               United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-2730
                       ___________________________

                                Mark Christeson,

                     lllllllllllllllllllllPetitioner - Appellant,

                                         v.

                                    Don Roper,

                    lllllllllllllllllllllRespondent - Appellee.

                            ------------------------------

 American Bar Association; Roderick and Solange MacArthur Justice Center;
   National Associate for Public Defense; National Legal Aid and Defender
Association; National Association of Criminal Defense Lawyers; Former Federal
                               and State Judges,

                 lllllllllllllllllllllAmici on Behalf of Petitioner.
                                      ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                          Submitted: January 17, 2017
                            Filed: January 18, 2017
                                  [Published]
                                ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________
PER CURIAM.

      This is an appeal from the district court’s order denying Mark Christeson’s
motion to reopen a final judgment dismissing his habeas corpus application as
untimely. Christeson is under a sentence of death in Missouri, and his execution is
scheduled for January 31, 2017. We remand the case to the district court for a limited
evidentiary hearing.

      Christeson was convicted of three counts of capital murder in Missouri and
sentenced to death. The Missouri Supreme Court affirmed the convictions and
sentences. State v. Christeson, 50 S.W.3d 251 (Mo. 2001). After Christeson sought
post-conviction relief in Missouri state court, a state circuit court denied the motion,
and the Missouri Supreme Court affirmed. Christeson v. State, 131 S.W.3d 796 (Mo.
2004).

       The federal district court, on July 2, 2004, then appointed two attorneys to
represent Christeson in federal habeas corpus litigation. Counsel first met with
Christeson on May 27, 2005, and filed a petition on August 5, 2005. As it turns out,
the time for filing a timely habeas petition expired in April 2005, but counsel assert
that they miscalculated the deadline and believed that the petition was timely filed in
August 2005. The district court dismissed Christeson’s habeas petition as untimely,
and this court denied an application for a certificate of appealability.

       Several years later, two new attorneys who now represent Christeson moved
for substitution of counsel. New counsel sought to file a motion under Federal Rule
of Civil Procedure 60(b) to reopen the final judgment on the ground that the statute
of limitations should have been equitably tolled. The Supreme Court ultimately ruled
that substitution was required, Christeson v. Roper, 135 S. Ct. 891 (2015) (per
curiam), and we remanded the case to the district court with directions to grant the
motion for substitution. In its decision, the Supreme Court observed that “Christeson

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faces a host of procedural obstacles to having a federal court consider his habeas
petition,” including a requirement to demonstrate that “extraordinary circumstances
justify the reopening of a final judgment.” Id. at 895-96 (alterations and quotation
marks omitted).

       The district court on remand denied Christeson’s motion under Rule 60(b) to
reopen the final judgment. In concluding that Christeson failed to show
“extraordinary circumstances,” the district court rejected Christeson’s contention that
original counsel had abandoned him. The court relied on actions taken by original
counsel after the expiration of the filing deadline in April 2005—i.e., between May
27, 2005, when they first met with Christeson, and June 8, 2007, a date shortly after
this court denied a certificate of appealability on the district court’s ruling that the
petition was untimely.

        We granted a certificate of appealability to review the district court’s denial of
relief under Rule 60(b). Christeson argues on appeal that the district court erred in
its ruling on abandonment by relying entirely on actions taken by original counsel
after the deadline for filing a timely habeas petition, while making no inquiry into
counsel’s performance before the deadline expired. Christeson also complains that
the court accepted explanations given by original counsel for the tardy filing without
providing an opportunity to test their credibility. The State responds that original
counsel’s untimely filing was the result of a miscalculation based on colorable
arguments under then-existing law, and that counsel’s mistake or negligence was
simply not abandonment.

       Without expressing a view at this time on the district court’s conclusion, we
think it prudent under the circumstances for the district court to develop the record
on the actions of original counsel so that a decision on Christeson’s allegation of
abandonment is based on a more complete understanding of the facts. The Supreme
Court, after noting that original counsel did not meet with Christeson until more than

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six weeks after his petition was due, cited a “legal ethics expert” who opined that “if
this was not abandonment, I am not sure what would be.” 135 S. Ct. at 892. The
record elsewhere, however, includes a filing from original counsel stating that two
to three months after their appointment in July 2004, counsel received voluminous
record materials concerning Christeson’s case. Original counsel wrote that they
“thoroughly reviewed these documents, contacted appellate counsel regarding issues
raised at the trial level and investigated potential claims” before meeting with
Christeson in May 2005. R. Doc. 73, at 8. The district court on remand made no
findings of fact concerning the pre-deadline activity of original counsel or the
credibility of their explanations for missing the filing deadline in 2005. A limited
evidentiary hearing and supplemental findings of fact would facilitate resolution of
Christeson’s appeal. Cf. Cody v. Hillard, 139 F.3d 1197, 1200 (8th Cir. 1998).

       Accordingly, we remand the case to the district court with directions to
convene promptly a limited evidentiary hearing on the question of abandonment and
to certify to this court its findings of fact and any additional conclusions of law. We
retain jurisdiction over the appeal during this limited remand. See, e.g., United States
v. Aguilar, 743 F.3d 1144, 1151 (8th Cir. 2014). Christeson need not file the reply
brief due on January 20, and the motion for leave to file an overlength reply brief is
denied as moot.
                          ______________________________




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