Joseph Wood, III v. Charles Ryan , 759 F.3d 1117 ( 2014 )

FILED
FOR PUBLICATION JUL 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH RUDOLPH WOOD, III, No. 14-16380
Petitioner - Appellant, D.C. No. 4:98-cv-00053-JGZ
v.
OPINION
CHARLES L. RYAN; TERRY L.
STEWART, Director; GEORGE
HERMAN, Warden, Arizona State Prison -
Eyman Complex,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted July 21, 2014*
San Francisco, California
Before: THOMAS, GOULD, and BYBEE, Circuit Judges.
PER CURIAM:
Joseph Wood, an Arizona state prisoner whose execution is set for July 23,
2014, appeals the district court’s denial of his motion for relief from judgment
*
The panel unanimously concludes this case is suitable for decision
without oral argument.
pursuant to Federal Rule of Civil Procedure 60(b), his motion for a stay of
execution, and his motion to amend or alter judgment pursuant to Federal Rule of
Civil Procedure 59(e). We affirm.1
I
Wood shot and killed his estranged girlfriend, Debra Dietz, and her father,
Eugene Dietz, in 1989.2 Following a jury trial, Wood was convicted of two counts
of first degree murder and two counts of aggravated assault. He was sentenced to
death for each murder. The Arizona Supreme Court affirmed the convictions and
sentences in 1994. State v. Wood, 881 P.2d 1158 (Ariz. 1994). The United States
Supreme Court denied certiorari in 1995. Wood v. Arizona, 515 U.S. 1147 (1995).
Wood filed his first state petition for post-conviction relief under Rule 32 of
the Arizona Rules of Criminal Procedure (“PCR”) in 1992. The trial court stayed
the petition pending the outcome of the direct appeal to the Arizona Supreme
Court. He filed a new PCR petition in 1996. The trial court denied the petition on
June 6, 1997. The Arizona Supreme Court denied a petition for review on
November 14, 1997.
1
The background is taken substantially from the district court order denying
Wood’s Rule 60(b) motion.
2
The factual details are described in the Arizona Supreme Court’s opinion
on direct appeal. State v. Wood, 881 P.2d 1158, 1165–66 (Ariz. 1994).
-2-
Wood filed a petition for writ of habeas corpus on February 3, 1998, and an
amended petition on November 30, 1998. On March 22, 2006, the district court
issued an order addressing the procedural status of Wood’s claims. The court
addressed the remaining claims on the merits and denied habeas relief in an order
and judgment dated October 25, 2007. Wood appealed to this Court. In August
2012, Wood moved to remand the case to the district court, arguing pursuant to
Martinez v. Ryan, 132 S. Ct. 1309 (2012), that his post-conviction counsel’s
ineffective performance constituted cause for the default of his ineffective
assistance of counsel claims. We denied the motion. On September 10, 2012, we
affirmed the district court’s denial of habeas relief. Wood v. Ryan, 693 F.3d 1104
(9th Cir. 2012). The United States Supreme Court denied certiorari on October 7,
2013. Wood v. Ryan, 134 S. Ct. 239 (2013).
The State filed a motion for a warrant of execution on April 22, 2014. The
warrant was granted on May 28, and execution was set for July 23, 2014.
On July 17, 2014, Wood filed in district court a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b) and a motion for a stay
of execution. The district court denied the motions on July 20, 2014. Wood then
filed a motion to amend or alter a judgment pursuant to Federal Rule of Civil
Procedure 59(e) on July 21, 2014, and requested a Certificate of Appealability as to
-3-
the prior denial of the Rule 60(b) motion. The district court denied the Rule 59(e)
motion on July 21, 2014, but granted a Certificate of Appealability as to both
orders.
We review the district court’s denial of Rule 60(b) and 59(e) motions under
the deferential abuse of discretion standard. Phelps v. Alameida, 569 F.3d 1120,
1131 (9th Cir. 2009) (Rule 60(b)); Zimmerman v. City of Oakland, 255 F.3d 734,
737 (9th Cir. 2001) (Rule 59(e)).
II
The district court did not abuse its discretion in denying the Rule 60(b)
motion. Rule 60(b) “allows a party to seek relief from a final judgment, and
request reopening of his case, under a limited set of circumstances.” Gonzalez v.
Crosby, 545 U.S. 524, 528 (2005). Rule 60(b)(6) permits reopening for “any . . .
reason that justifies relief” other than the more specific reasons set out in Rule
60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6). The party seeking relief under Rule
60(b)(6) must show “‘extraordinary circumstances’ justifying the reopening of a
final judgment.” Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States,
340 U.S. 193, 199 (1950)). Such circumstances “rarely occur in the habeas
context.” Id.
-4-
Citing Martinez, Wood asserts he is entitled to relief from judgment based
on the ineffective assistance of his post-conviction counsel, which prevented the
district court from reaching the merits of three of his claims. Wood contends that
the Martinez decision is an extraordinary circumstance justifying relief as to his
three procedurally defaulted claims. To prevail, Wood must show not only that the
Martinez decision is an extraordinary circumstance justifying relief, but also that
he can succeed under Martinez. Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir.
2012).
We have carefully reviewed the district court opinion. Under our deferential
standard of review, we cannot say that the district court abused its discretion in
denying the Rule 60(b) motion substantially for the reasons stated in the district
court opinion.
We also see no abuse of discretion in the district court’s denial of Wood’s
claim regarding the denial of his motion for evidentiary development. Wood
raised sentencing counsel’s ineffectiveness in Claim X.C.3 of his habeas petition.
The district court denied the ineffectiveness claim on the merits and also denied
Wood’s request for evidentiary development as to that claim. We affirmed the
district court’s merits decision and denial of evidentiary development. Wood, 693
F.3d at 1122. Wood now argues that the denial of evidentiary development is an
-5-
extraordinary circumstance justifying relief from judgment. The district court
denied the Rule 60(b) motion as to this claim because it is in substance an
unauthorized second or successive habeas petition, and we agree.
A Rule 60(b) motion is proper when it “attacks, not the substance of the
federal court’s resolution of a claim on the merits, but some defect in the integrity
of the federal habeas proceedings.” Gonzalez, 545 U.S. at 532. Wood argues that
he is not challenging the substance of the district court’s prior ineffectiveness
ruling, but instead that he is challenging the denial of evidentiary development
designed to substantiate that claim. However, a Rule 60(b) motion constitutes a
second or successive petition if it “seek[s] leave to present ‘newly discovered
evidence’ in support of a claim previously denied.” Gonzalez, 545 U.S. at 531
(internal citation omitted); see also Post v. Bradshaw, 422 F.3d 419, 424–25 (6th
Cir. 2005) (“all that matters is [whether petitioner] is seeking vindication of or
advancing a claim by taking steps that lead inexorably to a merits-based attack on
the prior dismissal of his habeas petition.” (internal alterations and quotation marks
omitted)). The substance of the claim Wood asserts was previously decided on the
merits, and a Rule 60(b) motion that seeks leave to develop new evidence as to the
claim must be denied as an unauthorized second or successive petition. Gonzalez,
545 U.S. at 531. Therefore, the district court was without jurisdiction to consider
-6-
it. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the
AEDPA is in play, the district court may not, in the absence of proper authorization
from the court of appeals, consider a second or successive habeas application.”
(internal quotation marks omitted)); see also Burton v. Stewart, 549 U.S. 147,
152–53 (2007) (determining that district court lacked jurisdiction to consider
second or successive habeas application).
III
The district court did not abuse its discretion in denying Wood’s Rule 59(e)
motion to alter or amend its judgment denying Rule 60(b) relief. In his motion,
Wood reargued that the ineffectiveness of sentencing counsel issue was not an
unauthorized second or successive petition. As the district court correctly
observed, a Rule 59(e) motion is an “extraordinary remedy, to be used sparingly in
the interests of finality and conservation of judicial resources.” Kona Enters., Inc.
v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A district court may grant a
Rule 59(e) motion if it “‘is presented with newly discovered evidence, committed
clear error, or if there is an intervening change in the controlling law.’” McDowell
v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange
St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Wood’s Rule 59(e)
-7-
motion merely asked the district court to reconsider the judgment it entered the
previous day. The district court did not abuse its discretion in denying the motion.
IV
Wood also seeks a stay of his execution from this court. “[A] stay of
execution is an equitable remedy. It is not available as a matter of right, and equity
must be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts. Thus, like other stay
applicants, inmates seeking time to challenge the manner in which the State plans
to execute them must satisfy all of the requirements for a stay, including a showing
of a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S.
573, 584 (2006) (internal citations omitted). Wood has failed to show “a
significant possibility of success on the merits.” Additionally, the public interest in
the enforcement of the judgment and the filing of the Rule 60(b) motion on the eve
of the execution both weigh against issuing a stay. See Cook v. Ryan, 688 F.3d
598, 612–13 (9th Cir. 2012). We must therefore deny Wood’s request for a stay.
V
The district court did not abuse its discretion in denying the Rule 60(b)
motion, the Rule 59(e) motion, or the motion for a stay of execution. Wood also
-8-
fails to meet the requirements for a stay of execution. The district court’s
judgment is affirmed. Wood’s motion for a stay of execution is denied.
AFFIRMED.
-9-
Counsel
Jon M. Sands, Federal Public Defender, Dale A. Baich & Robin C. Conrad,
Assistant Federal Public Defenders, District of Arizona, Phoenix Arizona, on
behalf of Plaintiff-Appellant.
Thomas C. Horne, Attorney General, Jeffrey A. Zick, Chief Counsel, John Pressley
Todd, Special Assistant Attorney General, Jeffrey L. Sparks & Matthew Binford,
Assistant Attorneys General, State of Arizona, Phoenix, Arizona, for Defendants-
Appellees.
-10-