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)

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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 -

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