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Kidd v. State

United States District Court, D. Kansas

January 26, 2018

ANTHONY S. KIDD, Petitioner,
v.
STATE OF KANSAS, Respondent.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

         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 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 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 ...


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