                                                                       FILED
                            FOR PUBLICATION                             FEB 27 2012

                                                                    MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                          FOR THE NINTH CIRCUIT



ROBERT CHARLES TOWERY,                         No. 12-15071

            Petitioner - Appellant,            D.C. No. 2:03-cv-00826-ROS

  v.
                                               OPINION
CHARLES RYAN; CHARLES
GOLDSMITH, Warden, Arizona State
Prison Central Comples-Florence; TERRY
L. GODDARD, Arizona State Attorney
General; DORA B. SCHRIRO, Director of
the Arizona Department of Corrections,

            Respondents - Appellees.



                 Appeal from the United States District Court
                          for the District of Arizona
                Roslyn O. Silver, Chief District Judge, Presiding

                   Argued and Submitted February 27, 2012
                              Phoenix, Arizona

                                       Filed

Before: Mary M. Schroeder, Raymond C. Fisher and N. Randy Smith, Circuit
Judges.

PER CURIAM:
      Robert Towery was convicted of murder and sentenced to death in 1992.

After pursuing direct review and seeking postconviction relief in state court, he

filed a pro se habeas petition in federal district court. The district court appointed

counsel, who filed an amended federal habeas petition raising eight substantive

claims of constitutional error as well as numerous distinct allegations of counsel

ineffectiveness. Counsel did not, however, include Towery’s fully exhausted

Eddings-Tennard claim in the amended petition. See Eddings v. Oklahoma, 455

U.S. 104 (1982); Tennard v. Dretke, 542 U.S. 274 (2004). The district court

denied the petition, and we affirmed. See Towery v. Schriro (Towery II), 641 F.3d

300 (9th Cir. 2010), cert. denied, 132 S. Ct. 159 (2011).

      Towery subsequently filed a motion for relief from judgment seeking the

opportunity to litigate the Eddings-Tennard issue as a new claim. He 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. He proposed a new rule under

which abandonment by counsel would serve as an equitable exception to the bar on

second or successive petitions. The district court denied the motion.

      We affirm. We need not decide whether abandonment by counsel can serve

as an exception to the bar on second or successive petitions because, like the


                                           2
district court, we conclude that Towery was not abandoned. Counsel did not

engage in “egregious” professional misconduct, Holland v. Florida, 130 S. Ct.

2549, 2563-64 (2010), or leave Towery “without any functioning attorney of

record,” Maples v. Thomas, 132 S. Ct. 912, 927 (2012). Accordingly, we need not

decide whether Towery’s attorney was negligent in failing to raise a colorable

Eddings-Tennard claim. We hold that the district court did not abuse its discretion

by denying Towery’s motion.

                                 I. B ACKGROUND

      Towery was convicted of first-degree murder, armed robbery, first-degree

burglary, kidnapping, theft and attempted theft in 1992. See Towery II, 641 F.3d at

303. He was sentenced to death. See id. His execution is scheduled to take place

on March 8, 2012.

A.    Sentencing Court

      At sentencing, Towery presented evidence, through the testimony of his

sisters, that his mother was physically and emotionally abusive when he was a

child. The sentencing court concluded that Towery’s difficult childhood was not a

mitigating circumstance because Towery could not show that it had an effect on his

behavior that was beyond his control or rose to the level of a mental impairment:




                                         3
                   I have heard and considered the evidence concerning
            the defendant’s family background, the manner in which
            Mr. Towery was raised by his mother. And certainly no
            one would wish such a condition upon anyone. However,
            a difficult family background, in and of itself, is not a
            mitigating circumstance. If it were, nearly every defendant
            could point to some circumstance in his or her background
            that would call for some mitigation.
                   A difficult family background is a relevant mitigating
            circumstance, if a defendant can show that something in
            that background had an [e]ffect or impact on his behavior
            that was beyond the defendant’s control. I do not believe
            there was anything in this case that was beyond the
            defendant’s control.
                   Although he might not have received the interplay
            and nurturing that he would have liked to have had and
            needed from his mother, I have to look at his two siblings,
            who evidence nothing concerning drug use, and have
            managed to grow up being relatively stable people in the
            community, and contributing members of society.
                   Therefore, the fact that the defendant had a
            dysfunctional relationship with his mother, and being
            subject to emotional abuse, is not a mitigating
            circumstance, because it amounts to a mere character or
            personal – personality disorder, and does not rise to the
            level of a mental impairment.

      The sentencing court then weighed the mitigating circumstances that it

found to exist against the aggravating circumstances and imposed a death sentence:

                  The mitigating circumstances that I have found to
            exist that merit weight and consideration are the
            impairment of the defendant’s capacity to conform his
            conduct to the law due to drug use, which I have given little
            weight, and the sentence given to his co-defendant, to
            which I have given great weight.


                                         4
                    I have also considered the defendant’s family
             background, the manner in which he was raised. I have
             considered Mr. Towery’s character, propensities, record,
             and circumstances of the offense which would constitute
             mitigation.
                    I have considered whether or not this case presents
             circumstances that are so shocking or repugnant, that the
             murder stands out above the norm of first degree murder,
             and whether the background of the defendant sets him apart
             from the usual murderer.
                    In considering the existence of the three aggravating
             circumstances, and balancing them against the mitigating
             circumstances, I find the mitigating circumstances which do
             exist are not significantly substantial to call for leniency.

      It is unclear from the transcript whether the sentencing court ultimately

considered Towery’s difficult childhood in imposing sentence. On the one hand,

the court expressly found that Towery’s childhood was not a mitigating

circumstance, and, consistent with that determination, the court did not mention

Towery’s childhood when it listed the mitigating circumstances it found to exist.

On the other hand, the court said that it “also considered the defendant’s family

background, the manner in which he was raised” and considered “whether the

background of the defendant set[] him apart from the usual murderer,” suggesting

that the court may have included this evidence in the sentencing calculus after all.

B.    Arizona Supreme Court




                                          5
      On direct appeal, Towery argued that the sentencing court violated Lockett v.

Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Penry

v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds by Atkins v.

Virginia, 536 U.S. 304 (2002), when it “determined that the defendant had to show

that his background had an [e]ffect or impact on his behavior, and since he did not,

rejected that evidence as a mitigating factor.” He argued that the sentencing court

violated Eddings’ fundamental principle that “there need not be a nexus between

mitigating evidence such as child abuse with the offense.”

      The Arizona Supreme Court rejected Towery’s argument. See State v.

Towery (Towery I), 920 P.2d 290, 310-11 (Ariz. 1996). The court concluded that

the sentencing court had properly considered the absence of a causal nexus

between Towery’s difficult childhood and the crime only as a means of weighing

the evidence, not as a means of discounting it as a matter of law:

                    We independently weigh the mitigating evidence
             against the aggravating circumstances to determine whether
             leniency is called for. . . .
                    The trial judge considered evidence of Defendant’s
             abusive family background and did not find mitigating
             value in it. Citing a line of Supreme Court cases requiring
             courts to consider family history for independent mitigating
             w eig h t, D efen d ant calls the judge’s finding
             unconstitutional. Although the judge rejected the evidence
             as a mitigating factor because he failed to establish a nexus



                                          6
between his family background and his crime, Defendant
argues that the judge violated the law.
        Defendant misconstrues the Supreme Court cases
culminating in Penry v. Lynaugh, 492 U.S. 302 (1989).
They hold only that “a sentencer may not be precluded
from considering, and may not refuse to consider, any
relevant mitigating evidence offered by the defendant as a
basis for a sentence less than death.” Id. at 318. Having
considered family background during the penalty phase, the
sentencer must give the evidence such weight that the
sentence reflects a “reasoned moral response” to the
evidence. Id. at 319. The sentencer therefore must
consider the defendant’s upbringing if proffered but is not
required to give it significant mitigating weight. How
much weight should be given proffered mitigating factors
is a matter within the sound discretion of the sentencing
judge.
        We have held that a difficult family background is
not always entitled to great weight as a mitigating
circumstance. State v. Wallace, 160 Ariz. 424, 426-27, 773
P.2d 983, 985-86 (1989) (“A difficult family background is
a relevant mitigating circumstance if a defendant can show
that something in that background had an effect or impact
on his behavior that was beyond the defendant’s control.”),
cert. denied, 494 U.S. 1047 (1990). We have since
reaffirmed that family background may be a substantial
mitigating circumstance when it is shown to have some
connection with the defendant’s offense-related conduct.
        Defendant has failed to connect his family
background to his criminal conduct. Defendant’s sisters
testified at the sentencing hearing that he was a small child
with dyslexia and a bed-wetting problem and that he was
physically and mentally abused by his overweight and
diabetic mother. One sister related that his mother forced
him to kneel in a box of rice when he complained that his
leg hurt after falling from a wagon, and that she gagged him
with a sock and bound his hands in the back of the car


                             7
             while on a family trip. These events, however, occurred
             when Defendant was young, years before he robbed and
             murdered at the age of 27. They do not prove a loss of
             impulse control or explain what caused him to kill. The
             trial judge considered this background and gave it little or
             no mitigating value. We do not disagree. . . .
                     We have examined the record for mitigating
             circumstances and find the rather sparse evidence
             insufficient to overcome the weight of the aggravating
             circumstances. We therefore affirm the death sentence.

Towery I, 920 P.2d at 310-11 (footnotes and some citations omitted).

C.    Federal Habeas Proceedings

       Following Towery’s unsuccessful appeal to the Arizona Supreme Court,

Daniel Maynard was appointed to represent Towery in state postconviction relief

proceedings. In 2003, following the denial of state postconviction relief, the

federal district court appointed Maynard to represent Towery in his federal habeas

proceedings. The appointment order provided for the filing of an amended federal

habeas petition, and said that “[t]he Amended Petition shall include and set forth

all known claims of constitutional error or deprivation entitling Petitioner to

federal habeas relief,” citing Rule 2(c) of the Rules Governing § 2254 Cases, 28

foll. U.S.C. § 2254. Maynard filed an amended petition raising eight claims and

numerous sub-claims, but not Towery’s Eddings-Tennard claim. The district court




                                           8
denied the petition, and we affirmed. See Towery II, 641 F.3d 300 (9th Cir. 2010),

cert. denied, 132 S. Ct. 159 (2011).

D.    Rule 60(b)(6) Motion

      Towery subsequently filed a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b)(6), asking the district court reopen his habeas case

and adjudicate his Eddings-Tennard claim on the merits. Towery argued that there

were grounds to raise this new claim in a Rule 60 motion, because Maynard had

abandoned him by failing to raise the claim earlier. He argued that abandonment

was a proper basis for relief under Rule 60(b)(6), see Lal v. California, 610 F.3d

518, 524 (9th Cir. 2010); Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168-71 (9th

Cir. 2002), as well as a persuasive reason to avoid the statutory bar on second or

successive habeas petitions.

      The district court denied the motion, citing Gonzalez v. Crosby, 545 U.S.

524 (2005), for the proposition that “Rule 60(b) may not be used to avoid the

prohibition against second or successive petitions set forth in 28 U.S.C.

§ 2244(b).” Order Den. Mot. Relief J., Jan. 9, 2012, at 2; see Gonzalez, 545 U.S. at

531 (“Using Rule 60(b) to present new claims for relief from a state court’s

judgment of conviction – even claims couched in the language of a true Rule 60(b)

motion – circumvents AEDPA’s requirement that a new claim be dismissed unless


                                          9
it relies on either a new rule of constitutional law or newly discovered facts.”).1

According to the district court, Gonzalez barred Towery’s claim:

                    In Gonzalez, the Court explained that an appropriate
             Rule 60(b) motion “attacks, not the substance of the federal
             court’s resolution of a claim on the merits, but some defect
             in the integrity of the federal habeas proceedings.” The
             Court specifically noted that “an attack based on the
             movant’s own conduct, or his habeas counsel’s omissions
             . . . ordinarily does not go to the integrity of the
             proceedings, but in effect asks for a second chance to have
             the merits determined favorably.” . . .
                    Here, Petitioner is seeking relief from the judgment
             denying his habeas petition based on habeas counsel’s
             omissions. Therefore, under Gonzale[z], Petitioner’s Rule
             60(b) motion is the equivalent of a successive petition,
             which this Court cannot entertain absent authorization from
             the Ninth Circuit Court of Appeals. See 28 U.S.C.
             § 2244(b)(3).

Order Den. Mot. Relief J., Jan. 9, 2012, at 3-4 (first alteration in original) (some

citations omitted) (quoting Gonzalez, 545 U.S. at 532 & n.5).

      The district court added that, even assuming abandonment by habeas counsel

could undermine the integrity of habeas proceedings such that Towery’s Rule

60(b) motion would not constitute a second or successive petition, Maynard’s

conduct did not constitute abandonment:




      1
       AEDPA refers to the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214.

                                          10
             In a case decided prior to the ruling in Gonzalez, the
             Second Circuit denied the petitioner’s request for relief
             under Rule 60(b) based on habeas counsel’s performance.
             Harris v. United States, 367 F.3d 74 (2d Cir. 2004). The
             court held that counsel’s failure to raise certain claims – a
             failure which counsel himself was willing to swear
             constituted ineffective assistance – did not undermine the
             integrity of the proceedings because counsel’s performance
             did not reach a level of deficiency that could be deemed
             “abandonment” of the petitioner’s case. Id. at 81-82. The
             court then explained that to prove abandonment, “a Rule
             60(b)(6) movant must show that his lawyer agreed to
             prosecute a habeas petitioner’s case, abandoned it, and
             consequently deprived the petitioner of any opportunity to
             be heard at all.” Id. at 81.
                    Petitioner has not demonstrated that habeas counsel’s
             performance descended to a level where Petitioner was
             abandoned and deprived of an opportunity to be heard.
             Despite failing to raise a Tennard claim, Maynard
             presented eight substantive claims of constitutional error as
             well as numerous distinct allegations of counsel
             ineffectiveness. He also pursued an innocence theory based
             on previously untested crime scene evidence. The failure
             to raise a claim, even a viable one, does not amount to
             abandonment. On this record, the Court finds that
             Maynard’s failure to present the Tennard claim did not
             constitute abandonment or deprive Petitioner of any
             opportunity to be heard concerning the constitutionality of
             his conviction and sentence.

Order Den. Mot. Relief J., Jan. 9, 2012, at 4-5.

      The district court denied Towery’s motion, and Towery timely appealed.

                  II. J URISDICTION AND S TANDARD OF R EVIEW




                                          11
      We have jurisdiction under 28 U.S.C. § 1291. “We review the district

court’s denial of a Rule 60(b)(6) motion for an abuse of discretion.” Delay v.

Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007); see also Martella v. Marine Cooks

& Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam) (“60(b) motions

are addressed to the sound discretion of the district court.”). A court abuses its

discretion when it fails to identify and apply the correct legal rule to the relief

requested, or if its application of the correct legal standard was illogical,

implausible or without support in inferences that may be drawn from the facts in

the record. See United States v. Hinkson, 585 F.3d 1247, 1262-63 (9th Cir. 2009)

(en banc). In addition, relief under Rule 60(b)(6) requires the moving party to

make a showing of “extraordinary circumstances.” Gonzalez, 545 U.S. at 535.

“Such circumstances will rarely occur in the habeas context,” and “Rule 60(b)

proceedings are subject to only limited and deferential appellate review.” Id.

                                   III. D ISCUSSION

      Towery argues that there were extraordinary circumstances here because the

statutory bar on second or successive habeas petitions, 28 U.S.C. § 2244(b), should

be read to include an equitable exception for attorney abandonment. He relies on

two cases construing abandonment as a basis for relief from two other procedural

bars governing federal habeas proceedings – Holland v. Florida, 130 S. Ct. 2549,


                                           12
2563-64 (2010), holding that habeas counsel’s professional misconduct, including

abandonment, can “amount to egregious behavior and create an extraordinary

circumstance that warrants equitable tolling,” and Maples v. Thomas, 132 S. Ct.

912, 922-27 (2012), holding that attorney abandonment can constitute “cause” for

excusing a procedural default. He contends that a similar exception should be read

into the second-or-successive-petition bar and that Maynard abandoned him by

failing to present his fully exhausted Eddings-Tennard claim in his amended

federal habeas petition. According to Towery, Maynard “breached the duty of

loyalty and thereby voided the agency relationship, thereby causing the

abandonment that Mr. Towery contends should allow him to raise the Tennard

issue in a motion under Rule 60(b)(6) unfettered by the second-or-successive-




                                        13
petition bar.” He says that “failing to raise a plainly meritorious ground for

avoiding the death sentence” was inconsistent with the duty of loyalty.2

A.    Abandonment

      We need not decide whether there is an attorney abandonment exception to

the statutory bar on second or successive petitions, because we conclude that

Towery was not abandoned by counsel in this case.

      A federal habeas petitioner – who as such does not have a Sixth Amendment

right to counsel – is ordinarily bound by his attorney’s negligence, because the

attorney and the client have an agency relationship under which the principal is

bound by the actions of the agent. See Coleman v. Thompson, 501 U.S. 722, 753

(1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for excusing

procedural default] because the attorney is the petitioner’s agent when acting, or


      2
        Before AEDPA imposed the statutory bar, a petitioner’s ability to file a
second or successive petition was governed by the abuse of the writ doctrine, under
which a court could consider a second or subsequent habeas application when the
petitioner showed cause and prejudice or a fundamental miscarriage of justice. See
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). The parties disagree over
whether the cause and prejudice standard survives AEDPA. Compare United
States v. Lopez, 577 F.3d 1053, 1063 n.8 (9th Cir. 2009) (holding that “the
meaning of ‘second or successive’ is informed by the abuse-of-the-writ doctrine”
(citing Panetti v. Quarterman, 551 U.S. 930 (2007))), with United States v.
Roberson, 194 F.3d 408, 411 (3d Cir. 1999) (“AEDPA, however, replaced the
abuse-of-the writ doctrine articulated in McCleskey.”), and Burris v. Parke, 95
F.3d 465, 469 (7th Cir. 1996) (en banc) (“The doctrine of abuse of the writ is
defunct.”).

                                          14
failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk

of attorney error.’” (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))); see

also Maples, 132 S. Ct. at 922 (“Negligence on the part of a prisoner’s

postconviction attorney does not qualify as ‘cause’ . . . because the attorney is the

prisoner’s agent, and under ‘well-settled principles of agency law,’ the principal

bears the risk of negligent conduct on the part of his agent.” (quoting Coleman,

501 U.S. at 753-54)); cf. Holland, 130 S. Ct. at 2564 (holding that “a ‘garden

variety claim’ of attorney negligence” “does not warrant equitable tolling” of the

one-year statute of limitations governing federal habeas petitions (quoting Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))); Gonzalez, 545 U.S. at 532 n.5

(observing that a habeas petitioner’s Rule 60 motion “based on the movant’s own

conduct, or his habeas counsel’s omissions, . . . ordinarily does not go to the

integrity of the proceedings,” and thus is subject to the bar on second or successive

habeas petitions).

       An attorney who “abandons his client without notice,” however, “sever[s]

the principal-agent relationship” and “no longer acts, or fails to act, as the client’s

representative.” Maples, 132 S. Ct. at 922-23. “His acts or omissions therefore

‘cannot fairly be attributed to [the client].’” Id. at 923 (alteration in original)

(quoting Coleman, 501 U.S. at 753).


                                            15
      Towery relies on these principles here. He points out, correctly, that

Maynard owed him a duty of loyalty. See Webb v. Gittlen, 174 P.3d 275, 279

(Ariz. 2008) (“Attorneys are fiduciaries with duties of loyalty, care, and obedience,

whose relationship with the client must be one of ‘utmost trust.’” (quoting In re

Piatt, 951 P.2d 889, 891 (Ariz. 1997))); In re Estate of Shano, 869 P.2d 1203, 1210

(Ariz. Ct. App. 1993) (“A lawyer’s overriding duty of loyalty to a client is a basic

tenet of the attorney-client relationship. Inherent in this principle is the concept

that no other interest or consideration should be permitted to interfere with the

lawyer’s loyalty to his client.”); Arizona Rules of Professional Conduct R. 1.7;

Restatement (Third) of Law Governing Lawyers § 16 (2000).

      Towery is also correct that, under general agency principles, breach of the

duty of loyalty can terminate an agency relationship. See State v. DiGiulio, 835

P.2d 488, 492 (Ariz. Ct. App. 1992) (“Violating the duty of loyalty, or failing to

disclose adverse interests, voids the agency relationship.”); Restatement (Second)

of Agency § 112 (1958) (“Unless otherwise agreed, the authority of an agent

terminates if, without knowledge of the principal, he acquires adverse interests or if

he is otherwise guilty of a serious breach of loyalty to the principal.”).

      Towery, however, has not shown severance of his attorney-client

relationship with Maynard. First, Towery has not shown that Maynard committed


                                           16
a “serious breach of loyalty.” Towery does not argue, and the record does not

suggest, that Maynard permitted any interest or consideration to interfere with his

loyalty to Towery. Towery also has presented no authority for the proposition that

counsel’s failure to raise a colorable habeas claim amounts to a serious breach of

the duty of loyalty that severs the attorney-client agency relationship. We are not

aware of any such authority.

      Second, Towery also has not shown abandonment. “Withdrawal, whether

proper or improper, terminates the lawyer’s authority to act for the client,” and

“[t]he client is not bound by acts of a lawyer who refuses to represent the client.”

Restatement (Third) of Law Governing Lawyers § 31 cmt. f (2000) (citing

Restatement (Second) of Agency § 118 (1958) (“Authority terminates if the

principal or the agent manifests to the other dissent to its continuance.”)); see also

Maples, 132 S. Ct. at 922-23. Here, however, Maynard did not refuse to represent

Towery or renounce the attorney-client relationship. On the contrary, he diligently

pursued habeas relief on Towery’s behalf, although omitting a colorable

constitutional claim from Towery’s amended petition.

      Towery’s attempts to compare his case to Holland and Maples are therefore

unpersuasive. The issue in Holland was whether the petitioner was entitled to

equitable tolling. A petitioner is entitled to equitable tolling only “if he shows ‘(1)


                                           17
that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way’ and prevented timely filing.” Holland, 130 S. Ct. at

2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court held

that, although garden variety attorney negligence is not an extraordinary

circumstance, “professional misconduct . . . could . . . amount to egregious

behavior and create an extraordinary circumstance that warrants equitable tolling.”

Id. at 2563.

      The Court then found the extraordinary circumstance requirement was likely

satisfied in the case before it. Counsel’s failure to file the petitioner’s petition on

time and ignorance of the filing deadline “suggest[ed] simple negligence.” Id. at

2564. But counsel’s failures went much further, violating “fundamental canons of

professional responsibility” requiring attorneys to “perform reasonably competent

legal work, to communicate with their clients, to implement clients’ reasonable

requests, to keep their clients informed of key developments in their cases, and

never to abandon a client.” Id. Counsel’s failures also caused the petitioner to lose

“what was likely his single opportunity for federal habeas review of the lawfulness

of his imprisonment and of his death sentence.” Id. at 2565. On that record, the

Court concluded that counsel’s failures were likely sufficient to establish the

extraordinary circumstance prong of equitable tolling. See id. at 2564-65; see also


                                           18
id. at 2568 (Alito, J., concurring) (“Common sense dictates that a litigant cannot be

held constructively responsible for the conduct of an attorney who is not operating

as his agent in any meaningful sense of that word.”).

      In Maples, the issue was whether counsel’s abandonment could serve as

cause for lifting the bar on procedural default. See Maples, 132 S. Ct. at 922.

Cause exists where something external to the petitioner, something that cannot

fairly be attributed to him, impeded his efforts to comply with the state’s

procedural rule. See id. Negligence on the part of a petitioner’s postconviction

attorney does not qualify as cause, because the attorney is the petitioner’s agent,

and the principal bears the risk of negligent conduct on the part of his agent. See

id. When an attorney abandons his client without notice, however, the

principal-agent relationship is severed, and the attorney’s acts or omissions can no

longer be fairly be attributed to the client. See id. at 922-23.

      In Maples, the standard for abandonment was satisfied. The petitioner’s pro

bono counsel, two Sullivan & Cromwell attorneys, left Sullivan & Cromwell’s

employ months before the state procedural default occurred, and no other lawyer –

local counsel or other Sullivan & Cromwell attorneys – was serving as the

petitioner’s agent in any meaningful sense of the word. See id. at 924-27. As a




                                           19
result, the petitioner was “left without any functioning attorney of record.” Id. at

927.

       Towery’s case does not compare to Holland and Maples. At most, Towery

alleges that Maynard was negligent in failing to raise a colorable Eddings-Tennard

claim in Towery’s amended federal habeas petition. In contrast to Holland,

however, Towery makes no claim that Maynard performed incompetent legal

work, failed to communicate with him, refused to implement his reasonable

requests or failed to keep him informed of key developments in his case. Nor, in

contrast to Maples, did Maynard cease serving as Towery’s agent in any

meaningful sense of that word or leave Towery without any functioning attorney of

record. Towery’s claim of abandonment is therefore unpersuasive.

       Furthermore, as the district court noted, Maynard presented eight substantive

claims of constitutional error as well as numerous distinct allegations of counsel

ineffectiveness. He also pursued an innocence theory based on previously untested

crime scene evidence. Order Den. Mot. Relief J., Jan. 9, 2012, at 4-5.

Consequently, the court found that “[o]n this record, . . . Maynard’s failure to

present the Tennard claim did not constitute abandonment or deprive Petitioner of

any opportunity to be heard concerning the constitutionality of his conviction.” Id.

at 5. Even if the district court’s finding regarding abandonment was incorrect, it


                                          20
was not “illogical, implausible, or without support in inferences that may be drawn

from the facts in the record.” Hinkson, 585 F.3d at 1263.

B.    Strength of the Eddings Claim

      Our conclusion is reinforced when we consider Towery’s Eddings-Tennard

claim applying AEDPA’s governing standards.

      Towery’s federal habeas petition is governed by AEDPA. See Towery II,

641 F.3d at 306. Under AEDPA, an application for a writ of habeas corpus may

not be granted unless the last reasoned state court decision adjudicating the claim

on the merits was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      Towery relies exclusively on the first of these prongs, arguing that the

decisions of the Arizona courts were “contrary to” Supreme Court precedent in

Lockett, Eddings and Penry. A state court decision is “contrary to” federal law if

the court either “arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law,” or arrives at a different result on facts that are

“materially indistinguishable from a relevant Supreme Court precedent.” Williams

v. Taylor, 529 U.S. 362, 405, 408 (2000). “We review the state court’s last


                                           21
reasoned decision.” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010). Here,

the last reasoned decision addressing Towery’s Eddings-Tennard claim is the

decision of the Arizona Supreme Court affirming Towery’s conviction and

sentence on direct review.3

      The state supreme court’s decision is not contrary to Supreme Court

precedent. The Arizona Supreme Court recognized that “a sentencer may not be

precluded from considering, and may not refuse to consider, any relevant

mitigating evidence offered by the defendant as a basis for a sentence less than

death.” Towery I, 920 P.2d at 311 (quoting Penry, 492 U.S. at 318) (internal

quotation marks omitted). It recognized that, “[h]aving considered family

background during the penalty phase, the sentencer must give the evidence such

weight that the sentence reflects a ‘reasoned moral response’ to the evidence.” Id.

(quoting Penry, 492 U.S. at 319). It also recognized that “[t]he sentencer therefore


      3
        Towery suggests we review the decisions of the sentencing court and the
state supreme court together. “When more than one state court has adjudicated a
claim, we analyze the last reasoned decision.” Barker v. Fleming, 423 F.3d 1085,
1091 (9th Cir. 2005). The AEDPA inquiry applies “to a single state court decision,
not to some amalgamation of multiple state court decisions.” Id. at 1093. We have
considered more than one decision when “the last reasoned decision adopted or
substantially incorporated the reasoning from a previous decision and, as a result, it
was reasonable for the reviewing court to look at both decisions to fully ascertain
the reasoning of the last decision.” Id. Our focus here is on the independent
review conducted by the state supreme court in the last reasoned state-court
decision.

                                          22
must consider the defendant’s upbringing if proffered but is not required to give it

significant mitigating weight. How much weight should be given proffered

mitigating factors is a matter within the sound discretion of the sentencing judge.”

Id. These were all correct statements of the law.

      The supreme court also said that “a difficult family background is not

always entitled to great weight as a mitigating circumstance”; that “family

background may be a substantial mitigating circumstance when it is shown to have

some connection with the defendant’s offense-related conduct”; and that where the

defendant fails to connect his family background to his criminal conduct, a trial

judge could give it little or no weight or value. Id. These statements too were not

contrary to Supreme Court precedent. See Schad v. Ryan, ___ F.3d ____, No.

07-99005, 2011 WL 5433763, at *14 (9th Cir. Nov. 10, 2011) (per curiam) (“The

United States Supreme Court has said that the use of the nexus test [to assess the

quality and strength of the mitigation evidence] is not unconstitutional because

state courts are free to assess the weight to be given to particular mitigating

evidence.” (citing Eddings, 455 U.S. at 114-15)), petition for reh’g en banc filed

(Nov. 23, 2011).

      The supreme court also “independently weigh[ed] the mitigating evidence

against the aggravating circumstances to determine whether leniency [wa]s called


                                          23
for.” Towery I, 290 P.2d at 310. As part of that review, the court considered

whether evidence of Towery’s difficult childhood should be given substantial

weight. See id. at 311. Agreeing with the sentencing court, it accorded this

evidence “little or no mitigating value” because Towery “failed to connect his

family background to his criminal conduct.” Id. The evidence was entitled to little

or no weight because it did “not prove a loss of impulse control or explain what

caused him to kill.” Id. These statements too were not contrary to Supreme Court

precedent.4

      One could question the wisdom of the Arizona Supreme Court’s decision to

accord Towery’s evidence little or no weight. See Lambright v. Schriro, 490 F.3d

1103, 1115 (9th Cir. 2007) (per curiam) (explaining that “evidence relating to life

circumstances with no causal relationship to the crime,” such as “a defendant’s

disadvantaged background, emotional and mental problems, and adverse history,

. . . might cause a sentencer to determine that a life sentence, rather than death at

the hands of the state, is the appropriate punishment for the particular defendant”);


      4
        Towery does not argue that the state supreme court’s finding that the
sentencing court used a nexus test as a weighing mechanism rather than as a
screening mechanism was an “unreasonable determination of the facts” under 28
U.S.C. § 2254(d)(2). See Lopez v. Schriro, 491 F.3d 1029, 1037-38 & n.2 (9th Cir.
2007) (treating the state supreme court’s determination of the sentencing court’s
actions as a question of historical fact subject to review for objective
unreasonableness under § 2254(d)(2)). We therefore do not reach that issue.

                                           24
cf. Smith v. Texas, 543 U.S. 37, 45 (2004) (per curiam) (holding that petitioner’s

evidence of a troubled childhood “was relevant for mitigation purposes”

notwithstanding the petitioner’s failure to establish a nexus between his

background and his crime); Tennard, 542 U.S. at 287 (“[W]e cannot countenance

the suggestion that low IQ evidence is not relevant mitigating evidence . . . unless

the defendant also establishes a nexus to the crime.”).

      However, the court’s reasoned and individualized decision to give Towery’s

evidence little or no weight was not contrary to Supreme Court precedent. See

Eddings, 455 U.S. at 114-15 (“The sentencer, and the Court of Criminal Appeals

on review, may determine the weight to be given relevant mitigating evidence.”);

Schad, 2011 WL 5433763, at *14 (“The United States Supreme Court has said that

the use of the nexus test [in assessing the quality and strength of the mitigation

evidence] is not unconstitutional because state courts are free to assess the weight

to be given to particular mitigating evidence”). The record supports the conclusion

that the Arizona Supreme Court gave Towery’s difficult childhood little or no




                                          25
weight as a matter of fact, after giving individualized consideration to the evidence,

rather than treating the evidence as irrelevant or nonmitigating as a matter of law.5

      Towery points out that the Arizona Supreme Court in its Towery decision

referred to State v. Wallace, 773 P.2d 983, 985-86 (Ariz. 1989), a decision we have

deemed constitutionally suspect, see Schad, 2011 WL 5433763, at *13. Towery

also points to the Arizona court’s subsequent interpretation of Towery, see State v

Hoskins, 14 P.3d 997, 1021-22 (Ariz. 2000), that suggests the court may have cited

Towery as supporting an analysis now constitutionally infirm. But this does not

require us to hold the Arizona court committed constitutional error in Towery

itself. The Arizona court’s opinion as a whole indicates the court understood

Supreme Court precedent and applied it correctly. Our review must be of the

record in Towery itself, rather than the state supreme court’s subsequent

interpretations of Towery. See Lopez v. Ryan, 630 F.3d 1198, 1203 (9th Cir. 2011)


      5
         Because we conclude that Towery’s Eddings-Tennard claim would not
satisfy § 2254(d), we do not address the constitutional merits of the claim. See
Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc) (discussing the
relationship between the AEDPA analysis under § 2254(d)(1) and the analysis of
the constitutional claim on the merits). We also do not address whether, if there
was constitutional error by the sentencing court, the supreme court’s independent
review cured it. See Richmond v. Lewis, 506 U.S. 40, 49 (1992) (holding that a
state appellate court can cure a sentencing error in a capital case when “the state
appellate court . . . actually perform[s] a new sentencing calculus”); Clemons v.
Mississippi, 494 U.S. 738, 741, 750-51 (1990). The state does not invoke the cure
doctrine or argue that the supreme court performed a new sentencing calculus here.

                                          26
(explaining that we review “the record,” to determine whether “the state court

applied the wrong standard,” and we “cannot assume the courts violated . . .

constitutional mandates” otherwise (alteration in original) (emphasis added)

(internal quotation marks omitted)). Considering Towery itself, we conclude that it

was not contrary to Supreme Court precedent – a conclusion we have noted before.

See id. at 1203-04 & n.4 (citing Towery as a decision in which the Arizona

Supreme Court “properly looked to causal nexus only as a factor in determining

the weight or significance of mitigating evidence”). Even if subsequent Arizona

Supreme Court interpretations of Towery were relevant to our analysis, Arizona’s

case law in this regard is conflicting. See State v. Sansing, 26 P.3d 1118, 1129

(Ariz. 2001) (citing Towery for the proposition that the “sentencer therefore must

consider the defendant’s upbringing if proffered but is not required to give it

significant mitigating weight.” (emphasis added) (quoting Towery, 290 P.2d at

311) (internal quotation marks omitted)), judgment vacated on other grounds by

Sansing v. Arizona, 536 U.S. 954 (2002). Indeed, Towery’s counsel conceded at

oral argument that we should not base our analysis on this conflicting Arizona case

law, but should instead confine our review to the record of Towery.

      We conclude that the district court applied the correct legal rule for the relief

requested on this claim, and the court did not make an “illogical[ or] implausible”


                                          27
determination when it concluded that Maynard’s actions did not amount to an

extraordinary circumstance warranting relief under Rule 60(b)(6). Hinkson, 585

F.3d at 1262-63; see also Gonzalez, 545 U.S. at 535. At most, Towery alleges a

claim of negligence, which falls far short of a claim of abandonment. Towery was

neither subjected to “egregious” professional misconduct, Holland, 130 S. Ct. at

2563-64, nor “left without any functioning attorney of record,” Maples, 132 S. Ct.

at 927.

                                 IV. C ONCLUSION

      In sum, even assuming attorney abandonment could constitute an exception

to the statutory bar on second or successive habeas petitions, Towery has not

shown that he was abandoned in this case. Nor has he shown a serious breach of

loyalty that might have severed his agency relationship with counsel. The district

court therefore properly treated Towery’s Rule 60 motion as a second or successive

petition and did not abuse its discretion by denying the motion. See 28 U.S.C.

§ 2244(b)(2), (b)(3)(A).

      AFFIRMED.

      Towery’s emergency motion for a stay of execution, filed February 24,

2012, is premised on the merits of his Rule 60(b)(6) motion. Given our affirmance




                                         28
of the denial of the Rule 60(b)(6) motion, Towery’s emergency motion is hereby

DENIED.




                                       29
                                     Counsel


      Jon M. Sands, Federal Public Defender; Therese M. Day (argued), Dale A.
Baich and Kelly L. Schneider, Assistant Federal Public Defenders, Phoenix,
Arizona, for petitioner-appellant.

       Thomas C. Horne, Attorney General; Kent E. Cattani, Division Chief
Counsel, Criminal Appeals/Capital Litigation Division; Jeffrey A. Zick, Section
Chief Counsel; Jon G. Anderson (argued), Assistant Attorney General, Capital
Litigation Division, Phoenix, Arizona, for respondent-appellees.




                                        30
