Karon Bowser v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARON DOMINIQUE BOWSER, No. 17-56504
Petitioner-Appellant, D.C. No. 8:14-cv-00714-DOC
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Karon Dominique Bowser appeals from the district court’s order denying his
motion for reconsideration of its order denying his Federal Rule of Civil Procedure
60(b) (“Rule 60(b)”) motion. We have jurisdiction under 28 U.S.C. § 2253.
Reviewing de novo, see Brown v. Muniz, 889 F.3d 661, 666 (9th Cir. 2018), cert.
*
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).
denied sub nom., Brown v. Hatton, 139 S. Ct. 841 (2019), we affirm.
The district court denied reconsideration of its denial of Bowser’s Rule 60(b)
motion, concluding that the Rule 60(b) motion was subject to 28 U.S.C.
§ 2255(h)’s restrictions on second or successive § 2255 motions because the
evidence supporting the alleged violation under Brady v. Maryland, 373 U.S. 83
(1963), was not material. This court subsequently held that Brady claims, even
those that present material evidence, are subject to § 2255(h)’s second or
successive gatekeeping requirement. See Brown, 889 F.3d at 668. In light of
Brown, Bowser’s Brady challenge, raised in his disguised second or successive
§ 2255 motion, is subject to § 2255(h), and the district court properly denied
reconsideration.
In lieu of an opening brief, Bowser filed an original Rule 60(b) motion with
this court asserting a new Brady challenge. We decline to consider Bowser’s Rule
60(b) motion. This decision is without prejudice to Bowser seeking Rule 60(b)
relief in the district court. We express no opinion as to the merits of any such
motion, or as to whether such a motion would be subject to § 2255(h) or would
instead qualify as a “true” Rule 60(b) motion under Gonzalez v. Crosby, 545 U.S.
524, 531-36 (2005).
To the extent Bowser seeks to expand the certificate of appealability, that
motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-
2 17-56504
05 (9th Cir. 1999).
AFFIRMED.
3 17-56504