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1 Charles L. Ryan, Interim Director of the Arizona Department of Corrections, is

substituted as Respondent pursuant to Federal Rule of Civil Procedure 25(d).

WO 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Eric John King, ) No. CV-98-1277-PHX-RCB

)

Petitioner, ) DEATH PENALTY CASE

)

vs. )

) ORDER

) Charles L. Ryan, et al.,1 )

) 

Respondents. )

)

Before the Court is Petitioner’s Motion for Relief from Judgment Pursuant to Rule

60(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 98.) Respondents oppose the motion.

(Dkt. 100.) For the reasons set forth herein, the motion is denied.

BACKGROUND

In affirming Petitioner’s death sentence on direct appeal, the Arizona Supreme Court

held that the trial court erred with respect to one of the three aggravating factors found at

sentencing. State v. King, 180 Ariz. 268, 284-287, 883 P.2d 1024, 1040-43 (1994). After

striking the factor, the supreme court determined that the case fell within the class of cases

where “this court appropriately reweighs rather than remands.” Id. at 1044. The court then

reweighed the remaining aggravating factors and the mitigating circumstances found by the

trial court and affirmed Petitioner’s death sentence. Id. at 1045.

Petitioner filed a motion for reconsideration, arguing that “appellate reweighing
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violates the Due Process Clause of the Fourteenth and Eighth Amendments of the United

States Constitution.” (Dkt. 98, App. A at 3.) He argued that reweighing as performed by the

Arizona Supreme Court violates the Eighth Amendment because it takes place “without

proportionality or conventional appellate review.” (Id. at 8.) The Arizona Supreme Court

denied the motion for reconsideration without comment. (Dkt. 98, App. C.)

In Claim 7 of his amended habeas petition, Petitioner asserted that the Arizona

Supreme Court erred in its assessment of the mitigation information. (Dkt. 26 at 6.) He

subsequently argued that the Arizona Supreme Court failed to reweigh the aggravating and

mitigating circumstances, in violation of Clemons v. Mississippi, 494 U.S. 738 (1990), and

Stringer v. Black, 503 U.S. 222 (1993). (Dkt. 39 at 5.) In their answer, Respondents

countered that the claim had not been exhausted in state court because Petitioner did not file

a motion for reconsideration with the Arizona Supreme Court. (Dkt. 31 at 9.) In reply,

Petitioner did not assert that he had raised the claim in a motion for reconsideration, but

contended that the claim was exhausted because the Arizona Supreme Court addressed the

issue in its decision affirming the death sentence. (See Dkts. 26 at 6, 39 at 5, 41 at 8.) 

In an order dated September 26, 2000, this Court dismissed Claim 7 as unexhausted

and procedurally defaulted, rejecting Petitioner’s contention that “this claim was addressed

sua sponte by the Arizona Supreme Court when it recognized that it had a duty to reweigh

the aggravating and mitigating circumstances.” (Dkt. 46 at 14.) The order stated that the

proper vehicle for raising the claim under Arizona law was a motion for reconsideration on

direct appeal and indicated that “Petitioner did not file a motion for reconsideration in the

Arizona Supreme Court after it issued its ruling regarding Petitioner’s direct appeal.” (Id. at

15.)

Counsel for Petitioner sought an extension of time to file a motion for reconsideration

of the Court’s order. (Dkt. No. 47.) The Court granted the request (Dkt. 48), but Petitioner

did not file a motion. 

The Court denied Petitioner’s amended habeas petition on June 23, 2006. (Dkts. 77,
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2 On March 31, 2009, the Ninth Circuit granted the motion of habeas counsel to

withdraw and substituted the Federal Public Defender for the District of Arizona. 

3 A motion under Rule 60(b)(1), which entitles a party to relief based on “mistake,

inadvertence, surprise, or excusable neglect,” must be brought less than a year after entry of

judgment. Respondents contend that the present motion is properly characterized as seeking

relief under Rule 60(b)(1). The Court does not reach the issue, having found that Petitioner is

not entitled to relief under Rule 60(b)(6).

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78.) The Ninth Circuit Court of Appeals affirmed. King v. Schriro, 537 F.3d 1062 (9th Cir.

2008), cert. denied, 129 S. Ct. 1582 (2009).2

 Petitioner acknowledges that on appeal he did

not argue that Claim 7 was exhausted by his motion for reconsideration filed in state court.

(Dkt. 98 at 6, 9.)

DISCUSSION

Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from

judgment on several grounds, including the catch-all category “any other reason justifying

relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6). A motion under

subsection (b)(6) must be brought “within a reasonable time,” Fed. R. Civ. P. 60(c)(1), and

requires a showing of “extraordinary circumstances.”3

 Gonzalez v. Crosby, 545 U.S. 524

(2005). A party moving for relief under Rule 60(b)(6) “must demonstrate both injury and

circumstances beyond his control that prevented him from proceeding with the action in a

proper fashion.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting Latshaw v.

Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The Ninth Circuit has

emphasized that the rule is to be “used sparingly as an equitable remedy to prevent manifest

injustice and is to be utilized only where extraordinary circumstances prevented a party from

taking timely action to prevent or correct an erroneous judgment.” Latshaw, 452 F.3d at

1103. The United States Supreme Court has noted that “[s]uch circumstances will rarely

occur in the habeas context.” Gonzalez, 545 U.S. at 535. “Neglect or lack of diligence is not

to be remedied through Rule 60(b)(6).” Lehman v. United States, 154 F.3d 1010, 1017 (9th

Cir. 1998). 
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Petitioner contends that he is entitled to relief pursuant to Rule 60(b)(6) because the

Court’s dismissal of Claim 7 on procedural grounds was based on an erroneous finding that

the claim was not presented in state court when in fact, according to Petitioner, the issue was

raised in his motion for reconsideration to the Arizona Supreme Court. (Dkt. 98 at 7.) He

contends that this error, along with prior habeas counsel’s failure to identify it, constitutes

an extraordinary circumstance justifying relief. (Id.) The Court disagrees.

First, while neither party referenced Petitioner’s motion for reconsideration in their

arguments concerning exhaustion, and the Court did not cite the motion in its order, it is

evident that the Court’s procedural ruling with respect to Claim 7 was correct. In his motion

for reconsideration to the Arizona Supreme Court, Petitioner argued that the process of

reweighing as practiced in Arizona was unconstitutional because it failed to ensure

meaningful appellate review of a death sentence as required by, inter alia, Gregg v. Georgia,

428 U.S. 153, 166 (1976); Proffitt v. Florida, 428 U.S. 242, 250-51 (1976); Jurek v. Texas,

428 U.S. 262, 269, 276 (1976); and Godfrey v. Georgia, 446 U.S. 420, 429 (1980). (Dkt. 98,

Appx. A at 3-8.) In Claim 7 of his habeas petition, Petitioner, relying on Clemons and

Stringer, argued that the Arizona Supreme Court, in carrying out a constitutionally valid

appellate reweighing process, failed to account for the mitigating circumstances found by the

trial court. (See Dkts. 26 at 6, 39 at 5.) Thus, notwithstanding any factual error in this

Court’s statement that Petitioner did not file a motion for reconsideration in state court, the

Court correctly found that Claim 7 was not presented in state court and was therefore

unexhausted and procedurally barred.

Second, even if the Court had erred in finding that Claim 7 was unexhausted, it is a

well-established principle that “legal error does not by itself warrant the application of Rule

60(b). . . . Since legal error can usually be corrected on appeal, that factor without more does

not justify the granting of relief under Rule 60(b)(6).” Pridgen v. Shannon, 380 F.3d 721,

728 (3d Cir. 2004) (internal quotation omitted); see Cash v. Ill. Div. Of Mental Health, 209

F.3d 695, 698 (7th Cir. 2004) (“The rule is not an alternate route for correcting simple legal
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4 This is particularly true because, as noted above, the claim raised in the motion for

reconsideration states a different basis for relief than Claim 7 of the habeas petition; thus, it

is difficult to characterize as ineffective habeas counsel’s performance with respect to the

procedural status of Claim 7.

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errors.”); Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988) (“a Rule 60(b) motion may not

be used as a substitute for appeal, and . . . legal error, without more, cannot justify granting

a Rule 60(b) motion”). 

The Ninth Circuit has stated, however, that “an exception exists to this general rule:

a petitioner may qualify for relief under Rule 60(b) based on a legal error if he can show

‘extraordinary circumstances which prevented or rendered him unable to prosecute an

appeal.’” Griffin v. Lindsey, 345 F.3d 1058, 1063-64 (9th Cir. 2003), vacated on other

grounds as moot, 349 F.3d 1157 (9th Cir. 2003) (quoting Plotkin v. Pacific Tel. & Tel. Co.,

688 F.2d 1291, 1293 (9th Cir. 1982)). Petitioner has not demonstrated that extraordinary

circumstances prevented or rendered him unable to challenge the dismissal of Claim 7 either

before this Court on a motion for reconsideration or on appeal to the Ninth Circuit. 

Petitioner acknowledges that the motion for reconsideration filed in state court was

accessible as part of the record during the pendency of the habeas proceedings. Nothing

prevented Petitioner from discovering the document and arguing (albeit erroneously) that it

supported a finding of exhaustion with respect to Claim 7. Contrary to Petitioner’s argument,

the failure of habeas counsel to make use of the document does not constitute an

extraordinary circumstance beyond Petitioner’s control which would justify relief under Rule

60(b)(6).4

 See Gonzalez v. Crosby, 545 U.S. 524, 532 n.5 (2005) (ineffectiveness of habeas

counsel is not a ground for relief under Rule 60(b)(6)); Post v. Bradshaw, 422 F.3d 419, 423

(6th Cir. 2005) (same); cf. Pennsylvania v. Finley, 481 U.S. 551, 559 (1987) (no right to

effective assistance of habeas counsel).

Similar considerations dictate a finding that the pending motion is not timely. Almost

nine years have passed since the Court’s order on the procedural status of Petitioner’s habeas

claims. This is a period which cannot be characterized as a “reasonable time” under Rule
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60(b)(6).

Based on the foregoing,

IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment

Pursuant to Rule 60(b)(6) (Dkt. 98) is DENIED. 

Dated this 30th day of June, 2009.