FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-56569
Plaintiff-Appellee,
D.C. Nos.
v.
FULTON LEROY WASHINGTON, AKA
2:01-cv-08491-DDP
2:96-cr-00557-
Larry W. Scott, DDP-4
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
June 6, 2011—Pasadena, California
Filed August 8, 2011
Before: Diarmuid F. O’Scannlain and Sandra S. Ikuta,
Circuit Judges, and Lawrence L. Piersol,
Senior District Judge.*
Opinion by Judge Ikuta
*The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
10357
10360 UNITED STATES v. WASHINGTON
COUNSEL
Michael J. Treman, Santa Barbara, California, for appellant
Fulton Leroy Washington.
Patrick R. Fitzgerald, Assistant United States Attorney, Los
Angeles, California, for appellee United States of America.
OPINION
IKUTA, Circuit Judge:
Fulton Leroy Washington has challenged (or attempted to
challenge) his conviction four times: on direct appeal, in his
first motion under 28 U.S.C. § 2255, in a second § 2255
motion, and now in a motion purportedly under Rule 60(b)(4)
of the Federal Rules of Civil Procedure. This appeal requires
us to determine whether the district court had jurisdiction to
hear Washington’s self-styled Rule 60(b) motion, or whether
the court should have dismissed it for lack of jurisdiction
because it was actually a disguised third request for relief
under § 2255 that did not meet the standard in § 2255(h) for
second or successive motions brought under that section.
I
In November 1996, following a jury trial, Washington was
convicted of conspiring to manufacture one kilogram or more
UNITED STATES v. WASHINGTON 10361
of a substance containing phencyclidine (PCP) in violation of
21 U.S.C. §§ 841(a)(1) and 846; possession of approximately
eleven kilograms of piperidinocyclohexanecarbonitrile (PCC)
with intent to manufacture PCP, in violation of § 841(a)(1);
and attempted manufacture of more than one kilogram of a
substance containing PCP in violation of §§ 841(a)(1) and
846. The jury did not make any finding as to the quantity of
drugs attributable to Washington. At sentencing, the district
court found by a preponderance of the evidence that Washing-
ton had possessed 108.86 grams of PCP, a finding that, in
concert with Washington’s prior convictions, triggered a man-
datory term of life imprisonment under § 841(b)(1). We
affirmed his conviction in an unpublished disposition. See
United States v. O’Neal, 213 F.3d 644 (9th Cir. 2000) (unpub-
lished).
Washington then commenced a series of collateral chal-
lenges to his conviction. Because a clear understanding of the
nature of these challenges is necessary to resolve Washing-
ton’s appeal, we first briefly explain the procedural frame-
work for such challenges, and then explain the history of
Washington’s collateral challenges to his conviction in some
detail.
A
A federal prisoner who is “claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States,” 28 U.S.C.
§ 2255(a), may file a § 2255 motion with the district court
that imposed the sentence. “As a general rule, § 2255 provides
the exclusive procedural mechanism by which a federal pris-
oner may test the legality of detention.” Harrison v. Ollison,
519 F.3d 952, 955 (9th Cir. 2008) (quoting Lorentsen v.
Hood, 223 F.3d 950, 953 (9th Cir. 2000)) (internal quotation
marks omitted). If the district court denies relief, the peti-
tioner may not appeal that denial without first obtaining a cer-
tificate of appealability pursuant to 28 U.S.C.
10362 UNITED STATES v. WASHINGTON
§ 2253(c)(1)(B). In order to obtain such a certificate, the peti-
tioner must make “a substantial showing of the denial of a
constitutional right” as to each issue the prisoner seeks to
appeal. 28 U.S.C. § 2253(c)(2), (3).
A petitioner is generally limited to one motion under
§ 2255, and may not bring a “second or successive motion”
unless it meets the exacting standards of 28 U.S.C. § 2255(h).
This section provides that such a motion cannot be considered
unless it has first been certified by the court of appeals to con-
tain either “(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be suffi-
cient to establish by clear and convincing evidence that no
reasonable factfinder 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.” Id. § 2255(h).
Because of the difficulty of meeting this standard, petition-
ers often attempt to characterize their motions in a way that
will avoid the strictures of § 2255(h)—for example, by char-
acterizing their motions as habeas petitions under 28 U.S.C.
§ 2241, which a petitioner may file without obtaining authori-
zation from the court of appeals. A petitioner may file pursu-
ant to § 2241 “if the remedy provided by § 2255 is
‘inadequate or ineffective to test the legality of his deten-
tion.’ ” Alaimalo v. United States, ___ F.3d ___, 2011 WL
2463509, at *3 (9th Cir. 2011) (quoting 28 U.S.C. § 2255(e));
see also Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.
2006) (explaining that a § 2241 petition may be filed “when
a petitioner (1) makes a claim of actual innocence, and (2) has
not had an unobstructed procedural shot at presenting that
claim” (citation and internal quotation marks omitted)).
In addition, petitioners may also characterize their pleading
as being a motion under Rule 60(b) of the Federal Rules of
Civil Procedure, which “allows a party to seek relief from a
final judgment, and request reopening of his case, under a
UNITED STATES v. WASHINGTON 10363
limited set of circumstances,” Gonzalez v. Crosby, 545 U.S.
524, 528 (2005), including, as relevant here, that the initial
judgment was “void,” Fed. R. Civ. P. 60(b)(4).1 When a Rule
60(b) motion is actually a disguised second or successive
§ 2255 motion, it must meet the criteria set forth in § 2255(h).
Gonzalez, 545 U.S. at 528. But the Supreme Court has not
adopted a bright-line rule for distinguishing between a bona
fide Rule 60(b) motion and a disguised second or successive
§ 2255 motion, instead holding that a Rule 60(b) motion that
attacks “some defect in the integrity of the federal habeas pro-
ceedings” is not a disguised § 2255 motion but rather “has an
unquestionably valid role to play in habeas cases.” Id. at 532,
534; see also United States v. Buenrostro, 638 F.3d 720,
722-23 (9th Cir. 2011) (per curiam). Washington attempted to
bring his challenge under the auspices of Rule 60(b), as dis-
cussed in more detail below.
1
Rule 60(b) of the Federal Rules of Civil Procedure provides:
(b) Grounds for Relief from a Final Judgment, Order, or Pro-
ceeding. On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or pro-
ceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable dili-
gence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or
(6) any other reason that justifies relief.
10364 UNITED STATES v. WASHINGTON
B
On October 1, 2001, Washington filed his first motion
under 28 U.S.C. § 2255, which was assigned to Judge Byrne,
the district judge who had presided over the trial and sentenc-
ing. During the pendency of the motion, Judge Byrne passed
away, and the matter was reassigned to Judge Tevrizian. In
that motion, Washington raised sixteen issues, only two of
which are relevant here. First, he argued that he was actually
innocent of the crimes for which he was convicted because he
did not match the police description of the suspect. Specifi-
cally, Washington alleged that he was approximately 6 inches
taller than the suspect, that there were crucial gaps in the gov-
ernment’s surveillance that prevented the government from
being able to link Washington to the crime, and that Washing-
ton’s co-defendants had attested to his innocence. Second,
Washington argued that his rights under the Confrontation
Clause had been violated when the court allowed the govern-
ment to introduce wiretaps of conversations by his co-
conspirators, during which they referred to “Wash,” a nick-
name ultimately connected to Washington and used to tie him
to the crimes.
Judge Tevrizian denied Washington’s § 2255 motion on
February 2, 2006, in a thorough and lengthy order which con-
sidered some of Washington’s many claims in detail, while
disposing of others, such as his actual innocence and Confron-
tation Clause claims, with the statement, “[a]ny argument that
Washington raised in his petition, but is not specifically dis-
cussed herein, is deemed meritless.” Washington filed a
notice of appeal, but both the district court and this court
declined to grant him a certificate of appealability pursuant to
28 U.S.C. § 2253(c)(1)(B). Unable to appeal the district
court’s denial of the first § 2255 motion, Washington filed a
second § 2255 motion in the district court on June 22, 2006.
The district court denied it on the ground that it was an unau-
thorized second or successive motion. See 28 U.S.C.
§ 2255(h). We declined to issue a certificate of appealability.
UNITED STATES v. WASHINGTON 10365
Having failed to obtain authorization to appeal the denial of
his first § 2255 motion, and unable to avoid the barriers to
judicial review of his second § 2255 motion, Washington took
a new approach. On July 9, 2007, he filed a “Motion Pursuant
to Federal Rules of Civil Procedure 63, 60(b)(6), and
60(b)(4),” which did not challenge his conviction or sentence,
but rather sought to vacate Judge Tevrizian’s February 2,
2006 order denying his initial § 2255 petition. In his motion,
Washington (proceeding pro se) raised numerous claims,
including the arguments that Judge Tevrizian adjudicated the
§ 2255 motion without being familiar with the record, that
Washington was innocent, that Judge Tevrizian should have
held an evidentiary hearing on Washington’s actual innocence
claim, and that Judge Tevrizian had failed to consider and rule
on Washington’s Confrontation Clause and innocence claims.
This new motion was assigned to Judge Dean Pregerson,
who construed it as a motion under Rule 60(b)(4) of the Fed-
eral Rules of Civil Procedure seeking relief from Judge
Tevrizian’s February 2, 2006 order denying Washington’s ini-
tial § 2255 motion.2 Although Washington’s motion also
invoked Rule 63 of the Federal Rules of Civil Procedure,3
Judge Pregerson read the motion as claiming that Judge
Tevrizian’s order was void because the judge had not properly
followed the procedure in Rule 63; Judge Pregerson therefore
treated Washington’s conflation of Rule 63 and Rule 60(b) as
2
Rule 60(b)(4) states: “On motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order, or proceed-
ing [if] . . . the judgment is void.”
3
Rule 63 of the Federal Rules of Civil Procedure provides:
If a judge conducting a hearing or trial is unable to proceed, any
other judge may proceed upon certifying familiarity with the
record and determining that the case may be completed without
prejudice to the parties. In a hearing or a nonjury trial, the succes-
sor judge must, at a party’s request, recall any witness whose tes-
timony is material and disputed and who is available to testify
again without undue burden. The successor judge may also recall
any other witness.
10366 UNITED STATES v. WASHINGTON
a single Rule 60(b)(4) motion.4 Because Washington claimed
the order was void, and did not challenge the underlying
validity of the sentence, Judge Pregerson rejected the govern-
ment’s argument that the motion was a disguised second or
successive § 2255 motion.
Judge Pregerson denied Washington’s motion on the mer-
its. Noting that a judgment is void if “the parties or the court
acted in a manner inconsistent with due process of law,”
Judge Pregerson ruled that the facts did not support Washing-
ton’s claim that Judge Tevrizian’s alleged unfamiliarity with
the record deprived Washington of due process. Rather, Judge
Pregerson concluded that Judge Tevrizian’s understanding of
the record was evident: the order disposing of the § 2255 peti-
tion was long and detailed, and it provided both the relevant
background and a cogent legal analysis. Judge Pregerson fur-
ther noted that Washington had failed to support his allegation
with any evidence, merely making conclusory statements
regarding Judge Tevrizian’s knowledge of the case.
On August 15, 2008, Washington filed a notice of appeal
from Judge Pregerson’s denial of his Rule 60(b)(4) motion. A
motions panel of this court remanded the case for the limited
purpose of having the district court consider whether to issue
a certificate of appealability. On remand, Judge Pregerson
declined to grant a certificate of appealability on Washing-
ton’s claim that Judge Tevrizian’s disposition of the original
§ 2255 motion was void. According to Judge Pregerson, the
denial of this claim was not one which reasonable jurists
would debate. Judge Pregerson then proceeded to grant a cer-
tificate of appealability on three issues that he had not
4
Washington also invoked Rule 60(b)(6), which provides that “the court
may relieve a party or its legal representative from a final judgment, order,
or proceeding for the following reasons: . . . (6) any other reason that justi-
fies relief.” Because Washington failed to allege an independent basis for
relief under this provision, Judge Pregerson construed this claim as also
being part of Washington’s single Rule 60(b)(4) motion. Washington does
not challenge Judge Pregerson’s reclassification of his motion.
UNITED STATES v. WASHINGTON 10367
expressly addressed in his order denying the Rule 60(b)(4)
motion, namely, Washington’s claim of actual innocence
based on the 6-inch height difference between himself and the
suspect; his claim that his Confrontation Clause rights were
violated; and his demand for an evidentiary hearing on the
question whether his appellate counsel was ineffective in fail-
ing to raise an Apprendi error on direct appeal.5 This appeal
followed.
II
[1] The government argues that Judge Tevrizian’s Febru-
ary 2, 2006 order denying Washington’s original § 2255
motion is not void. The government therefore urges us to
affirm Judge Pregerson’s order denying Washington’s Rule
60(b)(4) motion. Before we can decide whether Judge Preger-
son properly denied Washington’s Rule 60(b)(4) motion, we
must first decide whether that motion was actually a disguised
§ 2255 motion. If it was such a motion, then the district court
lacked jurisdiction to entertain it due to Washington’s failure
to comply with the requirements of § 2255(h).
A
Our analysis of the question whether Washington’s motion
is a disguised § 2255 motion is governed by the Supreme
Court’s decision in Gonzalez v. Crosby.6 In Gonzalez, the
Supreme Court considered a state prisoner’s motion under
Rule 60(b)(6) (the catch-all provision) to reopen a federal dis-
trict court’s dismissal of the habeas petition he had filed under
5
Washington also raises this ineffective assistance of counsel claim on
appeal. Because he did not raise this issue in his Rule 60(b)(4) motion, it
was not properly before the district court and therefore is not a matter on
which an appeal can be taken. Therefore, we dismiss this portion of Wash-
ington’s appeal.
6
Although Gonzalez was limited to § 2254 cases, 545 U.S. at 529 n.3,
we have held that its analysis is equally applicable to § 2255 cases. Buen-
rostro, 638 F.3d at 722.
10368 UNITED STATES v. WASHINGTON
28 U.S.C. § 2254. See 545 U.S. at 527-29. The district court
had dismissed the habeas petition as time-barred, based on its
interpretation of the applicable tolling provisions. Id. at 527.
The Supreme Court subsequently decided Artuz v. Bennett,
531 U.S. 4 (2000), which adopted a different interpretation of
the applicable tolling provisions, under which Gonzalez’s
habeas petition would have been timely. Gonzalez, 545 U.S.
at 527 (citing Artuz, 531 U.S. at 8-9). Gonzalez then filed a
Rule 60(b)(6) motion asking the district court to reopen his
case and reconsider the petition’s timeliness in light of Artuz.
Id. The district court denied the motion, and Gonzalez
appealed. Id. The Eleventh Circuit, sitting en banc, held that
the “petitioner’s motion—indeed, any postjudgment motion
under Rule 60(b) save one alleging fraud on the court under
Rule 60(b)(3)—was in substance a second or successive
habeas corpus petition.” Id. at 528. Because it determined that
“[a] state prisoner may not file such a petition without precer-
tification by the court of appeals that the petition meets cer-
tain stringent criteria,” and because Gonzalez’s petition did
not meet such criteria, the Eleventh Circuit affirmed the dis-
trict court’s denial of Gonzalez’s Rule 60(b) motion. Id.
[2] The Supreme Court disagreed with the Eleventh Cir-
cuit’s per se rule. Instead, it directed courts to focus on the
substance of each motion. See id. at 530-33. If the alleged
Rule 60(b) motion asserts some “defect in the integrity of the
federal habeas proceedings,” it is a legitimate Rule 60(b)
motion. Id. at 530, 532 & n.5. One example of such a defect,
according to the Court, is the contention that a habeas pro-
ceeding was flawed due to the existence of a “[f]raud on the
federal habeas court,” such as occurred in Rodriguez v. Mitch-
ell, 252 F.3d 191 (2d Cir. 2001). Gonzalez, 545 U.S. at 532
n.5. In Rodriguez, the Second Circuit determined that a peti-
tioner presented a bona fide Rule 60(b)(3) motion when he
alleged that a witness had fraudulently claimed that his busy
law practice precluded his testifying at the petitioner’s habeas
hearing. Rodriguez, 252 F.3d at 197, 199. Another example of
a legitimate Rule 60(b) motion is one contending that a dis-
UNITED STATES v. WASHINGTON 10369
trict court erred in making a procedural ruling, such as on
“failure to exhaust, procedural default, or statute-of-
limitations bar,” that actually “precluded a merits determina-
tion.” Gonzalez, 545 U.S. at 532 n.4.
[3] On the other hand, if the motion presents a “claim,”
i.e., “an asserted federal basis for relief from a . . . judgment
of conviction,” then it is, in substance, a new request for relief
on the merits and should be treated as a disguised § 2255
motion. Id. at 530. The Court gave a number of examples of
such “claims,” including: a motion asserting “that owing to
‘excusable neglect,’ the movant’s habeas petition had omitted
a claim of constitutional error,” id. at 530-31 (citation omit-
ted) (quoting Fed. R. Civ. P. 60(b)(1)); a motion to present
“newly discovered evidence” in support of a claim previously
denied, id. at 531 (citation omitted) (quoting Fed. R. Civ. P.
60(b)(2)); a contention “that a subsequent change in substan-
tive law is a ‘reason justifying relief’ from the previous denial
of a claim,” id. (quoting Fed. R. Civ. P. 60(b)(6)); a motion
“that seeks to add a new ground for relief,” id. at 532; a
motion that “attacks the federal court’s previous resolution of
a claim on the merits,” id. (emphasis omitted); a motion that
otherwise challenges the federal court’s “determination that
there exist or do not exist grounds entitling a petitioner to
habeas corpus relief,” id. at 532 n.4; and finally, “an attack
based on the movant’s own conduct, or his habeas counsel’s
omissions,” id. at 532 n.5. According to the Court, if a plead-
ing labeled a Rule 60(b) motion includes such claims, it “is
in substance a successive habeas petition and should be
treated accordingly.” Id. at 531. Said otherwise, a motion that
does not challenge “the integrity of the proceedings, but in
effect asks for a second chance to have the merits determined
favorably,” is raising a “claim” that takes it outside the pur-
view of Rule 60(b). Id. at 532 n.5; accord Buenrostro, 638
F.3d at 722-23 (holding that a Rule 60(b)(6) motion asserting
ineffective assistance of counsel in the movant’s original
criminal trial asserted a “claim” within the meaning of Gonza-
lez and therefore was in essence a disguised § 2255 motion).
10370 UNITED STATES v. WASHINGTON
B
In light of these principles, we must determine whether
Washington’s motion raises “claims” and thus should be con-
sidered a disguised second or successive § 2255 motion that
we must dismiss for lack of jurisdiction, or whether it instead
alleges a “defect in the integrity of the federal habeas pro-
ceedings,” and thus constitutes a legitimate Rule 60(b)
motion. In conducting this analysis, we consider separately
each of the contentions that are on appeal, see United States
v. Allen, 157 F.3d 661, 663-64 (9th Cir. 1998), specifically,
Washington’s assertions that Judge Tevrizian’s order is void,
that Washington is actually innocent, and that his Confronta-
tion Clause rights were violated.
[4] We begin by considering Washington’s contention that
Judge Tevrizian’s order is void because the judge failed to
comply with Rule 63. Washington raises two main bases for
this argument. First, he states that Judge Tevrizian failed to
comply with Rule 63’s requirement to certify familiarity with
the record. Second, he argues that Judge Tevrizian erred in his
handling of the § 2255 motion by (among other things) failing
to develop the record, failing to rule on all of Washington’s
claims, failing to conduct evidentiary hearings, and making
other errors in his resolution of the case.7 Neither of these
claims amounts to an allegation of a “defect in the integrity
of the federal habeas proceeding[ ],” Gonzalez, 545 U.S. at
532, that could constitute a legitimate Rule 60(b) motion.
Although allegations that a judge was biased, had a conflict
of interest, or otherwise engaged in behavior that gave rise to
an appearance of impropriety may be a basis for claiming a
7
Specifically, Washington alleges that Judge Tevrizian did not “con-
sider post-trial decisions” made by Judge Byrne before the latter’s death;
did not allow supplemental briefing and evidentiary hearings on various
factual questions (including Washington’s innocence); and addressed in
his opinion only the issues on which relief could be denied while dispos-
ing of all meritorious issues without discussion.
UNITED STATES v. WASHINGTON 10371
defect in the integrity of the proceedings for Rule 60(b) pur-
poses, see generally Caperton v. A.T. Massey Coal Co., 129
S. Ct. 2252 (2009), none of Washington’s claims rise to that
level. First, a failure to discharge the ministerial certification
requirement set forth in Rule 63, even if it occurred in this
case, does not cast doubt on the proceeding’s integrity. Simi-
larly, Washington’s argument that Judge Tevrizian mishan-
dled the § 2255 motion because he failed to develop the
record sufficiently, lacked familiarity with the facts of the
case, failed to make detailed rulings on each of Washington’s
claims, and declined to conduct an evidentiary hearing on
Washington’s actual innocence claim, does not constitute an
allegation of a defect in the integrity of the proceedings;
rather, such arguments are merely asking “for a second
chance to have the merits determined favorably,” Gonzalez,
545 U.S. at 532 n.5, and are precisely the sort of attack on
“the federal court’s previous resolution of a claim on the mer-
its,” id. at 532 (emphasis omitted), that Gonzalez character-
ized as a “claim” which is outside the scope of Rule 60(b).
Accordingly, we conclude that Washington’s attack on Judge
Tevrizian’s handling of his case is a disguised § 2255 motion.
[5] We next consider Washington’s arguments in his Rule
60(b)(4) motion that Judge Tevrizian violated due process by
failing to address his Confrontation Clause and actual inno-
cence claims in sufficient detail. As explained above, Judge
Tevrizian rejected these claims in a summary fashion as
“meritless.” Again, Washington’s contentions amount to
attacks on the “federal court’s previous resolution of a claim
on the merits,” id. at 532 (emphasis omitted), and challenge
the court’s “determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief,” id. at
532 n.4. Therefore, they also constitute “claims” that may be
raised only via a § 2255 motion.
[6] Washington’s argument that Judge Tevrizian erred by
failing to hold an evidentiary hearing on his actual innocence
contentions likewise presents a “claim,” as Washington
10372 UNITED STATES v. WASHINGTON
expressly seeks a fresh opportunity to air the arguments that
failed at his trial, asking the district court to make “credibility
determinations” of the various witnesses, his co-defendants,
his former counsel, and the government attorneys who prose-
cuted him. Because the gravamen of Washington’s assertions
go to the merits of his conviction, his Rule 60(b) motion is,
in fact, a § 2255 motion in disguise.
C
[7] Because we have determined that Washington’s pur-
ported Rule 60(b) motion is a disguised § 2255 motion, the
district court lacked jurisdiction to consider his claims unless
they met the stringent standard for presenting a second or suc-
cessive § 2255 motion. See 28 U.S.C. § 2255(h). Section
2255(h) provides that “[a] second or successive motion must
be certified as provided in section 2244 by a panel of the
appropriate court of appeals.” Section 2244(b)(3)(A), in turn,
provides that “[b]efore a second or successive application per-
mitted by this section is filed in the district court, the appli-
cant shall move in the appropriate court of appeals for an
order authorizing the district court to consider the applica-
tion.” Id. § 2244(b)(3)(A). Reading these statutes together, we
have held that “[a] second or successive § 2255 petition may
not be considered by the district court unless petitioner
obtains a certificate authorizing the district court to do so.”
Alaimalo, 2011 WL 2463509 at * 11 (citing 28 U.S.C.
§ 2255(h)). To date, Washington has not sought, and this
court has not issued, any such certificate authorizing Wash-
ington to file a successive § 2255 motion. Accordingly, the
district court was without jurisdiction to entertain Washing-
ton’s successive (albeit disguised) § 2255 motion.
[8] Although Washington failed to seek prior authorization
as required by § 2255(h), we nevertheless will construe Wash-
ington’s instant appeal as a motion for authorization to file a
successive § 2255 motion. We decline to certify the motion
pursuant to § 2255(h). Washington does not purport to rely on
UNITED STATES v. WASHINGTON 10373
“a new rule of constitutional law,” § 2255(h)(2), and his “mo-
tion” fails to identify “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 factfinder would have found [him] guilty
of the offense,” § 2255(h)(1). Indeed, Washington’s Confron-
tation Clause argument is not based on any evidence that is
“newly discovered,” as he knew of the audio tapes’ admission
at his original trial. Nor does Washington’s actual innocence
claim involve new evidence, as he was aware of the height
discrepancy at the time of his original trial, Baumann v.
United States, 692 F.2d 565, 579-80 (9th Cir. 1982), and,
under our precedent, his co-defendants’ recent desire to excul-
pate Washington does not qualify as “newly discovered” evi-
dence, United States v. Reyes-Alvarado, 963 F.2d 1184, 1188
(9th Cir. 1992). Because Washington was not authorized
under § 2255(h) to bring a second habeas motion, the district
court lacked jurisdiction to consider these claims, and we
must vacate its denial of his motion and remand with orders
that the case be dismissed.8
8
Because we dispose of Washington’s claims on this basis, we need not
reach the question, which is open in our circuit, whether a petitioner who
seeks to appeal a district court order denying his legitimate Rule 60(b)(4)
motion must seek and obtain a certificate of appealability pursuant to
§ 2253(c)(1). Cf. Reid v. Angelone, 369 F.3d 363, 370 (4th Cir. 2004) (cer-
tificate required to appeal Rule 60(b) motion denials); Gonzalez v. Sec’y
for Dep’t of Corrections, 366 F.3d 1253, 1266-67 (11th Cir. 2004) (en
banc) (same), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545
U.S. 524 (2005); Dunn v. Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir.
2002) (per curiam) (certificate not required when petitioner appeals the
denial of a genuine Rule 60(b) motion); Kellogg v. Strack, 269 F.3d 100,
103 (2d Cir. 2001) (per curiam) (certificate required to appeal Rule 60(b)
motion denials); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.
2000) (assuming, without analysis, that a certificate is required to appeal
Rule 60(b) motion denials); Morris v. Horn, 187 F.3d 333, 336 (3d Cir.
1999) (same).
10374 UNITED STATES v. WASHINGTON
III
Pursuant to the Supreme Court’s instructions in Gonzalez,
we have examined each of Washington’s claims in his pur-
ported Rule 60(b)(4) motion to determine whether they allege
some “defect in the integrity of the federal habeas proceed-
ings” or instead present “claims” constituting a new request
for relief on the merits. Gonzalez, 545 U.S. at 532. Because
all of the issues on appeal are of the merits variety, we vacate
the district court’s denial of Washington’s Rule 60(b)(4)
motion and remand with instructions to dismiss it as an unau-
thorized successive § 2255 motion.
VACATED and REMANDED with instructions to DIS-
MISS.