Kanger v. Schriro et al

Filing 97

ORDER denying 93 Petitioner's Motion for Relief from Judgment. Signed by Judge Paul G Rosenblatt on 9/19/11.(TLJ)

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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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v.

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Charles L. Ryan, et. al.,

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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. 93.) On November 4, 2008, this Court entered an order accepting and adopting

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Magistrate Judge Burns’ Report and Recommendation (“R&R”). The R&R recommended

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

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

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The appeal was terminated on November 12, 2009. (Doc. 92.) On February 25, 2011,

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Petitioner filed the pending motion. Respondents did not file a response.

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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: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an

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adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or

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discharged; or (6) any other reason justifying relief from the operation of the judgment. See

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Fed. R. Civ. P. 60(b).

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Although he recites these criteria, Petitioner does not assert that the reasons

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enumerated in Rule 60(b)(1)–(5) actually apply to his case. Instead, he argues that his habeas

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claims were wrongly denied on procedural grounds despite the fact that he had made a

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substantial showing of constitutional violations. (Doc. 93 at 2.) Thus, although titled a Rule

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60(b) motion, in substance the motion constitutes a second or successive petition because

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Petitioner “seeks leave to argue the merits of constitutional claims inadequately presented

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in or omitted from his previous habeas petition.” Gonzalez v. Crosby, 545 U.S. 524, 531

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(2005). Pursuant to 28 U.S.C. § 2244(b), therefore, the motion must be dismissed.

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Moreover, the motion is untimely, having been filed more than two years after

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judgment was entered. See Fed. R. Civ. P. 60(c)(1) (Rule 60(b) motion must be made in a

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“reasonable time”).

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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. 93).
DATED this 19th day of September, 2011.

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