May 23, 2013
JOSE LUIS BUEN ROSTRO, aka JOSE LUIS BUENROSTRO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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, 2013 (Docket No. 359) be, and the same hereby is, DENIED.