available
under Mackey’s limited exception. The district court
1
This case was originally assigned to a panel of Judge Betty Fletcher,
Judge Harry Pregerson, and Judge Sidney Thomas, which handled all pre-
argument motions. After the death of Judge Betty Fletcher, the case was
reassigned to the current panel.
8 WASHINGTON V. RYAN
determined that the late filing was due to a miscalculation of
the filing deadline by a legal secretary in the office of the
Federal Public Defender. It held that this miscalculation was
mere negligence, not the kind of abandonment necessary to
sever the agency relationship between attorney and client and
allow for relief under Mackey. The district court then
returned the case to us.
II
Federal Rule of Appellate Procedure 4(a)(1)(A) requires
parties in civil cases to file a notice of appeal within 30 days
of the entry of judgment, a time limit that was codified in the
habeas statutes at 28 U.S.C. § 2107(a). Because it is a
statutory deadline, failure to meet it “deprive[s] the Court of
Appeals of jurisdiction.” Bowles v. Russell, 551 U.S. 205,
213 (2007).2
2
We have previously commented on the repercussions of the
jurisdictional nature of Rule 4(a)’s statutory deadlines. In United States
ex rel. Haight v. Catholic Healthcare West, 602 F.3d 949 (9th Cir. 2010),
we faced a case where “our circuit precedent gave . . . 60 days to file a
notice of appeal. Relying on [that precedent], Plaintiffs filed their notice
of appeal 51 days after the entry of judgment. At that time, we would
have deemed their appeal timely. But while this appeal was pending, the
Supreme Court held that . . . plaintiffs in such cases have only 30 days to
appeal.” Id. at 952–53 (citing United States ex rel. Eisenstein v. City of
New York, 556 U.S. 928, 936–37 (2009)). We dismissed the appeal for
lack of jurisdiction, noting that, because the Supreme Court had
“expressly refused to limit its decision to prospective application,”
recognized that potential for “harsh consequences,” and denied the
possibility of equitable relief, we were bound to apply its holding. Id. at
953. However, we felt compelled to note that “[i]t is a serious
understatement to call this result ‘inequitable.’” Id. (quoting Bowles,
551 U.S. at 214).
WASHINGTON V. RYAN 9
Washington concedes that his notice of appeal was filed
one day late, which generally would end the inquiry.
However, Rule 4(a)(5)(A) permits the district court to
“extend the time to file a notice of appeal if: (i) a party so
moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and (ii) . . . that party shows excusable
neglect or good cause.” Washington contends that his motion
for a COA should be construed as a motion for an extension
of time under Rule 4(a)(5). Because the motion for a COA
was filed less than 30 days after the expiration of the period
for filing a notice of appeal in Rule 4(a)(1), it would meet
Rule 4(a)(5)(A)(i)’s timing requirement if it were so
construed.
We decline to do so.3 We agree that, particularly in cases
involving the death penalty or pro se litigants, “[a]ny
submission signed by a party that may fairly be read as a
request to the district court to exercise its discretionary
powers to permit a late appeal should suffice.” Campos v.
LeFevre, 825 F.2d 671, 676 (2d Cir. 1987). But even that low
bar is not met here. Our precedent follows the general rule
that an untimely notice of appeal may not be construed as a
motion for an extension of time. Pettibone v. Cupp, 666 F.2d
333, 335 (9th Cir. 1981); see also Campbell v. White,
721 F.2d 644, 646 & n.3 (8th Cir. 1983) (gathering extra-
circuit cases for the same proposition). We see no logical
reason to treat motions for a COA as an exception to this
well-established rule, and no circuit case to date has done so.
3
Because we hold that Washington’s motion for a COA cannot be
construed as a motion for an extension of time, we need not and do not
reach the question of whether the miscalculation of the filing deadline was
“excusable neglect or good cause” under Rule 4(a)(5)(A)(ii).
10 WASHINGTON V. RYAN
But even if we were to consider such a possibility,
Washington’s motion for a COA here did not indicate that it
was intended to serve as a motion for an extension of time.
See Bordallo v. Reyes, 763 F.2d 1098, 1101–02 (9th Cir.
1985) (holding that “a court must construe whether a motion,
however styled, is appropriate for the relief requested”). The
motion for a COA does not mention timeliness and does not
imply a need for additional time for any reason. Nor could it
reasonably be so construed: when Washington’s motion for
a COA was filed, Washington’s counsel believed that the
notice of appeal was timely filed and did not think that there
was need for an extension of time.
Because Washington’s motion for a COA cannot be
construed as a motion for an extension of time, his notice of
appeal does not meet the mandatory and jurisdictional time
limits in Rule 4(a), and we are without jurisdiction to
consider his appeal of the district court’s denial of his petition
for habeas corpus. We therefore dismiss appeal number 05-
99009.
III
Washington’s 60(b) motion requested that the district
court “vacate the judgment it entered on June 8, 2005
[denying Washington’s petition for a writ of habeas corpus],
and reenter that judgment nunc pro tunc as of June 9, 2005,”
thereby making timely Washington’s notice of appeal.
Washington articulates two grounds for such relief. First, he
argues that his situation satisfies Rule 60(b)(1)’s
authorization for relief from judgment in cases of “mistake,
inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P.
60(b)(1). Second, he argues that his untimely filing resulted
from “extraordinary circumstances” that fall into Rule
WASHINGTON V. RYAN 11
60(b)(6)’s catch-all provision. See Gonzalez v. Crosby,
545 U.S. 524, 535 (2005). We affirm the district court’s
denial of Washington’s 60(b) motion. See Stein, 197 F.3d at
424 (“We review the district court’s denial of [a Rule 60(b)
motion] for abuse of discretion.”).
A
Washington argues in his Rule 60(b) motion that the
circumstances here meet the requirements of Rule 60(b)(1).
However, even if the situation is in fact a case of “excusable
neglect,” that prong of Rule 60(b)(1) is not an avenue by
which a party can extend the time periods allowed for filing
a notice of appeal, so we must affirm the denial of
Washington’s Rule 60(b) motion. See Stein, 197 F.3d at 424.
Stein involved a group of creditors in a bankruptcy case
who did not file a timely notice of appeal from a judgment of
the district court in favor of the debtor. Id. at 423. The
creditors alleged that they had not been given notice of the
entry of judgment until after the 30-day deadline for the filing
of a notice of appeal had passed. Id. We discussed the ways
in which Rule 4 permits parties to extend the time for filing
a notice of appeal, including Rule 4(a)(5)’s option to file a
motion for extension of time within an additional 30-day
period, and Rule 4(a)(6)’s “outer limit” which gives the
district court the option to reopen the time to file a notice of
appeal if a party did not receive notice of the judgment
against it. Id. at 424–25. We held that, “on the facts of this
case relief was not available under Rule 60(b) because the
exclusive remedies for a failure to file a timely notice of
12 WASHINGTON V. RYAN
appeal due to a lack of notice of entry of the judgment or
order were contained in Rule 4(a).” Id. at 424.4
We reach the same result here. Though Stein explicitly
addressed only situations in which a lack of notice of
judgment was the ground for the Rule 60(b) motion, the
case’s logic and the language of Rule 4(a) and Rule 60(b)
support the same conclusion that Stein reached. As we
discussed above, Rule 4(a)(5)(A) permits the district court to
“extend the time to file a notice of appeal if: (i) a party so
moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and (ii) . . . that party shows excusable
neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). Rule 60
also provides for relief from judgment for “excusable
neglect,” Fed. R. Civ. P. 60(b)(1), but permits such motions
to be filed up to a year after entry of the judgment from which
relief is sought, id. R. 60(c)(1). As the Third Circuit has
persuasively explained:
Rule 4(a) is a specific procedural rule,
governing appellate practice, based on a
statutory declaration, 28 U.S.C. § 2107,
prescribing the time within which an appeal
from a district court order must be taken.
Rule 60(b) is a general procedural rule, of
applicability to district courts, allowing for
relief from judgments. It is a fundamental
4
This is the majority rule in our sister circuits. See 16A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure 3950.3 at nn.37–47 (4th ed. 2014) (citing cases for the
proposition that the tactic of bringing a Rule 60(b) motion “for no purpose
but to induce the district court to vacate and re-enter the underlying
judgment and thereby re-start the time to appeal” is “clearly forbidden in
all Circuits, save perhaps, the Sixth.” (internal quotation marks omitted)).
WASHINGTON V. RYAN 13
principle of statutory construction that the
specific language controls over general
language. Under this principle, Rule 4(a), and
not Rule 60(b), controls the time within which
an appeal must be taken. Also, to allow a
party to rely on Rule 60(b) as an alternative to
the time constraints of Rule 4(a) would have
the substantive effect of nullifying the
provisions of Rule 4(a)(5). Competing
statutes should not, if at all possible, be
interpreted so that the provisions of one will
abrogate the provisions of another.
West v. Keve, 721 F.2d 91, 96 (3d Cir. 1983) (internal
citations omitted); see also Dunn v. Cockrell, 302 F.3d 491,
491–93 (5th Cir. 2002) (per curiam) (holding that motions
under Rule 60(b)(1) may not be used to evade the time limits
of Rule 4(a) in a case with a procedural posture similar to
Washington’s).
If we permitted Washington to gain relief under Rule
60(b)(1), it would render the escape hatch already included in
Rule 4(a)(5) almost unnecessary, and would also evade the
time limits in that rule, because excusable neglect could allow
an exemption from the Rule 4(a) time limits up to a year after
judgment, far beyond the 30 day extension of the time to
appeal that Rule 4(a)(5) allows in cases of excusable neglect.
We do not read the law to permit this, and conclude that
where a party files a Rule 60(b) motion solely to render a
notice of appeal timely, and the motion seeks relief on
grounds identical to those offered by Rule 4(a), Rule 60(b)
motions may not be used to escape the time limits for appeal.
As discussed in Part II above, Washington did not file a
motion that can be construed as a motion for extension of
14 WASHINGTON V. RYAN
time under Rule 4(a)(5), and he does not allege that he did not
receive notice of the judgment against him, so Rule 4(a)(6)
does not apply to his situation. The district court did not
abuse its discretion when it rejected Washington’s Rule
60(b)(1) motion that had tried to avoid the consequences of
an untimely notice of appeal.
B
Although a showing of excusable neglect under Rule
60(b)(1) cannot be used to render a notice of appeal timely,
we have not entirely foreclosed using Rule 60(b) for that
purpose. We have held that 60(b)(6) can be used to remedy
an untimely notice of appeal on a showing of “extraordinary
circumstances.” See Mackey, 682 F.3d at 1251. However,
we conclude that the district court did not err in finding that
Washington cannot establish extraordinary circumstances
here, so the district court did not abuse its discretion in
denying Washington’s motion.
In Mackey, we faced the problem of a habeas petitioner
whose attorney filed a petition for a writ of habeas corpus in
federal court under 28 U.S.C. § 2254 but stopped litigating
the case because Mackey’s parents did not pay his legal fees.
Id. at 1248–50. Because the attorney neither filed an appeal
of the district court’s denial of the habeas petition nor alerted
Mackey to the fact that judgment had been entered against
him, Mackey forfeited his opportunity to appeal. Id. A new
attorney sought to revive this lost chance by filing a motion
under Rule 60(b) to re-enter the denial of the habeas petition
and restart the time allowed for an appeal under Rule 4(a).
Id. The district court held that Stein deprived it of discretion
to consider a Rule 60(b) motion filed only to remedy an
untimely appeal. Id. at 1250.
WASHINGTON V. RYAN 15
We reversed. Id. at 1254. We noted that Stein’s holding
was based on the “tessellated scheme” of Rule 4(a) and
Federal Rule of Civil Procedure 77(d), regarding notice of
judgment. Id. at 1252 (quoting Stein, 197 F.3d at 426).
Because Mackey’s appeal was untimely not for lack of notice,
but because his counsel had failed to continue representing
him in court—a scenario for which no rule parallel to Rule 77
exists—we concluded that the Federal Rules were not so
comprehensive as to leave no room for Rule 60(b)(6).
We recognized that “[a] federal habeas petitioner—who
as such does not have a Sixth Amendment right to counsel—
is ordinarily bound by his attorney’s negligence.” Id. at 1253
(quoting Towery v. Ryan, 673 F.3d 933, 941 (9th Cir. 2012)).
However, we then reasoned from Maples, 132 S. Ct. at
923–24 (holding that attorney abandonment constitutes an
extraordinary circumstance that allows a federal court to
disregard the state procedural bar to hearing a habeas
petition), and Community Dental Services v. Tani, 282 F.3d
1164, 1169–71 (9th Cir. 2002) (holding that a defendant had
shown extraordinary circumstances where his attorney
disregarded his instructions and purposefully deceived him
about the progress of the proceedings), that “when a federal
habeas petitioner has been inexcusably and grossly neglected
by his counsel in a manner amounting to attorney
abandonment,” the petitioner may get relief through a motion
filed under Rule 60(b)(6), Mackey, 682 F.3d at 1253.
The Mackey panel remanded to the district court to
determine whether such abandonment had occurred, and our
panel did the same with Washington’s claims. On remand,
the district court reviewed the facts—including that
Washington’s attorney filed an untimely notice of appeal,
waited until (what he incorrectly believed to be) the final day
16 WASHINGTON V. RYAN
to file that notice of appeal, had logged 260.9 hours that
month, relied on an assistant to calculate the filing deadline,
and was uncertain about the filing requirements. D. Ct. Dkt.
No. 167, at 4, Washington v. Ryan, No. CV-95-2460 (D. Ariz.
2013). It relied on Towery, 673 F.3d at 938, to find that “the
facts alleged here suggest mere negligence, not
abandonment,” because none of the allegations were so
serious as to constitute the kind of “inexcusable or gross
neglect” found in Mackey and Maples. D. Ct. Dkt. No. 167,
at 7–9.
We cannot conclude that the district court erred in finding
that Washington’s attorney did not abandon him. Unlike
counsel in Maples and Mackey, Washington’s attorney
worked diligently throughout the proceedings, and diligently
attempted to remedy the error he made once the untimely
filing was discovered. Further, the error, while serious in
consequence, is exactly the kind of behavior that has been
described as mere negligence in other situations, including
death penalty cases. See, e.g., Lawrence v. Florida, 549 U.S.
327, 336–37 (2007) (“Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the post-
conviction context where prisoners have no constitutional
right to counsel.”).
Mackey holds that relief can be warranted as an
extraordinary circumstance under Rule 60(b)(6) when there
has been attorney abandonment, but the district court here on
limited remand found that there was no attorney
abandonment, and we agree. Attorney negligence leading to
late filing of an appeal is not the type of extraordinary
circumstance that warrants relief under Rule 60(b)(6). Nor
has Washington presented any other facts that would
constitute “extraordinary circumstances” under 60(b)(6). We
WASHINGTON V. RYAN 17
affirm the denial of Washington’s Rule 60(b) motion. We
stress that our analysis applies only to Rule 60(b) motions
filed for the sole purpose of vacating and reentering a
judgment to remedy an untimely notice of appeal.
IV
We dismiss Washington’s appeal in case number 05-
99009 because we do not have jurisdiction to entertain an
untimely notice of appeal and because Washington’s motion
for a COA cannot be construed as a motion for an extension
of time. We affirm the denial of Washington’s 60(b) motion
in case number 07-15536 because the district court did not
abuse its discretion in holding that a 60(b) motion was not
available to extend the time allowed to file a notice of appeal
on the facts here.5
DISMISSED IN PART, AFFIRMED IN PART.
5
We understand that Washington is foreclosed by his lawyer’s
negligence, under circumstances where a similarly situated co-defendant
received federal habeas corpus relief that prevented the death penalty
absent a corrected sentencing process. But our conclusion is required
under the Supreme Court’s precedent making the time limits for appeal
mandatory and jurisdictional, and our conclusion that Rule 60(b) cannot
be used to render a notice of appeal timely where Rule 4(a)(5) offers an
identical avenue for relief.