Kangas v. Ryan et al

Filing 33

REPORT AND RECOMMENDATION recommending dismissing 31 MOTION for Relief from Judgment. Signed by Magistrate Judge John Z Boyle on 5/11/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Edward Kangas,
Petitioner,

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v.

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No. CV-16-03364-PHX-JJT (JZB)
REPORT AND
RECOMMENDATION

Charles L Ryan, et al.,

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Respondents.

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TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Petitioner William Kangas has filed Motion for Relief Pursuant to Rule 60(b).

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(Doc. 31.)

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I.

Summary of Conclusion.

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Petitioner argues that he is actually innocent because other individuals could have

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placed pornographic materials on his computer without his knowledge. But Petitioner’s

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claim is nothing more than additional argument regarding claims already considered by

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the state courts and this Court. Petitioner’s claim must be dismissed because it is a

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disguised, successive § 2254 motion.

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II.

Rule 60 Motion.

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On March 16, 2018, Petitioner filed a Rule 60 Motion arguing there is “proof of

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actual innocence” in his case. (Doc. 31 at 15.) He submits “there are five (5) different

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ways that Mr. Lamm could have put the [pornographic] pictures and videos on Mr.

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Kangas’ computer.” (Id.) He asserts that the prosecution’s computer experts were not

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experts on “hacking” and had “no knowledge concerning how computers can be ‘hacked’

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or ‘manipulated.’” (Id. at 18.) He also asserts that “with the amount of pictures and

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videos allegedly found on Mr. Kangas’ computer, and given the fact that Mr. Kangas

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held a job, took care of his son and participated in activities outside his home, it is

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feasable that these pictures and videos were placed on his computer by ‘hackers’ and/or

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Mr. Lamm.” (Id. at 20.) He argues that if “trial counsel acted with the customary skill and

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diligence” and argued that Petitioner’s computer had been hacked, then Petitioner would

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not have been convicted. (Id. at 20.)

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Petitioner also includes a summary of facts and findings related to the disbarment

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of his trial counsel for conduct between November 2012 and January 2015. The Court

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notes that Petitioner’s trial and appeal concluded before 2009.

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III.

Background.

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A.

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The Court includes a recitation of the facts because they are relevant to

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Petitioner’s claim of actual innocence. The Arizona Court of Appeals found the

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following:1

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In September 2005, Kangas was experiencing difficulties accessing
digital pictures on his computer’s hard drives. Because Kangas’s coworker, A. Lamm, was experienced in repairing computer systems, Kangas
gave Lamm a loose hard drive and a computer tower containing two hard
drives on or about September 25, 2005, so Lamm could retrieve “family
pictures.” After scanning one of the disks in the tower, Lamm discovered a
large number of digital photos depicting children engaged in sexual acts.
Lamm reported the discovery to his supervisor and ultimately, Yuma police
seized the computer equipment and conducted a forensic examination of the
loose hard drive, which had at one time been connected to the computer. In
three different folders on the hard drive, police discovered seven pictures
and three digital videos that formed the basis of the indictment charging
Kangas with ten counts of sexual exploitation of a minor in violation of
A.R.S. § 13–3553(A)(2) (Supp. 2007).

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A jury convicted Kangas as charged and found each offense
involved a minor under the age of 15. The superior court sentenced Kangas
to ten mitigated ten-year consecutive flat-time prison sentences. Kangas
timely appealed.

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Facts of the Crimes.

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The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C.
§ 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012)
(rejecting argument that statement of facts in state appellate court’s opinion should not be
afforded the presumption of correctness).
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State v. Kangas, 2008 WL 3856357, at *1-2 (Ariz. Ct. App. 2008).

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B.

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On May 7, 2007, Petitioner filed an appeal. (Doc. 10-1, Ex. I, at 70.) On March 4,

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2008, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences.

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(Doc. 10-1, Ex. K, at 169.) On May 1, 2008, the mandate issued. (Doc. 10-2, Ex. L,

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at 181.)

Petitioner’s Direct Appeal.

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C.

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On May 14, 2014, Petitioner filed a Petition for Post-Conviction Relief. (Doc. 10-

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2, Ex. P, at 8.) On October 9, 2015, the trial court reviewed Petitioner’s claims and

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Petitioner’s First Post-Conviction Relief Proceeding.

denied relief. (Doc. 10-2, Ex. S, at 119.)

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Petitioner did not file for review with the Arizona Court of Appeals.

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D.

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On October 3, 2016, Petitioner filed a Petition. (Doc. 7.) On November 14, 2017,

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the Court denied the Petition. Docs. 26-27; Kangas v. Ryan, 2017 WL 5443167, at *1 (D.

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Ariz. 2017).

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Petitioner’s Federal Habeas Petition.

On February 22, 2018, Petitioner’s request for a Certificate of Appealability was

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denied by the Ninth Circuit Court of Appeals. (Doc. 30.)

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IV.

The Motion.

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Petitioner requests relief pursuant to Federal Rule of Civil Procedure 60(b)(2),

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which states that “on motion and just terms, the court may relieve a party or its legal

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representative from a final judgment, order, or proceeding for the following reasons:

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newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial [under Rule 59(b)].” Fed. R. Civ. P. 60(b)(2).

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Rule 60(b) “allows a party to seek relief from a final judgment, and request

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reopening of his case, under a limited set of circumstances.” Jones v. Ryan, 733 F.3d 825,

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833 (9th Cir. 2013) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)).2 “If the

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alleged Rule 60(b) motion asserts some ‘defect in the integrity of the federal habeas

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Rule 60(b) applies to habeas proceedings under 28 U.S.C. § 2254. Gonzalez, 545 U.S.
at 529-32
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proceedings,’ it is a legitimate Rule 60(b) motion.” United States v. Washington, 653

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F.3d 1057, 1063 (9th Cir. 2011). “On the other hand, if the motion presents a ‘claim,’ i.e.,

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‘an asserted federal basis for relief from a . . . judgment of conviction,’ then it is, in

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substance, a new request for relief on the merits and should be treated as a disguised

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§ 2255 motion.” (Id.) Interpreting Gonzalez, the court in Washington stated:

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The Court gave a number of examples of such “claims,” including: a
motion asserting “that owing to ‘excusable neglect,’ the movant’s habeas
petition had omitted a claim of constitutional error,” id. at 530-31[]
(citation omitted) (quoting Fed.R.Civ.P. 60(b)(1)); a motion to present
“newly discovered evidence” in support of a claim previously denied,
id. at 531[] (citation omitted) (quoting Fed. R. Civ. P. 60(b)(2)); a
contention “that a subsequent change in substantive law is a ‘reason
justifying relief’ from the previous denial of a claim,” id. (quoting Fed. R.
Civ. P. 60(b)(6)); a motion “that seeks to add a new ground for relief,” id.
at 532[]; a motion that “attacks the federal court’s previous resolution of a
claim on the merits,” id. (emphasis omitted); a motion that otherwise
challenges the federal court’s “determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief,” id. at 532 n.4[]; and
finally, “an attack based on the movant’s own conduct, or his habeas
counsel’s omissions,” id. at 532 n.5[]. According to the Court, if a pleading
labeled a Rule 60(b) motion includes such claims, it “is in substance a
successive habeas petition and should be treated accordingly.” Id. at 531[].
Id. (citing Gonzales, 545 U.S. at 530-32) (emphasis added).

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Here, Petitioner does not argue there was a defect in the prior habeas proceeding.

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Instead, Petitioner asserts there is “proof of actual innocence” (doc. 31 at 15) and

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“defense counsel never developed Mr. Lamm as a potential suspect” (id. at 18).

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Petitioner’s claim is nothing more than a disguised motion in support of his trial claim

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that another person placed pornography on his computer. Petitioner’s Motion should be

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dismissed. See Washington, 653 F.3d at 1063; Jones v. Ryan, 2013 WL 5348294, at *5

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(D. Ariz. 2013) (dismissing Rule 60 motion because “the Court lacks jurisdiction to

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consider the new IATC claims raised therein absent authorization from the court of

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appeals.”); Schad v. Ryan, 2013 WL 5276407, at *7 (D. Ariz. 2013) (dismissing

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Rule 60(b) motion because it sought to “litigate a claim already adjudicated on the merits

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by this Court”).

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Further, even a claim of actual innocence must be approved by the Ninth Circuit
Court of Appeals before it can be reviewed by this Court.

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Under [28 U.S.C. § 2244(b)(2)], a successive application is
permissible only if it rests on a new rule of constitutional law, facts that
were previously unavailable, or facts that would be sufficient to show
constitutional error in the petitioner’s conviction. 28 U.S.C. § 2244(b)(2).
Even if a petitioner can demonstrate that he qualifies for one of these
exceptions, he must seek authorization from the court of appeals 3before
filing his new petition with the district court. 28 U.S.C. § 2244(b)(3).

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Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, Petitioner’s proposed

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Rule 60(b) motion would be a second or successive habeas petition because it does not

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attack the integrity of the federal habeas proceeding and instead argues a prior claim.

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Also, Petitioner’s argument is neither newly discovered nor evidence. Instead,

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Petitioner raises a claim that he raised during trial. Petitioner argues that “defense counsel

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never developed Mr. Lamm as a potential suspect.” (Doc. 31 at 18.) Petitioner is

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incorrect. The trial jury and the Arizona Court of Appeals considered Petitioner’s claim

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regarding Mr. Lamm.

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Kangas testified, however, that he did not load the graphic material
on the computer. Although Lamm’s testimony that he only accessed one of
the attached hard drives—not the loose hard drive containing the images at
issue—was confirmed by the police department’s forensic examination,
Kangas suggested Lamm and other co-workers conspired to place the
images on the loose hard drive. Lamm and all police officers who had
access to the hard drive denied putting the images on the computer. A
conflict in the evidence is not the same as insufficient evidence.

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Kangas, 2008 WL 3856357, at *2. The trial court denied Petitioner’s ineffective

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assistance of trial claim and found:

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The second claim alleges that Counsel Tilson was ineffective due to
his failure to conduct a proper investigation concerning experts, possible
alibi, legality of search and seizure and other possible users of computer.

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The Defendant claims that Counsel Tilson was ineffective because
he failed to adequately cross-examine the State’s computer expert and did
not adequately conduct a direct examination of the Defense’s computer
expert to show that digital imagery can enter a computer without the
knowledge of the user of the computer. However, Counsel Tilson did elicit
testimony indicating the computer user had not hidden the files and
therefore it could be inferred that the Defendant had no knowledge the
material was on his computer. The inference being that if he had known, he
would have hidden the files.

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28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”).
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Counsel Tilson also elicited expert testimony [that] illegal images
could enter a person’s computer without his knowledge as a result of
viruses. . . .
(Doc. 10-2, Ex. S, at 120.) Petitioner’s claim is not new.

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Petitioner’s claim is not evidence. Petitioner argues that “with the amount of

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pictures and videos allegedly found on Mr. Kangas’ computer, and given the fact that Mr.

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Kangas held a job, took care of his son and participated in activities outside his home, it

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is feasable that these pictures and videos were placed on his computer by ‘hackers’ and/or

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Mr. Lamm.” (Id. at 20.) But this assertion is mere argument and not proof of actual

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innocence. Petitioner must present “new reliable evidence—whether it be exculpatory

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scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that

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was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995); Bousley v. United

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States, 523 U.S. 614, 623 (1998) (“Actual innocence means factual innocence, not mere

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legal insufficiency”). Petitioner does not present new evidence.

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Regarding Petitioner’s trial counsel, Mr. Tilson, Petitioner argues that his

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disbarment “brings into question the effectiveness of his representation of Mr. Kangas, at

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trial.” (Doc. 31 at 25.) But Petitioner previously raised claims of ineffective assistance of

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trial counsel as noted above. Petitioner’s claim regarding counsel is also not an attack

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against the integrity of the habeas proceedings. As the Supreme Court noted in Gonzalez,

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“an attack based on . . . habeas counsel’s omissions, ordinarily does not go to the integrity

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of the proceedings, but in effect asks for a second chance to have the merits determined

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favorably.” Gonzalez, 545 U.S. at 532 n.5.

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CONCLUSION

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The record is sufficiently developed and the Court does not find that an

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evidentiary hearing is necessary to resolve this matter. See Rhoades v. Henry, 638 F.3d

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1027, 1041 (9th Cir. 2011). The Court recommends the Rule 60 Motion for Relief (doc.

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31) be denied and dismissed with prejudice.

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IT IS THEREFORE RECOMMENDED that the Motion for Relief (doc. 31) be
DISMISSED.

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This recommendation is not an order that is immediately appealable to the Ninth

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Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

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Appellate Procedure, should not be filed until entry of the district court’s judgment. The

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parties shall have 14 days from the date of service of a copy of this Report and

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Recommendation within which to file specific written objections with the Court. See 28

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days

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within which to file a response to the objections.

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Failure to timely file objections to the Magistrate Judge’s Report and

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Recommendation may result in the acceptance of the Report and Recommendation by the

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district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the

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Magistrate Judge will be considered a waiver of a party’s right to appellate review of the

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findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report

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and Recommendation. See Fed. R. Civ. P. 72.

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Dated this 11th day of May, 2018.

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Honorable John Z. Boyle
United States Magistrate Judge

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