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Vern Kills On Top v. Kirkegard

United States District Court, D. Montana, Billings Division

September 4, 2014

VERN KILLS ON TOP, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

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

CAROLYN S. OSTBY, Magistrate Judge.

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).

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 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 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. 05-35433 (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).

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.

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 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 ...


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