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
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Doc. 113
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Kenneth James Kanger,
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Petitioner,
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Charles L. Ryan, et. al.,
Respondents.
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No. 07-CV-8094-PHX-PGR (MHB)
ORDER
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Before the Court is Petitioner’s Motion for Relief from a Judgment/Order under Rule
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60(b). (Doc. 110.) On November 4, 2008, this Court entered an order accepting and adopting
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Magistrate Judge Burns’s Report and Recommendation, which recommended that the Court
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deny and dismiss Petitioner’s Petition for Writ of Habeas Corpus. (Doc. 72.) This Court
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denied a certificate of appealability, as did the Ninth Circuit Court of Appeals. The appeal
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was terminated on November 12, 2009. (Doc. 92.) On February 25, 2011, Petitioner filed a
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Motion for Relief from a Judgment/Order under Rule 60(b) (Doc. 93), which the Court
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denied on September 19, 2011 (Doc. 97). On December 23, 2011, the Court of Appeals
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denied a certificate of appealability. (Doc. 108.) Petitioner filed the pending motion on
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September 24, 2012.
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Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from
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judgment for the following reasons: mistake, inadvertence, surprise, or excusable neglect;
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newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse
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party; the judgment is void; the judgment has been satisfied, released, or discharged; or any
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other reason justifying relief from the operation of the judgment. See Fed. R. Civ. P. 60(b).
Dockets.Justia.com
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Petitioner contends, as he did in his previous Rule 60(b) motion, that the Court
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wrongly denied his habeas claims on procedural grounds. According to Petitioner, this denial
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demonstrates a “lack of integrity and lack of adequacy” on the part of the Court and the
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habeas proceedings. (Doc. 110 at 4.) Petitioner also contends that he has made out a showing
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of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). (Id. at 2–4.)
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As addressed in the Court’s order denying Petitioner’s first 60(b) motion and in
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Magistrate Judge Burns’s Report & Recommendation, these arguments fail. First, the
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pending motion again constitutes a second or successive petition because Petitioner “seeks
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leave to argue the merits of constitutional claims inadequately presented in or omitted from
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his previous habeas petition.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Pursuant to 28
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U.S.C. § 2244(b), therefore, the motion must be dismissed. Next, Petitioner has not offered
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new evidence supporting a credible claim of actual innocence. (See Doc. 72 at 11–13.)
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Accordingly,
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IT IS HEREBY ORDERED denying Petitioner’s Motion for Relief from a
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Judgment/Order under Rule 60(b) (Doc. 110).
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IT IS FURTHER ORDERED denying a certificate of appealability.
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DATED this 14th day of August, 2013.
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