United States v. Enio Zaragoza-Santa Cruz

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 04 2014

MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 12-35728 U.S. COURT OF APPEALS

Plaintiff - Appellee, D.C. Nos. 2:10-cv-03085-EFS
2:08-cr-02095-EFS-2
v.

ENIO ZARAGOZA-SANTA CRUZ, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding

Submitted August 28, 2014**
Seattle, Washington

Before: HAWKINS, GRABER, and GOULD, Circuit Judges.

Petitioner timely appeals the district court’s order denying his motion for

reconsideration under Federal Rule of Civil Procedure 60(b). Reviewing de novo

whether Petitioner’s Rule 60(b) motion is an unauthorized second or successive

habeas petition, Jones v. Ryan, 733 F.3d 825, 833 (9th Cir.), cert. denied, 134 S.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Ct. 503 (2013), we hold that it is. The district court therefore lacked jurisdiction to

entertain it. Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam).

Accordingly, we vacate the district court’s order and remand with instructions to

dismiss.

Petitioner’s Rule 60(b) motion is, by its substance, a "disguised second or

successive § 2255 motion" barred by 28 U.S.C. § 2255(h). United States v.

Washington, 653 F.3d 1057, 1060 (9th Cir. 2011). Even assuming that Petitioner

can raise a colorable argument that his original habeas petition was timely,

Petitioner’s Rule 60(b) motion does not attack "some defect in the integrity of the

federal habeas proceedings." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see

also United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (per curiam)

(extending Gonzalez’ holding on petitions brought under 28 U.S.C. § 2254 to those

brought under 28 U.S.C. § 2255). The district court denied Petitioner’s § 2255

petition as untimely and, in the alternative, on the merits, so any error concerning

timeliness was harmless.

Petitioner also seeks leave to amend his habeas petition. But a Rule 60(b)

motion that "seeks to add a new ground for relief" and "attacks the federal court’s

previous resolution of a claim on the merits" is precisely the sort of disguised

2
second or successive habeas petition barred by § 2255(h). Gonzalez, 545 U.S. at

532; Buenrostro, 638 F.3d at 722.

Finally, Petitioner has not sought authorization to file a second or successive

petition under § 2255(h), and nothing in his motion suggests that newly discovered

evidence or a new rule of constitutional law would allow us to grant it. The district

court therefore lacked jurisdiction to entertain Petitioner’s disguised second or

successive habeas petition. Washington, 653 F.3d at 1065. Accordingly, the

remaining issues certified for appeal were not properly before the district court.

We vacate the district court’s order denying Petitioner’s Rule 60(b) motion and

remand with instructions to dismiss for lack of jurisdiction. See Burton, 549 U.S.

at 157 (directing the district court to dismiss for lack of jurisdiction a second or

successive habeas petition).

VACATED and REMANDED with instructions to DISMISS. Costs on

appeal are awarded to Appellee.