United States District Court, S.D. California
(1) DENYING RULE 60(B) MOTION FOR RELIEF FROM
JUDGMENT, AND (2) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY [DOCKET NO. 103, 105, 107]
Roger T. Benitez United States District Judge.
March 3, 2009, this Court entered judgment denying Petitioner
Anthony Arthur Bush’s Petition for a Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254. (Docket Nos.
90-91.) Petitioner brought a challenge under Batson v.
Kentucky, 476 U.S. 79 (1986) based on the prosecutor
exercising a preemptory challenge to excuse the sole
remaining African American in the jury pool. Petitioner
appealed, and on February 16, 2011, the Ninth Circuit Court
of Appeals affirmed this Court’s judgment. Bush v.
Pliler, 413 Fed.Appx. 996 (9th Cir. February 16, 2011).
On January 19, 2016, Petitioner filed the instant Motion for
relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b)(6). (Docket No. 103.)
seeks relief from judgment based on a change in the law - the
Ninth Circuit’s recent decision in Shirley v.
Yates, 807 F.3d 1090 (9th Cir. 2015). Petitioner argues
that had his Petition been considered under Shirley,
he would have prevailed. The Court denies Petitioner’s
Rule 60(b) Motion because it is an unauthorized second or
successive habeas petition over which this Court lacks
60(b)(6), the provision under which [Petitioner] brought his
motion, permits reopening for ‘any . . . reason that
justifies relief’ other than the more specific reasons
set out in Rule 60(b)(1)-(5).” Jones v. Ryan, 733
F.3d 825, 833 (9th Cir. 2013) (quoting Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005)). Relief under Rule
60(b)(6) is only available when the petitioner shows
“‘extraordinary circumstances’ justifying
the reopening of a final judgment.” Id.
(quoting Gonzalez, 545 U.S. at 535).
considering the substance of the Motion, this Court must
first determine whether Petitioner’s Rule 60(b) motion
is in effect a second or successive habeas petition.
Gonzalez, 545 U.S. at 530-32. Second or successive
habeas petitions are generally prohibited “unless the
petitioner meets certain narrow requirements.”
Jones, 733 F.3d at 834 (citing 28 U.S.C. §
2244(b)). To avoid this high standard, “petitioners at
times have characterized their second or successive habeas
corpus petitions as Rule 60(b) motions.” Id.
Allowing a petitioner to do so would “impermissibly
circumvent the requirement that a successive habeas petition
be precertified by the court of appeals as falling within an
exception to the successive-petition bar.”
Gonzalez, 545 U.S. at 532 (citing §
motion that does not attack ‘the integrity of the
proceedings, but in effect asks for a second chance to have
the merits determined favorably’ raises a claim that
takes it outside the bounds of Rule 60(b) and within the
scope of [the Antiterrorism and Effective Death Penalty Act
of 1996’s] limitations on second or successive habeas
corpus petitions.” Jones, 733 F.3d at 834
(citing Gonzalez, 545 U.S. at 532 n.5). A motion
contending “that a subsequent change in substantive law
is a ‘reason justifying relief, ’ from the
previous denial of a claim, . . . although labeled a Rule
60(b) motion, is in substance a successive habeas petition
and should be treated accordingly.” Gonzalez,
545 U.S. at 531 (identifying the types of
“claims” that might be presented in a Rule 60(b)
motion, but would be subject to § 2244(b)). “[A]
Rule 60(b) motion based on a purported change in the
substantive law governing the claim could be used to
circumvent § 2244(b)(2)(A)’s dictate that the only
new law on which a successive petition may rely is ‘a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.’” Id. at 532.
reliance on Phelps v. Alameida is misplaced.
Although the case addressed the availability of relief under
Rule 60(b) when there had been changes in the law or
unsettled law became settled, the changes were on a
non-merits issue - timeliness. Phelps, 569 F.3d at
1127-1129. As the Supreme Court has explained, a petitioner
is not making a habeas 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.” Gonzalez, 545
U.S. at 532 n.4 (emphasis added). When, as here, this Court
and the Ninth Circuit have substantively resolved the merits
of the Petition, Rule 60(b) relief is not available.
Id. at 532 (finding a Rule 60(b) motion constitutes
a second or successive habeas petition when it “attacks
the federal court’s previous resolution of a claim
on the merits.”).
Petitioner’s Rule 60(b) motion is the equivalent of a
second or successive petition, this Court lacks jurisdiction
to consider the motion absent a certificate from the Ninth
Circuit authorizing the filing of the petition. 28 U.S.C.
§ 2244(b)(3)(A); see also Rishor v. Ferguson,
___ F.3d ___, 2016 WL 2610176, at *5 (“A
petitioner’s failure to seek such authorization from
the appropriate appellate court before filing a second or
successive habeas petition acts as a jurisdictional
Rule 60(b) motion for relief from judgment is DENIED for the
reasons set forth above. The denial is without prejudice to
Petitioner filing a second or successive petition in this
Court if he obtains permission from the Ninth Circuit
Court of Appeals. The Court DENIES a certificate of
appeal ability with respect to the denial of
Petitioner’s Rule 60(b) Motion. Petitioner’s
motions for appointment of counsel and for leave to proceed
IFP are DENIED as moot.