WILLIAM B. SHUBB, District Judge.
On January 14, 2013, defendant/petitioner filed a "Motion for Relief from Judgment in prior 28 U.S.C. § 2255 Proceeding pursuant to Federal Rule of Civil Procedure 60(b)(6), due to Intervening Change in the Law." Although it is couched as a Rule 60(b) motion, this amounts to defendant's third successive motion under § 2255. See United States v. Buenrostro , 638 F.3d 720, 723 (9th Cir. 2011)("Because Buenrostro wants to bring a new claim for relief, wholly independent of the claims adjudicated in his first § 2255 proceeding, his Rule 60(b) motion must be treated as a § 2255 motion.").
In a subsequent pleading filed January 28, 2013, and entitled "Movant's Motion for Clarification and for the Court to take Judicial Notice that Movant's 1/14/2013 Motion is a Rule 60(b)(6) Motion due to Intervening Change in the Law and not a 28 U.S.C. § 2255, " defendant argues that his motion is based on a new rule of constitutional law set forth in Martinez v. Ryan , 132 S.Ct. 1309 (2012). However, in one of defendant's other appeals, the Ninth Circuit has already held that, "... Martinez cannot form the basis for an application for a second or successive motion because it did not announce a new rule of constitutional law." Buenrostro v. United States , 697 F.3d 1137, 1139 (9th Cir. 2012)
Defendant may not bring a successive § 2255 motion without first obtaining leave of the Ninth Circuit. 28 U.S.C. § 2255(h). He has still failed to do so. Accordingly, this most recent motion must be denied.
IT IS THEREFORE ORDERED that defendant's Motion for Relief from Judgment in prior 28 U.S.C. § 2255 Proceeding pursuant to Federal Rule of Civil Procedure 60(b)(6), due to Intervening Change in the Law, filed January 14, ...