Kanger v. Schriro et al

Filing 113

ORDER denying 110 Petitioner's Motion for Relief from a Judgment/Order Under Rule 60(b). ORDER denying a certificate of appealability. Signed by Senior Judge Paul G Rosenblatt on 8/14/13.(TLJ)

Kanger v. Ryan et al

1

Doc. 113

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Kenneth James Kanger,

9
10
11
12

Petitioner,
v.
Charles L. Ryan, et. al.,
Respondents.

)
)
)
)
)
)
)
)
)

No. 07-CV-8094-PHX-PGR (MHB)
ORDER

13
14

Before the Court is Petitioner’s Motion for Relief from a Judgment/Order under Rule

15

60(b). (Doc. 110.) On November 4, 2008, this Court entered an order accepting and adopting

16

Magistrate Judge Burns’s Report and Recommendation, which recommended that the Court

17

deny and dismiss Petitioner’s Petition for Writ of Habeas Corpus. (Doc. 72.) This Court

18

denied a certificate of appealability, as did the Ninth Circuit Court of Appeals. The appeal

19

was terminated on November 12, 2009. (Doc. 92.) On February 25, 2011, Petitioner filed a

20

Motion for Relief from a Judgment/Order under Rule 60(b) (Doc. 93), which the Court

21

denied on September 19, 2011 (Doc. 97). On December 23, 2011, the Court of Appeals

22

denied a certificate of appealability. (Doc. 108.) Petitioner filed the pending motion on

23

September 24, 2012.

24

Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from

25

judgment for the following reasons: mistake, inadvertence, surprise, or excusable neglect;

26

newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse

27

party; the judgment is void; the judgment has been satisfied, released, or discharged; or any

28

other reason justifying relief from the operation of the judgment. See Fed. R. Civ. P. 60(b).

Dockets.Justia.com

1

Petitioner contends, as he did in his previous Rule 60(b) motion, that the Court

2

wrongly denied his habeas claims on procedural grounds. According to Petitioner, this denial

3

demonstrates a “lack of integrity and lack of adequacy” on the part of the Court and the

4

habeas proceedings. (Doc. 110 at 4.) Petitioner also contends that he has made out a showing

5

of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). (Id. at 2–4.)

6

As addressed in the Court’s order denying Petitioner’s first 60(b) motion and in

7

Magistrate Judge Burns’s Report & Recommendation, these arguments fail. First, the

8

pending motion again constitutes a second or successive petition because Petitioner “seeks

9

leave to argue the merits of constitutional claims inadequately presented in or omitted from

10

his previous habeas petition.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Pursuant to 28

11

U.S.C. § 2244(b), therefore, the motion must be dismissed. Next, Petitioner has not offered

12

new evidence supporting a credible claim of actual innocence. (See Doc. 72 at 11–13.)

13

Accordingly,

14

IT IS HEREBY ORDERED denying Petitioner’s Motion for Relief from a

15

Judgment/Order under Rule 60(b) (Doc. 110).

16

IT IS FURTHER ORDERED denying a certificate of appealability.

17

DATED this 14th day of August, 2013.

18
19
20
21
22
23
24
25
26
27
28
- 2 -