Towery v. Ryan, et al., No. 12-15071 (9th Cir. 2012)
Annotate this CaseDefendant was convicted of murder and sentenced to death in 1992. Defendant subsequently filed a motion for relief from judgment seeking the opportunity to litigate the Eddings-Tennard issue as a new claim. Defendant argued that he should be permitted to pursue that claim, notwithstanding the statutory bar on second or successive habeas petitions, because his counsel had abandoned him by failing to present the claim in his amended petition. The district court denied the motion. The court need not decide whether abandonment by counsel could serve as an exception to the bar on second or successive petitions because, like the district court, the court concluded that defendant was not abandoned. Counsel did not engage in "egregious" professional misconduct or leave defendant "without any functioning attorney of record." Accordingly, the court need not decide whether defendant's attorney was negligent in failing to raise a colorable Eddings-Tennard claim. Therefore, the court held that the district court did not abuse its discretion in denying defendant's motion.
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