UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-21048
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZACHARY MALVEAUX,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-2519)
_________________________________________________________________
June 15, 2000
Before JONES, and BENAVIDES, Circuit Judges and COBB*, District
Judge.
PER CURIAM:**
Petitioner Malveaux appeals the magistrate judge’s denial
of a Rule 60(b) motion he filed nine months after his § 2255
petition was denied. This court has held that Rule 60(b) motions
in federal habeas cases may be treated as successive habeas
*
District Judge of the Eastern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
petitions. United States v. Rich, 141 F.3d 550 (5th Cir. 1998).
Because of the unique circumstances surrounding this case, we
believe it is appropriate to treat Malveaux’s motion as if it were
a successive habeas petition. As such, the magistrate judge should
have dismissed the motion because Malveaux failed to secure leave
of this court to file a successive § 2255 motion, as required by
statute. See United States v. Rich, 141 F.3d at 553.
Nevertheless, if we treat Malveaux’s motion as an
application to this court for certification of a successive
petition, § 2255 severely limits such certification to motions
involving:
(1) Newly discovered evidence that, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that no
reasonable fact finder would have found the
movant guilty of the offense; or (2) a new
rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court, that was previously unavailable.
28 U.S.C. § 2255. Malveaux’s motion is not based on either of
these grounds, but merely re-argues the issues he raised in his
§ 2255 motion and asserts conclusionally that he was prejudiced
because he did not receive a copy of the government’s motion for
summary judgment and was accordingly denied an opportunity to
respond. The magistrate judge’s opinion thoroughly reviewed each
of Malveaux’s claims and found them meritless in a ten-page
memorandum opinion. Moreover, Malveaux’s brief does not explain
how he was prejudiced by his failure to respond and it identifies
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no arguments he would have raised in opposition to the summary
judgment motion. Not only does Malveaux’s argument fail to satisfy
the standards for Rule 60(b) relief if that provision were
available, but the criteria for Malveaux’s proceeding with this
motion when treated as a successive habeas petition are simply
unfulfilled.
Motion for successive habeas relief DENIED.
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