United States District Court, D. Kansas
ANTHONY S. KIDD, Petitioner,
STATE OF KANSAS, Respondent.
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
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,
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
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.
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
Allegations of Fraud
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 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.
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.
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 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.
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 ...