                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROWAN BROOKS,                            No. 12-17607
            Petitioner-Appellant,
                                           D.C. No.
                v.                      1:11-cv-01315-
                                           LJO-JLT
JAMES A. YATES, Warden,
             Respondent-Appellee.          OPINION


     Appeal from the United States District Court
         for the Eastern District of California
     Lawrence J. O’Neill, District Judge, Presiding

                 Argued and Submitted
      January 5, 2016—San Francisco, California

                 Filed March 28, 2016

      Before: J. Clifford Wallace, Alex Kozinski,
     and Diarmuid F. O’Scannlain, Circuit Judges.

                Per Curiam Opinion;
            Concurrence by Judge Kozinski
2                        BROOKS V. YATES

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed in part and reversed in part the district
court’s denial of California state prisoner Rowan Brooks’s
motion for relief from judgment under Fed. R. Civ. P. 60(b)
following the dismissal of his habeas petition as untimely,
and remanded.

    The panel held that the district court did not abuse its
discretion in holding that Brooks failed to demonstrate that he
was entitled to Rule 60(b) relief under a theory of “actual
innocence.” The panel wrote that assuming arguendo that the
“Schlup gateway” is available to support a Rule 60(b) motion,
Brooks has fallen well short of raising sufficient doubt about
his guilt to undermine confidence in the result of the trial.
The panel noted further that the declarations Brooks sent to
offer as evidence of actual innocence were not “new” for
purposes of Rule 60(b).

     The panel held that the district court abused its discretion
in finding that Brooks was not abandoned by his counsel.
The panel explained that the question with respect to
Brooks’s Rule 60(b) motion is not whether his counsel,
Gregory Mitts, abandoned Brooks for purposes of equitable
tolling, but whether extraordinary circumstances prevented
Brooks from taking timely action to prevent or correct an
erroneous judgment. The panel held that the record
demonstrates that Mitts was grossly negligent in his

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     BROOKS V. YATES                         3

representation of Brooks at the time the district court ordered
Brooks to show cause why his petition should not be
dismissed as untimely.

    The panel observed that the district court did not make
findings with respect to whether Brooks acted diligently in
pursuing relief from the district court’s judgment dismissing
his petition, a requirement for relief under Rule 60(b)(6), and
remanded for the district court to make such a determination.

    Concurring, Judge Kozinski wrote separately to highlight
that 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.


                         COUNSEL

Peggy Sasso, Assistant Federal Defender, Fresno, California,
argued the cause and filed the brief for the petitioner-
appellant. With her on the brief was Heather E. Williams,
Federal Defender.

David Andrew Eldridge, Deputy Attorney General,
Sacramento, California, argued the cause and filed the brief
for the respondent-appellee. With him on the brief was
Kamala D. Harris, Attorney General of California, Michael
P. Ferrell, Senior Assistant Attorney General, and Brian G.
Smiley, Supervising Deputy Attorney General.
4                    BROOKS V. YATES

                         OPINION

PER CURIAM:

    Rowan Brooks, currently serving an indeterminate
sentence of twenty-five years to life in a California state
prison for first-degree murder, appeals from the denial of his
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b) following the district court’s dismissal of his
habeas petition as untimely. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part, reverse in part, and
remand.

                              I

     The district court did not abuse its discretion in holding
that Brooks failed to demonstrate that he was entitled to Rule
60(b) relief under a theory of “actual innocence.” “[W]here
an otherwise time-barred habeas petitioner demonstrates that
it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt, . . . his
constitutional claims [may be] heard on the merits.” Lee v.
Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc) (citing
Schlup v. Delo, 513 U.S. 298 (1995)).

    Brooks has failed to cite any cases where actual
innocence was held to constitute an “extraordinary
circumstance” for Rule 60(b)(6) purposes. Assuming
arguendo that the “Schlup gateway” is available to support a
Rule 60(b) motion, Brooks has fallen well short of raising
“sufficient doubt about [his] guilt to undermine confidence in
the result of the trial.” Schlup, 513 U.S. at 317.
                       BROOKS V. YATES                           5

     Furthermore, the declarations Brooks seeks to offer as
evidence of actual innocence were available when he filed his
initial habeas petition. Such evidence was thus not “new” for
purposes of Rule 60(b). See Hamilton v. Newland, 374 F.3d
822, 825 (9th Cir. 2004).

                                II

                                A

    “[G]ross negligence by counsel amounting to ‘virtual
abandonment’ can be an ‘extraordinary circumstance’ that
justifies [relief under] Rule 60(b)(6).” Mackey v. Hoffman,
682 F.3d 1247, 1251 (9th Cir. 2012) (alteration omitted)
(quoting Cmty. Dental Servs. v. Tani, 282 F.3d 1164,
1169–71 (9th Cir. 2002)). In such circumstances, “a petitioner
may be excused from the consequences of his attorney’s
conduct where that conduct effectively severs the principal-
agent relationship.” Foley v. Biter, 793 F.3d 998, 1002 (9th
Cir. 2015).

     Here, the district court abused its discretion in finding that
Brooks was not abandoned by his counsel, Gregory Mitts.
The district court focused its inquiry on Mitts’s performance
leading up to the habeas petition’s late filing and determined
that because Mitts’s miscalculation of the filing deadline was
“[s]imple attorney negligence,” Brooks was not entitled to
equitable tolling. This was not the proper inquiry. The
question with respect to Brooks’s Rule 60(b) motion is not
whether Mitts abandoned Brooks for purposes of equitable
tolling, an inquiry that would involve analyzing the entire
course of Brooks’s federal habeas proceedings. Cf. Rudin v.
Myles, 781 F.3d 1043, 1056–59 (9th Cir. 2014) (evaluating
the availability of equitable tolling for separate time periods
6                         BROOKS V. YATES

in post-conviction proceedings); Luna v. Kernan, 784 F.3d
640, 650–51 (9th Cir. 2015) (describing the “stop clock”
approach). Instead, the proper inquiry is whether
“extraordinary circumstances prevented [Brooks] from taking
timely action to prevent or correct an erroneous judgment,”
see Foley, 793 F.3d at 1002 (quoting Hamilton, 374 F.3d at
825)—the relevant judgment being the district court’s
ultimate dismissal of the petition.

    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. See Mackey, 682 F.3d at 1251. Mitts
neither responded to the order, nor even notified his client
that it had been issued, despite repeated inquiries from
Brooks about the status of his petition. Having received no
response to the order to show cause, the district court entered
judgment dismissing the petition as untimely.1 Mitts’s
behavior was not mere negligence, but rather virtual
abandonment—“neglect so gross that it is inexcusable” and
thus “vitiat[es] the agency relationship that underlies our
general policy of attributing to the client the acts of his
attorney.” Id. (alteration in original) (quoting Cmty. Dental
Servs., 282 F.3d at 1168, 1171).




    1
     It was only through his wife that Brooks discovered that his petition
had been untimely filed and ultimately dismissed. In response to Brooks’s
subsequent chastisement of Mitts and demand that Mitts rectify the
situation, Mitts incorrectly “explained that the statute of limitations for
filing the petition [was] jurisdictional and there was nothing that could be
done to cure the late filing.”
                     BROOKS V. YATES                         7

                              B

    Even where a petitioner is abandoned by counsel, the
petitioner must also show that he diligently pursued his rights
before relief can be granted under Rule 60(b)(6). See
Gonzalez v. Crosby, 545 U.S. 524, 537–38 (2005); Foley,
793 F.3d at 1004.

    Here, the district court did not make findings with respect
to whether Brooks was reasonably diligent. The State argues
that Brooks is not entitled to relief under Rule 60(b)(6)
because Brooks found out about the final order dismissing his
habeas petition as untimely within three days of the entry of
judgment, yet did not invoke available remedies such as a
Rule 59(e) motion or appeal.

    Reasonable diligence “does not require an overzealous or
extreme pursuit of any and every avenue of relief”; instead,
it “requires the effort that a reasonable person might be
expected to deliver under his or her particular circumstances.”
Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). On
remand the district court must determine whether Brooks
acted diligently in pursuing relief from the district court’s
judgment dismissing his petition.

                             III

    We grant Brooks’s motion to take judicial notice of state
court trial documents but deny it with respect to letters
received from counsel and drafts of letters sent to counsel.

  AFFIRMED in part, REVERSED in part, and
REMANDED.
8                    BROOKS V. YATES

KOZINSKI, Circuit Judge, concurring:

    I join and applaud the majority’s sound disposition. I
write separately in fulfillment of our venerable obligation “to
the public [to issue] a civil reprehension of advocates, where
there appeareth cunning counsel [or] gross neglect.” Francis
Bacon, Essays, Civil and Moral in 3 Harvard Classics 7, 139
(Charles W. Eliot ed., 1909). As the principal opinion
demonstrates, 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. In doing so, he jeopardized his client’s chance to
obtain federal habeas relief. Maj. at 6. 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. See Attorney Search: Gregory
Henrick Mitts - #71981, State Bar of California,
http://members.calbar.ca.gov/fal/Member/Detail/71981 (last
visited Mar. 7, 2016).

     The facts are even worse than one would gather from
reading the majority opinion. After Mitts was retained in
March 2010, Brooks apparently sent a letter (not in the
record) suggesting how the case might be handled. In
October, Mitts sent an imperious response admonishing
Brooks not to “micromanage” the case from prison. The
letter also mentioned offhand that the California Supreme
Court had denied Brooks’s pending post-conviction relief
petition, but didn’t say when. Nevertheless, Mitts assured
Brooks that he was “aware of the time constraints attendant
to” filing his federal habeas petition.

   That turned out to be untrue. Brooks’s federal habeas
deadline expired just days after Mitts wrote to Brooks, but
                     BROOKS V. YATES                        9

Mitts sat on his thumbs. Over the next year, Mitts
systematically ignored a stream of letters that Brooks sent
inquiring about the status of his case. In May 2011, Brooks
wrote to Mitts pointing out his “lack of regular
communication” and asking Mitts to call him at the prison.
Brooks wrote again the following month, explaining that
Mitts’s silence was “extremely frustrating.” Having heard
nothing, Brooks wrote yet again in July. To facilitate a
response, Brooks enclosed questions to which Mitts could
provide “yes/no” answers and brief explanations. Brooks
begged Mitts to “PLEASE ANSWER THESE QUESTIONS
AND MAIL THEM . . . WITHIN 2 WEEKS.” Brooks
continued to send letters to Mitts approximately once a month
over the next four months. In August, he reminded Mitts of
his responsibility to “be in contact and communicate with
[your] client” and mentioned that he had been waiting
“almost a year” for responses to his “11 previous letters.” In
October, Brooks sent Mitts an “urgent” letter imploring him
to communicate, even if it meant referring him to a paralegal.

    In August 2011, ten months after the deadline expired,
Mitts finally deigned to file a federal habeas petition,
apparently without notifying Brooks. When the district court
issued an order to show cause as to why the petition shouldn’t
be dismissed as untimely, Mitts didn’t file a response or
notify Brooks of the order. Mitts later explained that he did
not respond to the show-cause order because he couldn’t
contest the court’s untimeliness finding. When the magistrate
judge recommended that the petition be dismissed, Mitts
didn’t object. The district court thus entered final judgment
on a habeas petition that Brooks didn’t even know had been
filed on his behalf. Mitts has never explained why he missed
the filing deadline by almost a year, or why he did not notify
10                    BROOKS V. YATES

his client immediately of the default and subsequent court
orders.

    Lawyers make mistakes, including missing deadlines. It
is nothing to be proud of but it does happen from time to time
and doesn’t usually amount to misconduct. But lawyers have
a responsibility to communicate with their clients and keep
them reasonably apprised of the status of their cases. They
must also notify them promptly of significant developments,
which, of course, include the sinking of the case. The client
can then make an informed choice whether to continue with
the lawyer who caused the default or hire another lawyer who
can effectively argue the first lawyer’s ineptitude.

    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. Mitts’s actions consumed countless hours of this
court’s and the district court’s time in dealing with his
obstinate incompetence. If Mitts was so lackadaisical in
Brooks’s case, we can only imagine what problems he’s
caused, or is likely to cause, other clients. 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.

   I am unaware of any disciplinary action currently
underway to address what appears to have been misconduct
by Mitts. The State Bar of California may not yet be aware
of Mitts’s behavior. Perhaps now it will be.
