9th Cir. Forgives ‘Nightmare'Miscalculation

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By Kimberly Strawbridge Robinson

Aug. 15 — An attorney's “nightmare” scenario of incorrectly calculating a death row inmate's filing deadline was swept aside by a 6-5 U.S. Court of Appeals for the Ninth Circuit Aug. 15 ( Washington v. Ryan, 2016 BL 263109, 9th Cir., No. 05-99009, 8/15/16 ).

The attorney filed the notice of appeal one day too late under Federal Rule of Appellate Procedure 4(a)(1)—a “nightmare,” according to the dissent.

But this was one of the “rare cases that warrant reentry of judgment for purposes of restoring the right to appeal,” Judge Morgan Christen wrote for the court's en banc majority.

Both of the defendant's “co-defendants received relief from their death sentences,” the court said. Refusing relief here would bar courts from considering the defendant's potentially meritorious habeas petition, it said.

Given the “tremendous disparity” in prejudice to the parties, the court ordered the district court to vacate its judgment under Rule 60(b) and reenter judgment so that the appeal could be considered timely.

Judge Morgan Christen wrote the court's opinion, which was joined by Chief Judge Sidney R. Thomas and Judges William A. Fletcher, Johnnie B. Rawlinson, Richard R. Clifton and Milan D. Smith Jr.

Judges Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta and Paul J. Watford dissented.

They argued that the Rule 4(a) deadline was jurisdictional and therefore not subject to “equitable exceptions.”

Law Offices of Gilbert H. Levy argued for the defendant. Office of the Arizona Attorney General argued for the state.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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