Towery v. Ryan

An attorney did not abandon his client by failing to raise a colorable claim on a habeas corpus petition when considering all the circumstances the attorney's behavior did not breach the duty of loyalty.

Towery appeals from the District Court decision denying his Rule 60(b)(6) motion to reopen his habeas corpus claim. Towery was convicted of first degree murder, armed robbery, burglary, kidnapping and theft. He was sentenced to death and the execution is scheduled for March 8, 2012. Towery claims that his counsel abandoned him by not bringing a colorable claim under his previously amended habeas corpus claim. The Court affirmed the lower court and decided that there was no need to decide if counsel abandonment can be an exception to the bar on successive petitions because Towery's counsel did not abandon him. The Court concluded that Towery's counsel never terminated the attorney-client relationship and diligently pursued several claims under the amended habeas claim. Towery's counsel did not engage in egregious behavior or leave Towery without a functioning attorney. Because Towery's emergency stay of execution was premised on the merits of his Rule 60(b)(6) motion, the Court denied his emergency stay of execution. AFFIRMED and DENIED