United States v. John Lynch , 634 F. App'x 611 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 05 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-35836
Plaintiff - Appellee, D.C. Nos. 9:07-cv-00118-DWM
9:99-cr-00018-DWM-1
v.
JOHN LANNY LYNCH, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Submitted February 2, 2016**
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
We dismiss Lynch’s appeal for lack of jurisdiction.
The district court held that Lynch’s purported Rule 60(b) motion is actually
an unauthorized, second or successive habeas petition under 28 U.S.C. § 2255. For
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
us to entertain his appeal, Lynch needs a Certificate of Appealability (COA), see
Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 2013), and the district court refused
to grant him one. Because the district court’s disposition of his motion counts as a
dismissal on procedural grounds, id., Lynch can obtain a COA now only if he
shows (among other things) “that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling,” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
We deny Lynch a COA because the district court was indisputably correct
that his Rule 60(b) motion is an unauthorized, second or successive § 2255
petition.
First, the vast bulk of Lynch’s self-styled Rule 60(b) motion aims to
discredit our decision, on his direct appeal, that the prosecution put forth sufficient
evidence to convict him of violating the Hobbs Act, 18 U.S.C. § 1951. See United
States v. Lynch, 437 F.3d 902, 911 (9th Cir. 2006) (en banc) (per curiam). Such
allegations cannot form part of a legitimate Rule 60(b) motion because they have
nothing to do with the integrity of Lynch’s § 2255 proceeding. “Because the
gravamen of [Lynch’s] assertions go to the merits of his conviction, his Rule 60(b)
motion is, in fact, a § 2255 motion in disguise.” United States v. Washington, 653
F.3d 1057, 1065 (9th Cir. 2011).
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Second, insofar as Lynch would have us believe that his original § 2255
petition stated a claim of ineffective assistance of appellate counsel that the district
court overlooked, we reject his premise. So-called “claim #2” in Lynch’s petition
does not, by any stretch, allege ineffective assistance of appellate counsel. Lynch
is simply attempting to raise “a new claim for relief, wholly independent of the
claims adjudicated in his first § 2255 proceeding.” United States v. Buenrostro,
638 F.3d 720, 723 (9th Cir. 2011). A novel claim like that may not proceed under
Rule 60(b); instead, it “must be treated as a § 2255 motion” subject to the
limitations on second or successive petitions set forth in § 2255(h). Id.
Because jurists of reason would not debate the district court’s ruling that
Lynch’s Rule 60(b) motion constitutes an unauthorized, second or successive
petition for habeas corpus under § 2255, we deny Lynch a COA, and we dismiss
his appeal for lack of jurisdiction.
DISMISSED.
3