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Kiehle v. Ryan

United States District Court, Ninth Circuit

October 18, 2013

David Wayne Kiehle, Petitioner,
Charles L. Ryan, et al., Respondents.


G. MURRAY SNOW, District Judge.

Pending before the Court is Petitioner's Motion for Relief from Judgment. (Doc. 48.) For the following reasons, the Motion is denied.


A jury initially convicted David Wayne Kiehle of first-degree murder in 1999 for the death of his wife. (Doc. 15, Ex. B.) In 2004, Kiehle was granted a new trial, and in 2005, he was convicted of second-degree murder. ( Id., Ex. F.) Kiehle pursued a direct appeal and post-conviction relief in Arizona courts, both with the assistance of counsel. (Doc. 18, Exs. EE, II-UU.) Kiehle filed this § 2254 habeas petition pro se and Magistrate Judge Burns denied his motion for the appointment of counsel. (Docs. 1, 7, 11.)

This Court denied Kiehle's habeas petition and granted a certificate of appealability. (Doc. 27.) Kiehle initiated an appeal to the Ninth Circuit Court of Appeals, (Doc. 33), but then obtained leave to file a motion for relief from judgment with this Court, (Doc. 44). In his Motion for Relief from Judgment, Kiehle asks the Court to vacate its decision because of an alleged misapplication of the law related to the appointment of counsel. (Doc. 48.)


I. Jurisdiction

As noted in a previous order, a district court ordinarily lacks jurisdiction over matters that are the subject of a pending appeal. (Doc. 47.) In this case, the Ninth Circuit Court of Appeals has remanded the case to this Court for the limited purpose of considering this Rule 60(b) motion. (Docs. 49, 52.) Additionally, this Court's jurisdiction rests upon whether this is a permissible Rule 60(b) motion, or an impermissible second or successive habeas corpus application.

Rule 60(b) lists six reasons why a court may order relief from a final judgment. Fed.R.Civ.P. 60(b). Rule 60(b)(1) applies when there has been a "mistake, inadvertence, surprise, or excusable neglect;" and 60 (b)(6) covers the general category of "any other reason that justifies relief." Id.

Second or successive habeas corpus applications are severely limited under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(b). Although AEDPA does not expressly limit the application of Rule 60(b), the specific rules governing § 2254 proceedings only provide that the Federal Rules of Civil Procedure may be applied "to the extent that they are not inconsistent with any statutory provisions." Id. § 2254, Rule 12. Rule 60(b) motions which seek to advance a claim, such as by adding a new ground for relief or attacking the merits of the court's previous resolution, are impermissible second or successive habeas applications. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). Rule 60(b) motions that attack the integrity of the habeas proceedings without raising such claims are permissible. Id.

Kiehle's Motion is a permissible Rule 60(b) motion because he attacks the integrity of the proceedings by attacking the Court's refusal to appoint counsel. The lack of appointed counsel is not a new ground for habeas relief or an attack on the merits of the Court's resolution. While any relief from judgment under Rule 60(b) might lead to a new opportunity to make claims for relief, that would not be an impermissible second or successive petition because the Rule 60(b) relief would nullify the original judgment.

II. Interests of Justice

Although Kiehle's motion is not prohibited under AEDPA, it remains within the discretion of the Court whether to grant a Rule 60(b) motion. Ordinarily, legal errors are corrected on appeal and do not call for an application of Rule 60(b). Plotkin v. P. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). Rule 60(b) motions must be made within a reasonable time, and for motions based on Rule 60(b)(1), that reasonable time can be no more than one year after judgment. Gonzalez, 545 U.S. at 535. Claims under Rule 60(b)(6) require "extraordinary circumstances" and "will rarely occur in the habeas context." Id.

In his motion for Rule 60(b) relief, Kiehle alleges that the Court made a mistake of law by applying the wrong standard in its decision to deny him appointed counsel. A court must consider and apply both constitutional and statutory standards. Constitutionally, an indigent habeas petitioner has no right to counsel under the Sixth Amendment, and will only be entitled to counsel if "the circumstances of a particular case indicate that ...

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