United States v. Enio Zaragoza-Santa Cruz ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 12-35728 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. Nos. 2:10-cv-03085-EFS
2:08-cr-02095-EFS-2
v.
ENIO ZARAGOZA-SANTA CRUZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Submitted August 28, 2014**
Seattle, Washington
Before: HAWKINS, GRABER, and GOULD, Circuit Judges.
Petitioner timely appeals the district court’s order denying his motion for
reconsideration under Federal Rule of Civil Procedure 60(b). Reviewing de novo
whether Petitioner’s Rule 60(b) motion is an unauthorized second or successive
habeas petition, Jones v. Ryan, 733 F.3d 825, 833 (9th Cir.), cert. denied, 134 S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Ct. 503 (2013), we hold that it is. The district court therefore lacked jurisdiction to
entertain it. Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam).
Accordingly, we vacate the district court’s order and remand with instructions to
dismiss.
Petitioner’s Rule 60(b) motion is, by its substance, a "disguised second or
successive § 2255 motion" barred by 28 U.S.C. § 2255(h). United States v.
Washington, 653 F.3d 1057, 1060 (9th Cir. 2011). Even assuming that Petitioner
can raise a colorable argument that his original habeas petition was timely,
Petitioner’s Rule 60(b) motion does not attack "some defect in the integrity of the
federal habeas proceedings." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see
also United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (per curiam)
(extending Gonzalez’ holding on petitions brought under 28 U.S.C. § 2254 to those
brought under 28 U.S.C. § 2255). The district court denied Petitioner’s § 2255
petition as untimely and, in the alternative, on the merits, so any error concerning
timeliness was harmless.
Petitioner also seeks leave to amend his habeas petition. But a Rule 60(b)
motion that "seeks to add a new ground for relief" and "attacks the federal court’s
previous resolution of a claim on the merits" is precisely the sort of disguised
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second or successive habeas petition barred by § 2255(h). Gonzalez, 545 U.S. at
532; Buenrostro, 638 F.3d at 722.
Finally, Petitioner has not sought authorization to file a second or successive
petition under § 2255(h), and nothing in his motion suggests that newly discovered
evidence or a new rule of constitutional law would allow us to grant it. The district
court therefore lacked jurisdiction to entertain Petitioner’s disguised second or
successive habeas petition. Washington, 653 F.3d at 1065. Accordingly, the
remaining issues certified for appeal were not properly before the district court.
We vacate the district court’s order denying Petitioner’s Rule 60(b) motion and
remand with instructions to dismiss for lack of jurisdiction. See Burton, 549 U.S.
at 157 (directing the district court to dismiss for lack of jurisdiction a second or
successive habeas petition).
VACATED and REMANDED with instructions to DISMISS. Costs on
appeal are awarded to Appellee.
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