SAN FRANCISCO (CN) - Finding that an attorney's conduct constituted "virtual abandonment," the Ninth Circuit on Monday ruled that a California state prisoner may have a case for habeas relief.
In a separate concurrence, Circuit Judge Alex Kozinski called for the California state bar to take notice of what he called "obstinate incompetence" on the part of the attorney, Gregory Mitts.
Rowan Brooks, who is serving an indeterminate sentence of 25 years to life for first-degree murder, appealed a federal judge's denial of his motion for relief from judgment.
In a per curiam opinion, the Ninth Circuit's three-judge panel held that although the district court properly found that Brooks failed to demonstrate that he was entitled to relief under a theory of "actual innocence," the court was wrong to find that Brooks was not abandoned by his counsel.
"The record demonstrates that Mitts was grossly negligent in his representation of Brooks at the time the district court ordered Brooks to show cause why his petition should not be dismissed as untimely," the opinion states.
Judge Kozinski's concurrence outlined Mitts's conduct in detail, holding that the attorney "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 deadline for Brooks to file a timely habeas petition 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."
"Brooks's federal habeas counsel, Gregory H. Mitts, satisfied both of these categories by ignoring Brooks's communications, missing deadlines and then concealing his dereliction," Kozinski said.
He added: "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: "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 by saying that he was unaware of any disciplinary action taken against Mitts for his conduct.
"The State Bar of California may not yet be aware of Mitts's behavior," he said. "Perhaps now it will be."
Neither side's lead counsel, nor Mitts, immediately responded to requests for comment Monday afternoon.
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