Kills On Top v. Mahoney

Filing 113

ORDER denying 103 Motion under Fed. R. Civ. P. 60(b)(6). To the extent the Court is required and permitted to consider a certificate of appealability, it is DENIED. Signed by Magistrate Judge Carolyn S Ostby on 9/4/2014. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
Cause No. CV 01-192-BLG-CSO

VERN KILLS ON TOP,
Petitioner,

ORDER DENYING RULE 60(b)
MOTION AND DENYING
CERTIFICATE OF APPEALABILITY

vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

On May 26, 2009, this Court entered judgment dismissing this habeas
corpus action. Order (Doc. 92); Judgment (Doc. 93). Relying on Fed. R. Civ. P.
60(b)(6), Petitioner Vern Kills On Top (“Kills On Top”) now seeks to reopen the
case. See Br. in Supp. (Doc. 103) at 9 para. 1. He seeks a determination of the
merits of his claim that his 1998 state court sentence violates the Eighth
Amendment’s proportionality principle. The merits of that claim were not
considered in the former proceedings because the claim was dismissed with
prejudice as procedurally defaulted without excuse.
On December 10, 2007, the parties consented in writing to the jurisdiction of
a United States Magistrate Judge for all purposes, including entry of judgment
“and all post-judgment proceedings.” Consents (Doc. 55) at 1-2; Order (Doc. 56);
see also D. Mont. L.R. 1.10(d), 73.1(a), 73.2 (eff. Dec. 1, 2005).
1

I. Background
A. Direct and Collateral Proceedings in State Court
In October 1987, Kills On Top participated in kidnapping and robbing Mark
Etchemendy. Etchemendy was held and repeatedly assaulted over a period of about
12 hours. Two of the other people involved, Diane Bull Coming and Petitioner’s
brother Lester, killed Etchemendy. Vern Kills On Top was not present when
Etchemendy was killed.
Kills On Top was convicted of robbery, aggravated kidnapping, and
deliberate homicide by felony murder. Although Vern Kills On Top was not
present at Etchemendy’s murder, both brothers were initially sentenced to death.
The sentences were affirmed on direct appeal but were vacated in postconviction
proceedings. The Montana Supreme Court held that sentencing the less-culpable
Vern Kills On Top to death violated the proportionality principle in the Montana
Constitution, Art. II, § 22. See Kills On Top v. State, 928 P.2d 182, 204-07 (Mont.
1996).
On November 10, 1998, Kills On Top was re-sentenced to forty years’
imprisonment for robbery and to life terms for aggravated kidnapping and for
deliberate homicide, with the sentences to run consecutively. The court deemed
Kills On Top ineligible for parole with respect to the aggravated kidnapping charge
and also designated him a dangerous offender for purposes of parole eligibility on
2

the deliberate homicide charge. Judgment (Doc. 103-2 at 7). He appealed again,
but the Montana Supreme Court affirmed the sentence. Postconviction relief was
denied on December 19, 2000. Kills On Top v. State, 15 P.3d 422 (Mont. 2000).
B. Proceedings in Federal Court
On December 7, 2001, Kills On Top filed a federal habeas petition. The
provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) apply to his petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997)
(discussing AEDPA, Pub. L. No. 104-132, tit. I, § 107(c), 110 Stat. 1214, 1226
(Apr. 24, 1996), and contrasting amendments to chapter 154 of Title 28 with
amendments to chapter 153).
Among other claims, Kills On Top’s habeas petition alleged that his life
sentences violated the proportionality principle of the Eighth Amendment. When
the State moved to dismiss the proportionality claim – labeled “Claim P” – Kills
On Top asserted it was properly exhausted and should not be held procedurally
barred. He did not argue that Claim P could be presented in sentence review
proceedings or that it was unexhausted for any other reason. See Pet’r Br. (Doc.
31) at 16-17; Order (Doc. 37) at 2, 4-5, 18-19. United States Magistrate Judge
Richard W. Anderson, acting with the consent of the parties, held Claim P was not
fairly presented in state court as a claim predicated on federal law. The claim was
deemed exhausted, because no remedy remained available for Kills On Top to
3

present the claim in state court, but that meant the claim was procedurally
defaulted. See Order (Doc. 27) at 20-23; Gray v. Netherland, 518 U.S. 152, 162
(1996); see also Smith v. Baldwin, 510 F.3d 1127, 1137-39 (9th Cir. 2007) (en
banc). Although Kills On Top was given an opportunity to excuse his procedural
default, Order (Doc. 27) at 21-22, 23, 24, 28, 30, 48 ¶ 2; see also Order (Doc. 37)
at 2, 4-5, he did not succeed in doing so, Order (Doc. 37) at 18-19, 20. Claim P
was dismissed with prejudice as procedurally defaulted without excuse. Id. at 43 ¶
1. A certificate of appealability was denied as to Claim P. Id. at 42-43, 43 ¶ 4; see
also Order (Doc. 40) at 1-2. Although Kills On Top asked the Court of Appeals to
grant a certificate of appealability on other claims, he did not ask the Court of
Appeals to certify Claim P. Mem. at 7 ¶ III, Kills On Top v. Mahoney, No. 0535433 (9th Cir. June 20, 2007) (Doc. 46-1).
Following a remand for further proceedings on the two claims Judge
Anderson had certified, which were unrelated to Claim P, this Court again entered
a final judgment against Kills On Top and denied a certificate of appealability on
May 26, 2009. Order (Doc. 92); Judgment (Doc. 93). Kills On Top unsuccessfully
sought a certificate of appealability in the Ninth Circuit Court of Appeals. Orders
(Docs. 99, 100). The Ninth Circuit’s Order stated: “No further filings will be
accepted in this closed case.” On May 16, 2011, the United States Supreme Court
denied a writ of certiorari. Order (Doc. 99); Clerk Letter (Doc. 102).
4

C. New Proceedings in State Court
On or about February 3, 2012, Kills On Top applied for review of his 1998
sentence in the Sentence Review Division (“SRD”) of the Montana Supreme
Court. See Hinson Email to SRD Judges at 1 (Doc. 106-1 at 42).The Judges of the
Sentence Review Division found that Kills On Top did not receive notice, in the
manner prescribed by state law, of his opportunity to apply for sentence review. As
a result, they excused Kills On Top’s failure to apply for sentence review within 60
days of the imposition of the sentence in 1998. After hearing the application, the
Sentence Review Division neither increased nor reduced the sentence. The
sentence was affirmed on November 19, 2012. SRD Decision (Doc. 103-5) at 1-2.
Kills On Top’s application for rehearing was denied on February 26, 2013. SRD
Decision (Doc. 103-7) at 4.
On July 29, 2013, Kills On Top filed a petition for writ of supervisory
control in the Montana Supreme Court. Pet. for Supervisory Writ (Doc. 103-8) at
1. Because supervisory control was the wrong writ to seek, and because relief was
not warranted even if the correct form of petition had been timely filed, the
Montana Supreme Court denied and dismissed the petition on October 22, 2013.
Order (Doc. 103-9) at 5. Rehearing was denied on November 26, 2013. Order
(Doc. 103-11) at 1.

5

D. Rule 60 Motion Now Pending
On March 14, 2014, Kills On Top filed a motion under Fed. R. Civ. P.
60(b)(6), seeking to reopen proceedings on his federal habeas petition to allow the
Court to consider the merits of Claim P.
II. Jurisdiction
Fed. R. Civ. P. 60(b) “has an unquestionably valid role to play in habeas
cases,” even though its application may be qualified in some instances by the
stringent limitations on second or successive petitions in habeas cases. 28 U.S.C. §
2244(b); Gonzalez v. Crosby, 545 U.S. 524, 534 (2005). At times a court must
recharacterize a Rule 60(b) motion as a “disguised” second or successive petition
requiring pre-authorization from the Court of Appeals. E.g., United States v.
Washington, 653 F.3d 1057, 1063-64 (9th Cir. 2011). At other times, a Rule 60(b)
motion in a § 2254 case can simply be addressed under the criteria applicable to all
Rule 60(b) motions. See Gonzalez, 545 U.S. at 536-38.
Although one of his arguments might lead to a different conclusion, see Br.
in Supp. (Doc. 103) at 16 (point heading) (capitalization omitted); id. at 23-27, on
the whole, Kills On Top’s motion falls in the latter category. A petitioner seeking a
second chance at having the merits of a claim determined favorably to him is, in
substance, applying a second time for federal habeas relief. Gonzalez, 545 U.S. at
530-32. But “if neither the motion itself nor the [portion of the] federal judgment
6

from which it seeks relief substantively addresses federal grounds for setting aside
the movant’s state conviction, allowing the motion to proceed as denominated
creates no inconsistency with the habeas statute or rules.” Id. at 533. In other
words, a petitioner is not making a habeas corpus claim when he “merely asserts
that a previous ruling which precluded a merits determination was in error – for
example, a denial for such reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id. at 532 n.4.
Here, the Court did not consider the merits of Claim P because it was
dismissed with prejudice as procedurally defaulted. Like the petitioner in
Gonzalez, Kills On Top asks the Court to set aside a procedural dismissal and
consider the merits of Claim P for the first time. The Court has jurisdiction to
consider the Rule 60 motion because it is not, in substance and on the whole, a
second or successive petition.
III. Rule 60(b)(6)
As Kills On Top’s motion is validly filed under Rule 60(b)(6), the next
question is whether the motion meets the high standards required to obtain relief. 1

1

Kills On Top’s opening brief misrepresented the dismissal of Claim P,
based on procedural default, to be without prejudice. See, e.g., Br. in Supp. (Doc.
103) at 9. To say a claim is dismissed “without prejudice as procedurally
defaulted” does not make sense. Dismissal of a federal habeas claim for lack of
jurisdiction or for lack of exhaustion would be without prejudice. Dismissal of a
federal habeas claim as procedurally defaulted without excuse or as time-barred is
dismissal with prejudice. It “forecloses the possibility that the underlying claims
7

A. The Phelps Test
Relying on Phelps v. Alameida, 569 F.3d 1120, 1137-40 (9th Cir. 2009),
Kills On Top asserts that a court considering a motion under Rule 60(b)(6) must
consider six factors. In Phelps, however, all six of those factors involved an
intervening change in the law governing federal habeas procedure. But Kills On
Top does not predicate his Rule 60 motion on a change in federal habeas
procedural law.
Over a period of 11 years, Phelps filed petitions and motions arguing that his
first federal habeas petition was timely, and for a period of 11 years, every court to
hear his arguments rejected them in an unpublished opinion, only to adopt them
shortly after in a published decision. On each occasion, the argument Phelps made
was not contrary to established law; he identified an unresolved issue, presented an
argument as to how it should be resolved, then lost, only to see his reasoning
adopted as controlling precedent by a different judge or panel months later. See
Phelps, 569 F.3d at 1122-24. The issue in the case, therefore, was whether these
changes in the law – or, more accurately, new precedents in the law – could
support reopening of the first, incorrectly time-barred federal habeas petition
Phelps had filed in 1998. The Phelps court held:

will be addressed by a federal court.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th
Cir. 2009) (per curiam).
8

When a dismissal of a habeas petition rests upon an answer to an open
legal question that is promptly rejected and then replaced in a more
authoritative opinion by the very answer proposed by a diligent but
unsuccessful petitioner, the petitioner is entitled to seek
reconsideration of the dismissal entered against him.
Phelps, 569 F.3d at 1124.
In order to reach this conclusion, the Phelps court reasoned that Gonzalez
“did not hold that denial of the [Rule 60(b)(6)] motion was required because it
rested on a subsequent change in the law.” Id. at 1132-33 (discussing Gonzalez,
545 U.S. at 533) (emphasis in Phelps). Consequently, following Gonzalez, Phelps
overruled prior circuit precedent, Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th
Cir. 1989), a civil rights action which had held that a Rule 60(b)(6) motion could
never be granted based on an intervening change in the law. See Phelps, 569 F.3d
at 1133-34 (citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)).
And the Phelps court went on to identify six factors – two from Gonzalez and four
from Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987), cited in Gonzalez, 545 U.S. at
534, and Harvest v. Castro, 531 F.3d 737, 748 (9th Cir. 2008) – that “are
particularly useful in applying Rule 60(b)(6) to rejected petitions for habeas
corpus.” Phelps, 569 F.3d at 1135 n.19. The two Gonzalez factors identified were:
(1) whether the intervening change in the law overruled an otherwise settled
precedent, and (2) the petitioner’s diligence in pursuing review of the issue after an
intervening change in the law. Id. at 1135-36. The four Ritter factors identified
9

were: (1) whether granting the motion to reconsider would undo the past executed
effects of the judgment, thereby disturbing the parties’ reliance interest in the
finality of the case, (2) an examination of the delay between the finality of the
judgment and the motion for Rule 60(b)(6) relief, (3) the closeness of the
relationship between the two cases at issue – that is, the decision the petitioner
seeks to reopen and a subsequent decision embodying a change in the law, and (4)
considerations of comity. Id. at 1138-40.
All six factors, however, apply “when analyzing a Rule 60(b)(6) motion
predicated on an intervening change in the law.” Phelps, 569 F.3d at 1133. Like
Phelps, Gonzalez, Ritter and Tomlin all questioned whether a change in the law
constituted an “extraordinary circumstance” sufficient to justify relief under Rule
60(b)(6). The Court of Appeals has applied the six Phelps factors only in cases
where the petitioner relies on a change in the law to claim a right to relief under
Rule 60(b)(6). See, e.g., Jones v. Ryan, 733 F.3d 825, 838-40 (9th Cir. 2013);
Lopez v. Ryan, 678 F.3d 1131, 1135-37 (9th Cir. 2012); Robertson v. Walker, No.
12-16067, 543 Fed. Appx. 722, 723-24 (9th Cir. Oct. 25, 2013) (unpublished mem.
disp.) (see Fed. R. App. P. 32.1; 9th Cir. R. 36-3(b)). Ritter, too, was described in
Harvest as coming into play when a party filing a Rule 60(b) motion “proves that
there has been an intervening change in the law.” Harvest, 531 F.3d at 748
(addressing modification of a judgment with prospective effect under Rule
10

60(b)(5)). While Phelps does indeed contain some broad statements suggesting that
all motions under Rule 60(b)(6) in habeas cases, and possibly all other cases as
well, should be governed by its test, see, e.g., 569 F.3d at 1135 n.19, the context of
the decision, the precedents on which it relies, and the manner of its application
since issuance suggest that its scope is limited to cases in which “a Rule 60(b)(6)
motion [is] predicated on an intervening change in the law.” Phelps, 569 F.3d at
1133.
If Kills On Top identified a change in the federal procedural law that led to
dismissal of Claim P, the Phelps test would likely control. But, as the State
correctly points out, Resp’t Br. (Doc. 106) at 13, he does not. Pressed by his
misapplication of the Phelps test to identify “[any] intervening change in the law,”
Br. in Supp. at 16 (adding bracketed word and quoting remainder from Phelps,
569 F.3d at 1135), Kills On Top argues that “intervening changes in the law
concerning proportionality principles generally support granting relief from the
judgment,” Br. in Supp. at 16 (point heading) (capitalization omitted); id. at 23-27.
To the extent he advances any intervening change in the substantive law governing
the consideration of the merits of Claim P, he argues “that a subsequent change in
substantive law is a ‘reason justifying relief’ from the previous denial of a claim”
and so transforms his Rule 60(b) motion into “in substance a successive habeas
petition.” Gonzalez, 545 U.S. at 532 (quoting Fed. R. Civ. P. 60(b)(6)). Gonzalez
11

closes off that vein of argument.
B. Applicable Standards
The standards that can properly be applied to Kills On Top’s motion are less
specific than the six factors identified by Phelps. A motion under Rule 60(b)(6)
must be reasonably timely, Fed. R. Civ. P. 60(c) (formerly Rule 60(b) second
sentence), and must demonstrate that “extraordinary circumstances prevented a
litigant from seeking earlier, more timely relief,” United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993), or “prevented [the] party from
taking timely action to prevent or correct an erroneous judgment,” Greenawalt v.
Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997) (per curiam) (quoting Alpine Land,
984 F.2d at 1049). The extraordinary circumstance must be “beyond his control.”
Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). “[R]elief
may not be had where the party seeking reconsideration has ignored normal legal
recourses.” Alpine Land, 984 F.2d at 1049 (quoting In re Pacific Far East Lines,
Inc., 889 F.2d 242, 249, 250 (9th Cir. 1989)) (internal quotation marks omitted).
These requirements apply in all Rule 60(b) cases, but they are especially
significant in the habeas context, because they “limit the friction between the Rule
and the successive-petition prohibitions” of 28 U.S.C. § 2244(b). See Gonzalez,
545 U.S. at 535.
Kills On Top makes several assertions to attempt to show why it is
12

appropriate to reopen the original federal habeas proceedings under Rule 60(b).
These assertions are analyzed below.
C. Time Bar of Federal Petition
Kills On Top asserts he “could not apply for sentence review prior to filing a
federal petition . . . because the sentence review application would not toll the
AEDPA’s statute of limitations at the time of his appeal.” Reply at 14 (emphasis
added); see also Br. in Supp. at 20-21. He did not say so in the original
proceedings in this Court. On the contrary, he insisted that Claim P was properly
exhausted in the Montana Supreme Court. See Br. re: Procedural Defenses (Doc.
31) at 16-17. He did not ask the Court to consider whether sentence review would
toll time under 28 U.S.C. § 2244(d)(2).2

2

Kills On Top’s brief in support of his motion misrepresents the holding of
Rogers v. Ferriter, No. CV 12-13-BU-DLC (D. Mont. filed Mar. 9, 2012). Kills
On Top says the case holds that “an application for sentence review may not toll
the AEDPA’s statute of limitations.” Br. in Supp. at 20. On the contrary, Rogers
held that sentence review in Montana is “State post-conviction or other collateral
relief” within the meaning of 28 U.S.C. § 2244(d)(2), and the federal limitations
period will be tolled while a sentence review application is both “properly filed”
and “pending,” as the federal statute requires. Rogers’ application was not properly
filed and pending throughout the whole of the time he claimed it was, so his
petition was time-barred. See Order (Doc. 22) at 4-5; Findings and
Recommendation (Doc. 20) at 4-15, Rogers, No. CV 12-13-BU-DLC (D. Mont.
judgment entered Aug. 2, 2013), available at 2013 WL 3990693. Rogers is now
pending in the Ninth Circuit Court of Appeals, No. 13-35790 (9th Cir. filed Aug.
29, 2013).
So far as this Court is aware, no Montana federal court considered whether
state sentence review would toll time under 28 U.S.C. § 2244(d)(2) until 2007,
after the conclusion of the original proceedings in this Court on Kills On Top’s
13

Even if Kills On Top were correct that federal time may not have been tolled
for sentence review, his premise is faulty. He could have filed for sentence review
prior to filing his federal petition. AEDPA’s statute of limitations was enacted
while Kills On Top’s postconviction petition was pending in state court.
Consequently, although the federal limitations period commenced on April 24,
1996, it was immediately tolled under 28 U.S.C. § 2244(d)(2). State postconviction
proceedings remained pending continuously until December 19, 2000. The federal
limitations period began to run on December 20, 2000. Kills On Top filed his
federal petition on December 7, 2001. He had ample time to file an application for
sentence review within 60 days after the termination of his postconviction
proceeding. See Mont. Code Ann. § 46-18-903(1).
Even if an application for review had still been pending before the Sentence
Review Division at the time Kills On Top needed to file his federal petition, he
could have filed his federal petition, with or without Claim P included, and moved
to stay the federal proceedings pending completion of sentence review. See, e.g.,
petition. See Findings and Recommendation (Doc. 23) at 7-8, Weaver v. Attorney
General, No. CV 06-94-M (D. Mont. filed May 24, 2007), adopted by Order (Doc.
97) at 2, 11-12 (D. Mont. Dec. 12, 2008). Weaver appealed, but he argued only
that the District Court erred in finding he did not prove actual innocence. See
Weaver v. Att’y Gen’l, No. 08-36057 (9th Cir. Mar. 12, 2010). Following issuance
of Wall v. Kholi, __ U.S. __, 131 S. Ct. 1278, 1284-87 (2011), Rogers recognized
that “Kholi abrogates Weaver.” 2013 WL 3990693 at *9.
These changes in the procedural law applying to federal habeas petitions in
Montana are not relevant to Kills On Top, who applied for sentence review years
after Claim P was dismissed.
14

James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000) (“We have long held that a
federal habeas petitioner has a right to amend a mixed petition to delete
unexhausted claims as an alternative to suffering a dismissal.”) (citing Calderon v.
U.S. District Court (“Taylor”), 134 F.3d 981, 984-89 (9th Cir. 1998)); see also
Order (Doc. 37) at 19.3
In sum, Kills On Top’s premise is faulty, and his conclusion would not
follow from it even if it were sound. Nothing prevented him from applying for
sentence review before filing his federal petition or even while his federal petition
was pending. Nothing prevented him from bringing any timing problem to the
attention of the Court. His retrospective apprehension of a prospective time bar is
negated by the facts and is not an extraordinary circumstance justifying reopening
of the proceedings under Rule 60(b)(6).

3

A portion of Taylor expressing skepticism about a petitioner’s ability later
to amend his petition to include newly exhausted claims was found to be dicta in
Calderon v. U.S. District Court (“Thomas”), 144 F.3d 618, 621 (9th Cir. 1998). A
subsequent hearing of the James case approved such amendment. James v. Pliler,
269 F.3d 1124, 1127 (9th Cir. 2001). In Kelly v. Small, 315 F.3d 1063, 1070-71
(9th Cir. 2003), the appellate court required district courts sua sponte to consider
the stay-and-abey procedure. That requirement was overruled by Robbins v. Carey,
481 F.3d 1143, 1148-49 (9th Cir. 2007), following Pliler v. Ford, 542 U.S. 225,
234 (2004). Throughout these developments, the stay-and-abey procedure
remained viable. Two weeks before the Court ruled on Kills On Top’s motion for a
certificate of appealability, see Mot. for COA (Doc. 38); Order (Doc. 40), the
Supreme Court endorsed stay-and-abey under conditions that likely would have
been met had Kills On Top timely pursued sentence review. See Rhines v. Weber,
544 U.S. 269, 277-78 (2005).
15

D. Sentence Review and Procedural Default
The essence of the Rule 60(b) motion is an assertion that the Court must
have erred when it deemed Claim P technically exhausted based on a finding that
no remedies remained available in state court, because the Sentence Review
Division did not dismiss Kills On Top’s application as untimely but gave him a full
hearing. Therefore, Kills On Top suggests, Claim P was not actually exhausted,
and as it is now exhausted, the Court should reopen the proceedings to hear it. See,
e.g., Reply at 7-9, 10-11, 12.
For at least three reasons, the Sentence Review Division’s hearing of Kills
On Top’s application does not provide a basis for relief in this Court under Rule
60(b).
1. Error Does Not Suffice to Reopen a Final Judgment
First, assuming the Court erred in deeming Claim P exhausted and
procedurally defaulted, error can be appealed. It is not an extraordinary
circumstance under Rule 60(b)(6), because it does not “prevent[]” a litigant “from
taking timely action to prevent or correct” the district court’s judgment.
Greenawalt, 105 F.3d at 1273.
Nor is error a “defect in the integrity of the federal habeas proceeding”
comparable to fraud on the court. Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir.
2001), cited in Gonzalez, 545 U.S. at 532 n.5, illustrates this fact. There, the
16

petitioner’s federal habeas claims were not dismissed on procedural grounds but
were addressed and denied on the merits of the claims for relief. The petitioner
sought to reopen the federal habeas proceeding because the reasons his trial
counsel gave for refusing to testify were false, and because the prosecution failed
to disclose it had deposed trial counsel by telephone in a disciplinary proceeding.
See Rodriguez, 252 F.3d at 195-97. Because those facts went to the integrity of the
original federal habeas proceeding and not to the validity of the state criminal
judgment, they were properly considered in a Rule 60(b) motion and were not, in
substance, a second petition for relief. Id. at 198-200. Even so, Rodriguez’s
allegations did not support relief under Rule 60. Id. at 201.
If error were an integrity-undermining defect like fraudulent
misrepresentations or omissions, any instance of error, whether procedural or
substantive, would justify reopening of a final judgment under Rule 60(b)(6), and
there would be no need to appeal in a timely manner. That is plainly not the
purpose of the rule. See Ackermann v. United States, 340 U.S. 193, 197-200
(1950); Klaprott v. United States, 335 U.S. 601, 613-14 (1949).
Kills On Top must show, therefore, that something beyond his control
prevented him from appealing the ruling on Claim P. But he has made no such
showing. He sought a certificate of appealability on Claim P in this Court. See Mot.
for COA (Doc. 38) at 3-4 ¶ 7. When this Court denied a COA on that claim and
17

certified two others instead, see Orders (Doc. 37 at 43 ¶ 4; Doc. 40 at 2), Kills On
Top abandoned Claim P. He did not seek a COA on Claim P from the Court of
Appeals or brief Claim P as an uncertified issue. See Appellant Br. at 39-62, Kills
On Top v. Mahoney, No. 05-35433, 2005 WL 3517779 (9th Cir. Oct. 3, 2005);
Appellant Reply at 25-28, Kills On Top, No. 05-35433 (9th Cir. Mar. 7, 2006).
Kills On Top states that he “had to” abandon Claim P because he wanted to
brief uncertified Brady claims, and they took up too much of his brief – 24 pages.
Reply at 15. (The Court of Appeals did not certify the Brady claims. See Mem. at
6, Kills On Top, No. 05-35433 (9th Cir. June 20, 2007) (Doc. 46-1 at 7).) Page
limits and the concomitant need to select certain issues and shorten one’s treatment
of others, or relinquish them altogether, certainly limit a litigant’s presentation of
his claims, but they are hardly an extraordinary circumstance preventing him from
appealing.
In sum, therefore, Kills On Top considered which issues were strongest and
chose to raise them and abandon others on appeal. “By no stretch of imagination
can the voluntary, deliberate, free, untrammeled choice of petitioner not to appeal,”
Ackermann, 340 U.S. at 200, justify reopening the original proceedings eight years
after Kills On Top should have appealed this Court’s dismissal with prejudice of
Claim P.

18

2. Kills On Top Fails to Demonstrate Error
Second, the fact that a state court chose to hear Kills On Top’s application
for sentence review in 2012 does not mean this Court erred when it found, in 2005,
that Claim P was procedurally defaulted.
The Judges of the Sentence Review Division excused Kills On Top’s
untimely filing in 2012 because they concluded that he was not given notice, in the
form required by state law, of his right to apply in 1998 for sentence review. See
Hinson to SRD Judges at 1-2 (Doc. 106-1 at 42-43); see also Reply at 13-14. But
Kills On Top had the same notice of his opportunity to apply for sentence review
as he had of his opportunity to take a direct appeal, to apply for postconviction
relief, and to apply for federal habeas relief. A statute advised him of it. Mont.
Code Ann. § 46-18-903(1) (1997).4 Moreover, the Montana Supreme Court’s
opinion on Kills On Top’s second postconviction appeal also directed him to
sentence review. See Kills On Top v. State, 15 P.3d 422, 440 ¶ 38 (Mont. 2000).
Kills On Top has been represented by counsel from the outset of the criminal
proceedings in state court.
4

At the time of Kills On Top’s re-sentencing, the statute did not require
written notice to be given to the defendant’s attorney, only to the defendant. See
2003 Mont. Laws ch. 69 §§ 3, 6 (eff. July 1, 2003). Compare Reply at 13 (stating
that “petitioner and his counsel were not properly notified of his right to sentence
review in accordance with Montana law”) (emphasis added). In addition, Montana
law apparently contains no equivalent to Fed. R. Crim. P. 32(j) and does not
require a sentencing judge to advise a defendant of his right to take a direct appeal.
Counsel does that.
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Because he certainly knew of the availability of sentence review, if Kills On
Top believed there was some significance in the trial court’s failure to effect notice
in the form prescribed by the state statute, he could and should have brought the
lack of notice to the attention of this Court when he was expressly given an
opportunity in 2003 to excuse his procedural default of Claim P. Order (Doc. 27) at
28-30. His failure to do so does not constitute an error by the Court. And an
attorney’s decision or oversight is not an extraordinary circumstance justifying
relief under Rule 60(b)(6). Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010).
3. Any Claim of “Clear Error” Is Time-Barred
Even assuming, for the sake of argument, that the Court’s decision of Claim
P was erroneous in some way Kills On Top has failed to identify, he still could not
obtain relief under Rule 60(b). Provided the mistake amounts to “clear error,”
McDowell v. Calderon, 197 F.3d 1253, 1255 n.4 (9th Cir. 1999) (en banc), “a
district court’s erroneous reading of the law is a ‘mistake’ sufficient to require
reconsideration of an order” under Rule 60(b), Yniques v. Cabral, 985 F.2d 1031,
1034 (9th Cir. 1993) (citing Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th
Cir. 1982), and Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.
1966)), qualified by McDowell, 197 F.3d at 1255 n.4.
But “mistake” is a ground for relief listed in Rule 60(b)(1). Motions under
Rule 60(b)(1) must be made “no more than a year after the entry of the judgment
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or order or the date of the proceeding.” Fed. R. Civ. P. 60(c). In other words, if this
Court committed clear error, Kills On Top had to correct it by filing a Rule
60(b)(1) motion on or before May 16, 2012, at the latest (assuming, without
deciding, that the denial of his petition for writ of certiorari serves as the trigger
date under Rule 60(c)). He did not file until March 14, 2014. To the extent he was
unaware of “clear error” until the Sentence Review Division agreed to hear his
application, the error was not clear and was not committed by this Court.
Where another subsection of Rule 60(b) is pertinent but does not support
relief, subsection (b)(6), allowing a court to consider “any other reason that
justifies relief,” does not apply. Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863 (1988); Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088-89 (9th Cir.
2001). Consequently, even if the Court committed clear error in dismissing Claim
P with prejudice as procedurally defaulted, Kills On Top cannot obtain relief at this
late date.
E. Rule 8 of the Sentence Review Division Rules
In his reply brief, Kills On Top raises an argument for the first time. Kills
On Top suggests that Rule 8 of the Rules of the Sentence Review Division of the
Montana Supreme Court required him, in effect, to exhaust his federal remedies
before exhausting his state remedies. See Reply (Doc. 109) at 9, 14, 15. This
argument would, if supportable, mean that he could simply file a new habeas
21

petition, and it would not be subject to the stringent restrictions on second or
successive petitions. His Rule 60(b) motion would be inapposite, but he could still
proceed to a hearing on the merits of Claim P in this Court without obtaining the
Court of Appeals’ leave to file under 28 U.S.C. § 2244(b). The Court rejects this
argument for the following reasons
Generally, petitioners may not return to federal court to litigate claims
exhausted after disposition of their first federal habeas petition. On the contrary,
before filing in federal court they are required to exhaust in state court all the
federal habeas claims they intend to make. See, e.g., Slack v. McDaniel, 529 U.S.
484, 486-89 (2000); Rose v. Lundy, 455 U.S. 509, 520 (1982); see also Rhines, 544
U.S. at 275-76. But there is an exception. If Claim P was unripe when Kills On
Top filed his petition in 2001, then he might file a new petition that would not be
subject to the requirements for filing second or successive petitions.
For example, a claim under Ford v. Wainwright, 477 U.S. 399 (1986),
alleging that a capital petitioner cannot be executed because he is incompetent, is
ripe only at the point of execution of the sentence. Thus, a Ford claim typically
cannot be made until an execution date is set, and a date typically is not set (or is
stayed) until the conclusion of both direct and collateral challenges to the
conviction and sentence. For those reasons, a Ford claim need not be made in a
first habeas petition challenging the conviction and sentence. Another federal
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habeas petition presenting a Ford claim may be filed subsequently to the first
without being “second or successive” within the meaning of 28 U.S.C. § 2244(b).
See, e.g., Panetti v. Quarterman, 551 U.S. 930, 943-47 (2007); Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-44 (1998).
Kills On Top does not say so, but these cases are implicated in his
suggestion that state law required him to proceed in federal court before he could
apply for sentence review in state court. He is mistaken, however, about what
Sentence Review Division Rule 8 said. It said:
When there is a pending appeal or request for post-conviction relief,
the application for Sentence Review should not be filed until such
time as the petition for post-conviction relief or appeal has been
determined, at which time the defendant shall be given sixty (60) days
in which to file for review of the sentence.
Rule 8, Sentence Review Division Rules (1999).5

5

The Court has a copy of the 1999 Rules of the Sentence Review Division,
signed by Judges Phillips, Langton, and Johnson, in which this rule is the second
paragraph of Rule 7. See also Hinson to Parker (Doc. 106-1 at 40) (referring to
Rule 7 and quoting the same language quoted here). At least in some previous
Thomson-West publications, the language is in both the second paragraph of Rule
7 and Rule 8. See, e.g., Rules of the Sentence Review Division, Montana Rules of
Court (State) (2008). But the language is identical regardless of the number.
The Rules of the Sentence Review Division were amended effective October
28, 2013. The issue discussed here is now addressed in Rule 2, paras. 1 and 2, of
the amended rules: “Within sixty (60) days after sentence is imposed, a defendant
may apply for the sentence to be reviewed by the Division. [¶] If an appeal to the
Supreme Court or petition for post conviction relief is filed, the 60 day period
commences when the appeal or petition is complete.” Although the old rules are
pertinent here, the current Rule 2 is consistent with the Court’s discussion and
conclusion.
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The rule did not refer to a federal petition for writ of habeas corpus.
The highest authority in the land has long required state prisoners to delay filing in
federal court until “the state court shall have finally acted on the case.” Ex parte
Royall, 117 U.S. 241, 253 (1886).
Also, Rule 8 did not require that an appeal or a postconviction petition had
to be filed and determined before a sentence review application could be filed. The
rule referred only to an appeal or petition that is pending when an applicant
contemplated applying for sentence review. In effect, the rule said to its readers, “if
you happen to have an appeal or postconviction petition pending right now, please
hold on to your sentence review application and submit it within 60 days of
conclusion of those proceedings.”
Further, Rule 8 addressed an exception. The general rule was and is stated in
the controlling statute, Mont. Code Ann. § 46-18-903(1). It requires a defendant to
file for sentence review within 60 days of the imposition of the sentence. (Sixty
days is also the period of time for filing a notice of appeal to the Montana Supreme
Court. Mont. R. App. P. 4(5)(b)(i)). The 1999 versions of Sentence Review
Division Rules 1 and 7 echoed this requirement. An application filed more than
sixty days after sentencing was untimely, the defendant had to give reasons why
his application should be heard, and the SRD could have “refuse[d] to hear such
application.” Sentence Review Division 7 para. 1; see also Mont. Code Ann. § 4624

18-903(3). But the Rule stated the Division “will hear late applications which have
been caused by the taking of an appeal to the Montana Supreme Court.” Sentence
Review Division 7 para. 1 (1999) (emphasis added). Rule 8, or Rule 7 para. 2,
simply created a limited “safe harbor” when a defendant had an appeal or
postconviction petition pending at the time he considered applying for sentence
review.
Even if Rule 8 had said what Kills On Top says, he did not follow the rule.
He did not file his sentence review application within 60 days of any notable event.
He filed on February 3, 2012 – 263 days after the conclusion of his federal habeas
proceedings in the United States Supreme Court on May 16, 2011. In fact, even if
SRD Rule 8 applied as Kills On Top suggests, so that his Rule 60 motion should be
deemed a new petition, the new petition would be time-barred. With tolling for
sentence review proceedings between February 3, 2012, and February 26, 2013, as
well as for his litigation of a petition for supervisory control in the Montana
Supreme Court between July 29 and November 26, 2013, Kills On Top’s Rule 60
motion was filed 159 days too late.
Former Sentence Review Division Rule 8 has no role to play in the
determination of Kills On Top’s Rule 60(b) motion.
F. Conclusion
Kills On Top had the “one fair shot at habeas review that Congress intended
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that he have.” Gonzalez, 545 U.S. at 542 (Stevens, J., dissenting), quoted without
proper attribution in Reply at 15. He chose to present Claim P in his federal
habeas petition without first applying for sentence review. He asserted in this Court
that Claim P was properly exhausted. When Claim P was dismissed with prejudice
as procedurally defaulted without excuse, he chose not to appeal. Instead, he
appealed other claims. Having failed to obtain federal habeas relief, and having
been denied a writ of certiorari in May 2011, Kills On Top finally applied in state
court on February 3, 2012, for review of his 1998 sentence. The Sentence Review
Division found it had discretion to hear the application in light of a defect in the
notice procedure prescribed by state law. But neither its decision nor anything in
the entire course of the nearly ten-year federal habeas proceedings constitutes an
extraordinary circumstance that prevented Kills On Top from fully litigating Claim
P. The Court may not reopen the federal habeas proceedings under Fed. R. Civ. P.
60(b)(6) so that he may now litigate a claim he previously abandoned.
IV. Certificate of Appealability
The question remains open in the Ninth Circuit whether a petitioner always
requires a certificate of appealability (“COA”) to appeal an adverse ruling on a
motion under Fed. R. Civ. P. 60(b) when the underlying action is a petition under
28 U.S.C. § 2254. Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 2013).
Assuming a COA is required and permitted, it must be issued or denied
26

when the district court enters its final order. Rule 11(a), Rules Governing § 2254
Proceedings. A COA should issue as to those claims on which the petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the
district court’s resolution of [the] constitutional claims” or “conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Where a claim is dismissed on procedural grounds, the court must also
decide whether “jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Gonzalez v. Thaler, __ U.S. __, 132 S. Ct.
641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The Court has taken only a brief look at the merits of Claim P, but,
“[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.” Rummel v.
Estelle, 445 U.S. 263, 272 (1980). Moreover, Judge Anderson denied a certificate
of appealability. Order (Doc. 37) at 43 ¶ 4.
But even if Claim P meets the relatively low threshold for issuance of a
COA, Kills On Top fails to identify an extraordinary circumstance sufficient to
justify reopening of the federal habeas proceedings terminated in 2011. Kills On
Top does not identify any change in habeas procedural law that shows he was
27

erroneously deprived of a hearing on the merits, as occurred in Phelps. To
whatever extent the Court erred in dismissing Claim P as procedurally defaulted,
Kills On Top had every opportunity to correct error on appeal. He simply chose to
press his appeal on other grounds. If a state prisoner were entitled to reopen a
closed federal habeas proceeding whenever a state court subsequently decided to
rule on a claim, there would be little significance in either AEDPA’s restrictions on
second or successive petitions or its one-year limitations period. There is no reason
to encourage further proceedings. A COA will be denied.

Based on the foregoing, the Court enters the following:
ORDER
1. Kills On Top’s motion under Fed. R. Civ. P. 60(b)(6) (Doc. 103) is
DENIED.
2. To the extent the Court is required and permitted to consider a certificate
of appealability, it is DENIED.
DATED this 4th day of September, 2014.

/s/ Carolyn S. Ostby
Carolyn S. Ostby
United States Magistrate Judge

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