Evans v. Fink et al

Filing 50

ORDER dismissing 49 Petition for Reconsideration. To the extent a certificate of appealability is required and permitted, it is DENIED. Signed by Judge Donald W. Molloy on 11/20/2014. Mailed to Evans. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MARTY EVANS,

NOV 2 0 2014
Clerk. u.s. District COlin
District Of Montane;:
Missoula

Cause No. CV 11-112-M-DWM

Petitioner,
vs.

ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
APPEALABILITY

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

This case originally came before the Court on August 17, 2011, when
Petitioner Evans, a state prisoner proceeding pro se, applied for a writ of habeas
corpus under 28 U.S.C. § 2254. All but one ofhis claims were denied for lack of
merit. One claim was dismissed with prejudice as procedurally barred. Order (Doc.
33); Order (Doc. 44). The petition and a certificate of appealability were denied in
this Court on August 30,2013. On March 18,2014, the Ninth Circuit Court of
Appeals denied a certificate of appealability. Order at 1, Evans v. Kirkegard, No.
13-35828 (9th Cir. filed Mar. 18,2014) (Doc. 48).
On November 14, 2014, Evans filed a "Petition for Reconsideration."
Evans, a state prisoner proceeding pro se, returns to the facts underlying the claims
in his first petition in the hope of obtaining a different result. See, e.g., Findings
1

and Recommendation (Doc. 22) at 5, 6-23 ,-r,-r A-Z; Findings and Recommendation
(Doc. 41) at 3-7. Because Evans seeks a redetermination of the merit ofhis claims,
the "Petition for Reconsideration" is equivalent to a second application for federal
habeas corpus relief. Gonzalez v. Crosby, 545 U.S. 524, 533-34 (2005); 28 U.S.C.

§ 2244(b). This Court lacks jurisdiction to hear the "Petition" absent authorization
from the Court of Appeals. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam). Evans has not obtained such authorization. The "Petition for
Reconsideration" must be dismissed for lack ofjurisdiction.
The question remains open in the Ninth Circuit whether a movant always
requires a certificate of appealability to appeal an adverse ruling on a motion
under Fed. R. Civ. P. 60(b) when the underlying action is a motion under 28
U.S.C. § 2254. Jones v. Ryan, 733 F.3d 825,832 n.3 (9th Cir. 2013). Here, if a
certificate of appealability is required, it is not warranted. There is no doubt about
either the nature of Evans's claims or this Court's lack ofjurisdiction to hear them.

Gonzalez v. Thaler, _ U.S. _, 132 S. Ct. 641, 648 (2012) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).

Accordingly, IT IS HEREBY ORDERED as follows:
1. Evans's "Petition for Reconsideration" (Doc. 49) is DISMISSED for lack
ofjurisdiction.
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2. To the extent a certificate of appealability is required and permitted, it is
DENIED. The Clerk of Court shall immediately process the appeal ifEvans files a
notice of appeal.
3. This action is CLOSED. No further motions may be filed.

t-

DATED this

)..17

day of November, 2014.

olloy
t s District Court

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