Kidd (ID 93399) v. Kansas, State of

Filing 40

MEMORANDUM AND ORDER ENTERED: Petitioner's Motion for Relief from Judgment 38 is denied. Signed by District Judge Daniel D. Crabtree on 01/26/18. Mailed to pro se party Anthony S. Kidd by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY S. KIDD,
Petitioner,
v.

Case No. 15-3235-DDC

STATE OF KANSAS,
Respondent.
____________________________________

MEMORANDUM AND ORDER
On November 30, 2016, the court denied petitioner Anthony S. Kidd’s Petition for Writ
of Habeas Corpus (Doc. 1) and entered Judgment (Doc. 25). On February 17, 2017, petitioner
filed a Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b) (Doc. 26).
The court denied this motion on July 24, 2017 (Doc. 27). On August 1, 2017, petitioner filed a
Motion for Reconsideration and Notice of Appeal. The court denied the Motion for
Reconsideration because petitioner’s Notice of Appeal divested the court of jurisdiction. Doc.
34. On August 9, petitioner voluntarily dismissed his appeal and the Tenth Circuit issued the
mandate that same day. See Docs. 36, 39. On August 18, petitioner filed his second Motion for
Relief from Judgment. For the reasons explained below, the court denies the Motion, too.
I.

Legal Standard
Rule 60(b) permits a district court to relieve a party from a final judgment or order. A

court may grant such a motion on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged . . . ; or (6) any other reason that justifies
relief.
Fed. R. Civ. P. 60(b). But relief under Rule 60(b) is “ʻextraordinary and may only be granted in
exceptional circumstances.’” Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (quoting
ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 754 (10th Cir. 2011)). A Rule 60(b) motion
is no substitute for a direct appeal, and a party may not revisit issues already presented in prior
filings. Id.
II.

Discussion
Petitioner makes four arguments to support his contention that the court should

reconsider his habeas petition. First, he argues, the court should have reconsidered its judgment
because the prosecution in his original criminal case fraudulently secured his conviction.
Second, he argues that the court should not have considered his first Rule 60(b) Motion as a
successive petition. Third, he argues that even if his first Rule 60(b) was a successive petition,
the court should have considered it because he can show prejudice. And last, he contends that he
was not required to exhaust his claims before the state court. The court addresses these
arguments below.1
A.

Allegations of Fraud

Petitioner first argues that the court should have reconsidered its original judgment
because the prosecution in his original case used perjured witnesses, which, according to
petitioner, amounts to fraud. While this contention argues that respondent committed fraud in
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In his Motion, petitioner also argues that the court can reassert jurisdiction over this matter by certifying
that his appeal was frivolous and proceeding with trial. While the Tenth Circuit already has returned jurisdiction to
the court, the court nonetheless explains that this procedure was not available to petitioner while the Tenth Circuit
had jurisdiction over the case. To support his argument that the court should use this procedure, petitioner cites
cases that all involve instances where a defendant filed an interlocutory appeal—meaning an appeal that a litigant
takes before the court enters final judgment. See, e.g., Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir. 1989). But
here, the court had entered final judgment before he took his appeal. See Doc. 25. The court thus could not certify
that the appeal was frivolous and proceed with trial because there was no reason for the court to conduct a trial.

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the original criminal proceeding, it is not an argument that respondent committed fraud in this
proceeding. A court can set aside its judgment if a party procured that judgment by fraud on the
court. Shaw v. AAA Eng’g & Drafting Inc., 138 F. App’x 62, 72 (10th Cir. 2005). Petitioner
never identifies any evidence that respondent procured this court’s judgment by fraud. As for
petitioner’s argument that the prosecution procured his original conviction by fraud, the court
already has considered and decided that issue. See Doc. 24 at 11–12; see also Lebahn, 813 F.3d
at 1306 (“Rule 60(b) relief is not properly granted where a party merely revisits the original
issues . . . .”). The court thus refuses to grant petitioner relief from its judgment because of
fraud.
B.

Successive Petition

Petitioner argues that the court erred when it determined that his first 60(b) Motion was a
successive petition for habeas corpus. Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a petitioner for habeas relief cannot file a second or successive petition
unless he receives authorization to do so from the appropriate court of appeals. Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005); see also 28 U.S.C. § 2244(b)(3) (“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.”). If petitioner files such a successive petition without first obtaining authorization
from the court of appeals, the district court should dismiss the petition because it lacks
jurisdiction to consider it. Gonzalez, 545 U.S. at 531.
When a prisoner who previously has applied for habeas relief files a Rule 60(b) motion
seeking relief from that judgment, that motion may be subject to the restrictions that apply to
second or successive habeas corpus petitions. Id. Such a motion is subject to these restrictions

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when it attacks the merits of the court’s original judgment. Id. at 532. On the other hand, a true
Rule 60(b) motion attacks a “defect in the integrity of the federal habeas proceedings.” Id.
Petitioner argues that the AEDPA’s restrictions never apply to Rule 60(b) motions. He
cites Hamilton v. Newland, 374 F.3d 822 (9th Cir. 2004), for support. In Hamilton, a habeas
petitioner invoked Rule 60(b) to seek relief from the district court’s decision denying his habeas
petition. Id. at 823. The district court originally denied his petition because the petitioner had
filed the petition outside of the AEDPA’s one-year statute of limitations. Id. at 824. So, it
declined to reach the merits of petitioner’s claim. Id. Without asking the Ninth Circuit for
approval, petitioner filed a Rule 60(b) motion, raising the same constitutional claims the district
court never addressed and claiming that his “actual innocence” constituted an extraordinary
circumstance allowing petitioner to avoid the statute of limitations defense. Id. The district
court construed this motion as a successive petition and denied it for lack of jurisdiction. Id. at
823.
On appeal, the Ninth Circuit held that petitioner’s 60(b) motion was not a successive
petition. Id. at 824. The Circuit explained that petitioner “asserted a claim of actual innocence
only as a procedural device to avoid the statute of limitations [defense] and get the district court
to reach the merits of the same constitutional claims he had raised in the original petition.” Id.
Hamilton contrasted its ruling with cases where petitioners asserted new constitutional grounds
for relief or reasserted the same constitutional arguments in their Rule 60(b) motions. Id. Those
Rule 60(b) motions, the Ninth Circuit explained, were successive habeas petitions subject to the
AEDPA’s restrictions. Id. Thus, contrary to petitioner’s contention, some Rule 60(b) motions
are successive habeas petitions and thus subject to the AEDPA’s restrictions. Id.

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Here, in his first Rule 60(b) Motion, petitioner raised four arguments that he asserted in
his original petition. See Doc. 27 at 4. He asserted that the court should relieve him from
judgment because (1) his counsel was ineffective, (2) the prosecution committed misconduct
during his trial, (3) there was insufficient evidence to convict him, and (4) the jury made an
unreasonable determination of the facts in light of the trial evidence. Id. These arguments were
not a procedural device to get the court to consider the merits of his claim—they were his
arguments on the merits of his claim that his conviction was unconstitutional. See Doc. 24 at
11–15 (denying the petition based on petitioner’s claim of ineffective counsel, prosecutorial
misconduct, insufficient evidence, and the jury’s unreasonable determination of the facts). His
first Rule 60(b) Motion thus was a successive petition on those four claims.
But the court reconsidered its ruling that petitioner had failed to exhaust his ineffective
assistance of counsel claim because petitioner argued the court made a mistake. See Doc. 27 at
6. The court could consider this argument because such an argument attacks “a defect in the
integrity of the federal habeas proceedings.” Gonzales, 545 U.S. at 532. When it reconsidered
its decision, the court concluded that it had not made a mistake. Doc. 27 at 7. The court thus
finds Hamilton provides no aid to petitioner here.
C.

Prejudice

Petitioner’s next argument contends that the court should have addressed petitioner’s
arguments in his first Rule 60(b) Motion because he can show prejudice. A court can consider a
successive habeas claim without approval from the court of appeals if petitioner can show good
cause for failing to raise or develop his claim fully and prejudice arising from such failure.
Stanko v. Davis, 617 F.3d 1262, 1271 (10th Cir. 2010); see also Washington v. Delo, 51 F.3d
756, 760 (8th Cir. 1995). Here, the court need not decide whether petitioner was prejudiced

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because petitioner never shows any good reason for failing to develop his claims fully in his
initial Petition. A petitioner can show good cause for failing to develop a claim fully when he
shows some external force prevented him from raising the claim. McCleskey, 499 U.S. at 497.
Petitioner’s motion identifies no external force preventing him from raising any claim he
addressed in his first Rule 60(b) Motion. In fact, as discussed above, his claims in first Rule
60(b) Motion mirror those that he asserted in his original Petition. To the extent petitioner
argues that the prosecution’s alleged use of witnesses who committed perjury is an external
force, petitioner has not shown any external force preventing him from fully developing this
claim in his habeas petition. See McCleskey, 499 U.S. at 497 (holding that a petitioner failed to
show good cause for failing to raise an argument in a prior habeas proceeding when he knew
certain facts before he filed his first habeas petition that put him on notice to pursue his
argument).
D.

Exhaustion

Last, Petitioner argues that the court cannot deny a habeas petition because he failed to
raise certain arguments when he appealed his original conviction in state court. He cites
Kaufman v. United States, 394 U.S. 217 (1969), for support. In Kaufman, the Supreme Court
said that a federal court cannot deny habeas relief to a state prisoner solely because the petitioner
failed to raise the constitutional issues in his petition in his state court appeal. Id. at 223. But the
Supreme Court since has rejected that proposition. See O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999) (“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court. In other words, the state prisoner must give the state courts
an opportunity to act on his claims before he presents those claims to a federal court in a habeas
petition.”). Here, petitioner did not give the Kansas Court of Appeals or the Kansas Supreme

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Court the opportunity to address his ineffective assistance of counsel claims because he failed to
raise them before the state trial court, both courts refused to decide the issue. Doc. 24 at 9. The
court thus cannot consider any argument that he did not present to the Kansas courts.
III.

Conclusion
For the reasons explained above, the court denies petitioner’s Motion for Relief from

Judgment (Doc. 38).
IT IS THEREFORE ORDERED BY THE COURT THAT petitioner’s Motion for
Relief from Judgment (Doc. 38) is denied.
IT IS SO ORDERED.
Dated this 26th day of January, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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