Attorney Abandonment and Rule 60: The End or Not?

By Natasha Kang

Natasha Kang is a senior at the University of California, Davis.

Whether it was in government class or Law & Order, we have all heard about the right to counsel, an important right listed in the highest law of the land: the United States Constitution. The Sixth Amendment stipulates that in criminal prosecutions, the accused will “have the assistance of counsel for his defense.” [1] However, the Fifth Circuit of Appeals has passed a decision seemingly in conflict with the Supreme Court’s ruling in Maples v. Thomas that attorney abandonment is a valid excuse for a failure to appeal a denial of habeas relief.

A writ of habeas corpus is used as post-conviction relief for prisoners in both the state and federal levels who wish to challenge the legal grounds of the application of laws used in the court proceedings that resulted in their conviction. [2] If a court denies the habeas application, the defendant may attempt to appeal their denial, but the appeal must filed within a certain time period. If a notice of appeal is not filed in time, federal habeas review will be barred from the petitioner due to his or her failure to follow state appellate procedure, also known as procedural default. [3] 

In Maples v. Thomas, the Supreme Court had held that the abandonment by his attorneys was an “extraordinary circumstance” that excused his procedural default. [4] Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alleging that his trial attorneys did not give him effective assistance, Maples petitioned in 2001. Two pro bono attorneys from New York law firm Sullivan and Cromewell had written his petition, but both left the firm while the petition was pending – without informing Maples or the court. Maples was left with no options, as he could not be personally served court documents when he had attorneys listed as his representatives. In the majority opinion, Justice Ruth Ginsburg wrote that due to the circumstances, there was “cause” for excusing Maples’ procedural default.

The decision of Maples v. Thomas, however, regarded state habeas corpus relief. Perez v. Stephens, filed in May, questions whether attorney abandonment is an “extraordinary circumstance” that warrants the reentry of a judgment in which the abandonment caused the failure to appeal a denial of federal habeas relief as held by the Supreme Court in Maples v. Thomas. [5] The district court had denied habeas corpus relief to Perez, another death row petitioner, and his request for a certificate of appealability. Without Perez’s knowledge, his attorney decided not to file an appeal. The district court granted Perez’s motion, vacating and reentering its judgment, and allowed Perez to appeal. However, the Fifth Circuit dismissed Perez’s appeal, and Perez’s petition was later denied by the Supreme Court on October 20th.

This decision not only conflicts with the Supreme Court’s decisions, but also with the decisions of other Circuits. In Mackey v. Hoffman, the Ninth Circuit reversed the Maples decision, stating that the district court could grant relief in cases of attorney abandonment. [6]

All said cases concern the Federal Rule of Civil Procedure 60(b), which deals with the grounds for relief from a final judgment of court. [7] Rule 60(b) lists “excusable neglect” among its accepted grounds for relief. The cases represented by Perez seem to be ripe for the review of Supreme Court. With conflict surrounding the application of Rule 60 in both the circuit courts and the Supreme Court, there is a higher chance of the petition being granted certiorari. There seems to be a need for a clear interpretation of the federal rule, the definition of attorney abandonment is, and the circumstances that provide grounds to give relief of final judgment.


[1] United States Constitution Amendment VI, Cornell University Law School Legal Information Institute, http://www.law.cornell.edu/constitution/sixth_amendment.
[2] Habeas Corpus, Cornell University Law School Legal Information Institute, http://www.law.cornell.edu/wex/habeas_corpus.
[3] Procedural Default, FindLaw Legal Dictionary, http://dictionary.findlaw.com/definition/procedural-default.html.
[4] Maples v. Thomas, 132 S.Ct. 912 (2012).
[5] Perez v. Stephens, 745 F.3d 174 (5th Cir. 2014).
[6] Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012).
[7] Federal Rules of Civil Procedure Rule 60, Cornell University Law School Legal Information Institute, http://www.law.cornell.edu/rules/frcp.


Photo Credit: Flickr user Phil Roeder