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Mr. Burke is counsel of record for Mr. King.

1

Charles L. Ryan is substituted for his predecessor, Dora B. Schriro, as Director 2

of the Arizona Department of Corrections, pursuant to Fed. R. Civ. P. 25(d).

Throughout this motion and the accompanying memorandum, “Dkt. No. ___”

3

will refer to items entered on this Court’s docket and “DA Dkt. No. ___” will refer

to items entered on the docket of the Arizona Supreme Court on direct appeal and in

subsequent proceedings. 

Jon M. Sands

Federal Public Defender

Michael L. Burke (Arizona Bar No. 013173)1

Assistant Federal Public Defender

Keith J. Hilzendeger (Arizona Bar No. 023685)

Research & Writing Specialist

850 West Adams, Suite 201

Phoenix, Arizona 85007

michael_burke@fd.org

keith_hilzendeger@fd.org

Telephone: (602) 382-2816

Facsimile: (602) 889-3960

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Eric John King,

Petitioner,

vs.

Charles L. Ryan, et al.,

2

Respondents.

No. CV 98-01277-PHX-RCB

MOTION FOR RELIEF FROM

JUDGMENT PURSUANT TO

RULE 60(b)(6) OF THE FEDERAL

RULES OF CIVIL PROCEDURE

DEATH PENALTY CASE

Pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, Petitioner

Eric John King, by and through counsel, respectfully requests that this Court grant

him relief from its judgment entered on June 23, 2006. See Dkt. 78. Specifically, 3

Mr. King submits that the Court committed a grossly negligent error in its denial of

Claim Seven of Mr. King’s Second Amended Petition for Writ of Habeas Corpus.

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This motion is based on the attached Memorandum of Points and Authorities, all

pleadings and exhibits on file herein, and the entire state-court record in this case.

Respectfully submitted this 8th day of June, 2009.

Jon M. Sands

Federal Public Defender

Michael L. Burke

Assistant Federal Public Defender

By s/Michael L. Burke 

 Counsel for Petitioner

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Jon M. Sands

Federal Public Defender

Michael L. Burke (Arizona Bar No. 013173)

Assistant Federal Public Defender

Keith J. Hilzendeger (Arizona Bar No. 023685)

Research & Writing Specialist

850 West Adams, Suite 201

Phoenix, Arizona 85007

michael_burke@fd.org

keith_hilzendeger@fd.org

Telephone: (602) 382-2816

Facsimile: (602) 889-3960

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Eric John King,

Petitioner,

vs.

Charles L. Ryan, et al.,

Respondents.

No. CV 98-01277-PHX-RCB

MEMORANDUM IN SUPPORT OF

MOTION FOR RELIEF FROM

JUDGMENT PURSUANT TO

RULE 60(b)(6) OF THE FEDERAL

RULES OF CIVIL PROCEDURE

DEATH PENALTY CASE

MEMORANDUM OF POINTS AND AUTHORITIES

In the course of reviewing the record of the proceedings in this case, counsel

for Mr. King have uncovered a troubling error in this Court’s order denying Mr. King

habeas relief. This Court ruled that Claim Seven in Mr. King’s § 2254 petition was

unexhausted, when in fact he presented to the Arizona Supreme Court both the factual

and legal grounds on which that claim rests. Mr. King is therefore asking this Court

to relieve him from its order of June 23, 2006, denying his habeas petition, and

conduct further proceedings as necessary to rule on the merits of Claim Seven. 

RELEVANT FACTS

In affirming Mr. King’s death sentence, the Arizona Supreme Court ruled that,

as a matter of law, one of the aggravating factors had to be struck. See State v. King,

883 P.2d 1024, 1040-43 (Ariz. 1994). It then had to either reweigh the aggravating

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and mitigating factors that remained or remand the case to the trial court for

resentencing. See Clemons v. Mississippi, 494 U.S. 738, 752 (1990). The court chose

to reweigh, and purported to do so, but ruled that there was “simply nothing to weigh

or balance.” King, 883 P.2d at 1045. It then affirmed Mr. King’s death sentence. 

Mr. King filed a motion for reconsideration. In that motion, he argued that the

Arizona Supreme Court had not carried out its duty under the Eighth Amendment

because it “effectively eliminated appellate review of the factual balancing which

produced his capital sentence.” DA Dkt. 43 at 2. (A copy of the motion for

reconsideration is attached to this memorandum as Appendix A.) By its purported

“reweighing” ofthe aggravating and mitigating factors,Mr. King argued, the Arizona

court abdicated its obligation to conduct independent appellate review of the death

sentence. Id. at 6-7. By virtue ofthe Arizona Supreme Court’s “reweighing” process,

there had “been no review of the final factual balancing,” and hence the sentence was

unconstitutional. Id. at 8. The State countered that the Arizona Supreme Court “did

not commit federal constitutional error by exercising its appellate judgment in

upholding the death penalty.” DA Dkt. No. 45 at 4. (A copy of the State’s response

to the motion for reconsideration is attached to this memorandum as Appendix B.)

The Arizona Supreme Court denied Mr. King’s motion for reconsideration without

comment. DA Dkt. No. 46. (A copy of the Arizona Supreme Court’s denial of the

motion for reconsideration is attached to this memorandum as Appendix C.)

After completing state postconviction proceedings, Mr. King sought relief in

this Court pursuant to 28 U.S.C. § 2254. Dkt. No. 1. He ultimately filed a Second

Amended Petition in which he contended, among other things, that he was entitled

to a new sentencing hearing because the Arizona Supreme Court held that there was

“simply nothing to weigh or balance” after it “found that one of the three aggravating

circumstances found by the trial court was inapplicable.” Dkt. No. 26 at 6. He later

argued that the Arizona Supreme Court did not comply with its obligations under

Clemons v. Mississippi, 494 U.S. 738 (1990), and Stringer v. Black, 503 U.S. 222

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This assertion is remarkable because it was made by the same Assistant 4

Attorney General who had responded to the motion for reconsideration before the

Arizona Supreme Court.

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(1993). See Dkt. No. 39 at 5. 

On September 30, 1998, this Court ordered from the Arizona Supreme Court

“a certified copy of Petitioner’s entire state court record.” Dkt. No. 19 at 1. On

October 29, 1998, the Arizona Supreme Court released a certified copy of its “record

on file and docketed in” Mr. King’s case. DA Dkt. No. 59. That record included the

motion for reconsideration that Mr. King had filed after the Arizona Supreme Court

affirmed his sentence on direct appeal. See also Dkt. No. 21 (certification of the clerk

of the Arizona Supreme Court, including that court’s docket). That document was

before this Court while it was deciding the claims Mr. King had raised.

The seventh claim Mr. King raised before this Court involved the same

Clemons claim that he had raised in his motion forreconsideration before the Arizona

Supreme Court. Respondentsinsisted that they should not have to answer Mr. King’s

§ 2254 petition until he first affirmatively stated how he had fairly presented his

claims to the Arizona courts. See Dkt. No. 23 at 2. Mr. King’s Second Amended

Petition thus explained that the “Arizona Supreme Court dealt with” the issue

presented in Claim Seven “in their Opinion of November 3, 1994.” Dkt. No. 26 at 6.

Respondents did not defend Claim Seven on the merits in this Court. Rather, they

maintained that Claim Seven was unexhausted because “Petitioner did not file a

motion for reconsideration on this issue.” Dkt. No. 31 at 9. In his traverse, Mr. King 4

protested that this issue “wasraised before the Arizona Supreme Court.” Dkt. No. 39

at 5. In their reply to the traverse, Respondents asserted that Mr. King did not

“identify where he presented this issue of the court’s failure to reweigh to the Arizona

Supreme Court.” Dkt. No. 40 at 8. Mr. King insisted in his surreply to the traverse

that a “careful reading of the [Arizona Supreme] Court’s Opinion demonstrates that

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although it recognizes the constitutional need to reweigh, it does not reweigh.” Dkt.

No. 41 at 8. Neither Mr. King’s counsel nor Respondents pointed to the motion for

reconsideration filed on direct appeal as having fairly presented Claim Seven to the

Arizona Supreme Court. 

On September 26, 2000, this Court denied Claim Seven as unexhausted and

therefore procedurally defaulted. It expressly rejected the 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. No. 46 at

14. It reasoned that the proper vehicle for raising this claim under Arizona law is a

motion for reconsideration on direct appeal. See id. (citing Correll v. Stewart, 137

F.3d 1404, 1418 (9th Cir. 1998)). But it ruled 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. Hence, the claim was unexhausted and

procedurally barred. See id. (citing Ariz. R. Crim. P. 32.2(a)(3)). Because Mr. King

did not argue cause and prejudice or a fundamental miscarriage of justice, this Court

denied Claim Seven as procedurally defaulted. Id. 

After this Court issued its September 2000 ruling, attorney Dan Maynard, who

was representing Mr. King before this Court, asked for an extension of time to file a

motion for reconsideration. Dkt. No. 47. This Court granted the request, Dkt. No.

48, but Mr. Maynard did not file the motion. Over the next sixty-nine months, until

this Court ultimately denied relief, neither the parties nor this Court revisited the

erroneous conclusion that Mr. King did not file a motion for reconsideration in the

Arizona Supreme Court. Indeed, in his opening brief to the United States Court of

Appeals for the Ninth Circuit, Mr. Maynard continued to assert that Claim Seven was

“raised before the Arizona Supreme Court which specifically notes in its Opinion that

it has to reweigh.” 9th Cir. Reformatted Opening Br. at 53. 

The Ninth Circuit Court of Appeals affirmed this Court’s denial of Mr. King’s

§ 2254 petition. See King v. Schriro, 537 F.3d 1062 (9th Cir. 2008), cert. denied, 129

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S. Ct. 1582 (2009). On March 31, 2009, the Ninth Circuit granted Mr. Maynard’s

motion to withdraw and to substitute the Federal Public Defender for the District of

Arizona in his place. Meanwhile, the State of Arizona asked the Arizona Supreme

Court for a warrant of execution. See Ariz. Rev. Stat. § 13-759(A). 

On April 20, 2009, that court continued the State’s motion for fourteen days

to allow Mr. King to file a successive petition for state postconviction relief. Mr.

King filed a third petition for postconviction relief in the Maricopa County Superior

Court on May 4, 2009. The Arizona Supreme Court denied the State’s request for a

warrant of execution on May 6, 2009.

DISCUSSION

A district court may “relieve a party . . . from a final judgment” for any “reason

that justifies relief” if the terms for doing so are just. Fed. R. Civ. P. 60(b)(6). The

party requesting such relief must do so within a “reasonable time.” Fed. R. Civ. P.

60(c)(1). But relief under Rule 60(b)(6) is only available if the moving party points

to “extraordinary circumstances justifying the reopening of a final judgment.”

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). 

In this case, Mr. King asserts two extraordinary circumstances that justify relief

from judgment. First, this Court committed a grossly negligent error when it failed

to discern that Claim Seven was in fact fairly presented to the Arizona Supreme Court

in a motion for reconsideration on direct appeal. Second, former habeas counsel for

Mr. King failed to independently verify this Court’s ruling once this Court committed

its grossly negligent error, even though former counsel represented Mr. King in this

Court for sixty-nine months after the error occurred and for an additional thirty-three

months in appellate proceedings.

While it was entertaining Mr. King’s § 2254 petition, this Court had all the

information it needed to evaluate and correctly determine whether it could review his

claims on the merits. It had ordered the entire state-court record from the Arizona

Supreme Court, and the Arizona Supreme Court transmitted that record to this Court.

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That record included a copy of the motion for reconsideration that this Court asserted

Mr. King did not file. Mr. King’s motion for reconsideration was listed as entry 43

on the docket of the Arizona Supreme Court. In that motion, Mr. King had argued

that the Arizona Supreme Court failed to reweigh the aggravating and mitigating

evidence as the Eighth Amendment required it to do once that court struck one of the

aggravating factors upon which the trial court had relied to impose the death

sentence. Mr. King presented the factual and legal bases of Claim Seven to the

Arizona Supreme Court, and therefore Claim Seven was properly exhausted. See

Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (exhaustion of legal basis

required); Picard v. Connor, 404 U.S. 270, 277-78 (1971) (exhaustion of factual basis

required). 

This Court’s evident failure to review the relevant state court record in Mr.

King’s case constitutes “extraordinary circumstances” justifying relief pursuant to

Rule 60(b)(6). As the Ninth Circuit Court of Appeals has observed, “A district

court’s denial of a habeas corpus petition may not be affirmed unless the record on

appeal indicates that the court independently reviewed all relevant portions of the

state court record.” Chaney v. Lewis, 801 F.2d 1191, 1193 (9th Cir. 1986) (citing

Johnson v. Lumpkin, 769 F.2d 630, 636 (9th Cir. 1985); and Rhinehart v. Gunn, 598

F.2d 557, 558 (9th Cir. 1979)). At the very least, before denying a capital petitioner

habeas relief, the district court has an independent responsibility to confirm that the

basis for its decision to deny a constitutional claim (e.g. failure to exhaust the claim

by not filing a motion for reconsideration before the state supreme court) is factually

accurate. In this case, the Court failed to satisfy this minimum requirement.

The fact that the parties never alerted the Court to the grossly negligent error

it committed only exacerbates the effect of that error. Mr. Maynard, former habeas

counsel, did not render the meaningful assistance required of him, because he failed

to independently review this Court’s erroneous conclusion that Claim Seven had

never been fairly presented to the Arizona Supreme Court. It would not have been

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Mr. Maynard’s failure to bring this Court’s blatant error to its attention is

5

made even more egregious by the fact that he sought, and was granted, extra time in

which to file a motion for reconsideration of this Court’s September 2000 procedural

ruling. Mr. Maynard never filed the motion for reconsideration he promised in 2000.

Nor did he raise the issue in the Rule 59 motion he filed in July of 2006. See Dkt. No.

80. His failure to identify this Court’s obvious mischaracterization of the state-court

record, either before this Court or on appeal, can only be the result of his failure to

accord Mr. King the meaningful assistance of counsel to which he was entitled. See

Rohan ex rel. Gates, 334 F.3d at 813. 

9

difficult for Mr. Maynard to do so—all he had to do was inspect the record of the

proceedings before the Arizona Supreme Court. Yet in the ensuing eight-and-a-half

years, Mr. Maynard never did that.

A thorough examination of the pleadings Mr. Maynard filed on Mr. King’s

behalf, both in this Court and in the Ninth Circuit Court of Appeals, suggests that Mr.

Maynard never knew about the motion for reconsideration filed in the Arizona

Supreme Court. Mr. Maynard consistently asserted that the simple fact that the

Arizona Supreme Court purported to reweigh the aggravating and mitigating factors

was sufficient by itself to fairly present the Clemons claim he raised as Claim Seven

before this Court. See Dkt. No. 26 at 6; Dkt. No. 31 at 5; Dkt. No. 41 at 8; 9th Cir.

Reformatted Opening Brief at 53-54. Mr. Maynard may have made the correct

argument in favor of exhaustion if he had examined the state-court record. By failing

to do so, he did not render meaningful assistance of habeas counsel to Mr. King. See

Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 813 (9th Cir. 2003) (“meaningful

assistance of counsel is essential to secure federal constitutional rights” in habeas

proceedings). Indeed, Mr. Maynard’s failure to confirm that his client had in fact 5

filed a motion for reconsideration with the Arizona Supreme Court – an act that

merely would have required looking in a file – amounted to gross negligence. The

Ninth Circuit Court of Appeals has held that, standing alone, gross negligence on the

part of an attorney may be sufficient to constitute “extraordinary circumstances” for

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purposes of granting relief pursuant to Rule 60(b)(6). Community Dental Services v.

Tani, 282 F.3d 1164, 1170 n. 12 (9th Cir. 2002). In this case, Mr. Maynard’s gross

negligence was compounded by what appears to be this Court’s own troubling failure

simply even to review the direct appeal record in a capital habeas case. 

CONCLUSION

Relief from judgment under Rule 60(b)(6) is to be “used sparingly as an

equitable remedy to prevent manifest injustice.” Harvest v. Castro, 531 F.3d 737,

749 (9th Cir. 2008). In this case it would be manifestly unjust for this Court not to

relieve Mr. King from its judgment on Claim Seven. That judgment rested on a

grossly negligent error that this Court committed when it ruled that Claim Seven was

unexhausted because Mr. King did not file a motion for reconsideration in the

Arizona Supreme Court. The equities counsel in favor of relief from judgment,

because this Court overlooked an aspect of the state-court record that was easily

available to it, and Mr. Maynard did nothing to correct the Court’s misapprehension.

For the foregoing reasons, Mr. King respectfully requests that this Court grant him

relief from its judgment of June 23, 2006, as to Claim Seven; and upon reviewing

Claim Seven on its merits, grant the writ of habeas corpus and order the Arizona

courts to conduct a new sentencing hearing in this matter. 

Respectfully submitted this 8th day of June, 2009.

Jon M. Sands

Federal Public Defender

Michael L. Burke

Assistant Federal Public Defender 

Keith J. Hilzendeger

Research & Writing Specialist

By s/Michael L. Burke 

 Counsel for Petitioner

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CERTIFICATE OF SERVICE

On this 8th day of June, 2009, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF system for filing and transmittal

of a notice of electronic filing to the following CM/ECF registrants:

John Pressley Todd

Assistant Attorney General

Office of the Arizona Attorney General

1275 West Washington Street

Phoenix, Arizona 85007-2997

 s/Nancy Rangel 

Secretary, Capital Habeas Unit

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