Metropolitan News-Enterprise


Tuesday, March 29, 2016


Page 1


Ninth Circuit Revives Habeas Corpus Action, Panel Says Client May Have Been Abandoned


From Staff and Wire Service Reports


Finding that an attorney’s conduct constituted “virtual abandonment,” the Ninth U.S. Circuit Court of Appeals yesterday ruled that a California state prisoner may have a case for habeas relief.

A panel consisting of Judges Alex Kozinski and Diarmuid O’Scannlain and Senior Judge J. Clifford Wallace partially reversed District Judge Lawrence J. O’Neill’s denial of Rowan Brooks’ petition.

Brooks, who is serving an indeterminate sentence of 25 years to life for first-degree murder, appealed after the district judge ruled that he was ineligible for relief under Rule 60(b) of the Federal Rules of Criminal Procedure.

In a per curiam opinion, the panel upheld the district judge’s rejection of Brooks’ “actual innocence” argument. Assuming that actual innocence is a valid ground for granting relief, Brooks failed to demonstrate that the evidence of his innocence was compelling, nor did he present “new” evidence to support the claim, the judges said.

But there was compelling evidence that Brooks was abandoned by his counsel, Gregory Mitts of Bakersfield, who failed to an order to show cause why the client’s Rule 60 petition should be dismissed as untimely. “The record demonstrates that Mitts was grossly negligent…,” the panel said.

Kozinski, in a concurrence, accused Mitts of “obstinate incompetence,” saying he “systematically ignored a stream of letters” that Brooks sent from prison about the status of his case and that he “sat on his thumbs” while the filing deadline passed.

Quoting the Enlightenment jurist Francis Bacon, Kozinski said it is the court’s “venerable obligation” to the public to issue “a civil reprehension of advocates, where there appeareth cunning counsel or gross neglect.”

Mitts, he said, “satisfied both of these categories by ignoring Brooks’s communications, missing deadlines and then concealing his dereliction,” Kozinski said.

He went on to write:

“Yet Mitts continues to practice law in California with no mark on his record that would apprise prospective clients of the grave risks of hiring him to represent them.”

Although “lawyers make mistakes,” Kozinski said, they “have a responsibility to communicate with their clients and keep them reasonably apprised of the status of their cases.”

He continued by writing:

“A lawyer who comports himself as Mitts did is not only a hazard to clients, but also a menace to the profession and to the courts. ... Potential clients, who will put their lives in Mitts’s hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes.”

Kozinski closed his concurrence saying that “[t]he State Bar of California may not yet be aware of Mitts’s behavior,” but “[p]erhaps now it will be.”

State Bar records show that Mitts was admitted in 1976 and has no record of public discipline, although he was suspended for a month in 2001 for failing to pay dues.

Neither side’s lead counsel, nor Mitts, immediately responded to Courthouse News Service requests for comment on the case, Brooks v. Yates, 12-17607.


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