FILED
NOT FOR PUBLICATION JUN 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT CUNNINGHAM, No. 14-55883
Petitioner - Appellant, D.C. No. 2:02-cv-07170-GHK
v.
MEMORANDUM*
RON DAVIS,**
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Submitted June 15, 2015***
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Ron Davis is substituted for his predecessor as Acting Warden of the
California State Prison at San Quentin. Fed. R. App. P. 43(c)(2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Albert Cunningham appeals the district court’s finding that his “Motion for
Relief from Judgment or Order” brought pursuant to Rule 60(b)(6) was a disguised
second or successive habeas corpus petition filed without prior approval from this
Court, and that therefore the district court did not have jurisdiction to consider the
merits of the purported Rule 60(b) motion. We grant Cunningham a limited
Certificate of Appealability so as to permit our review of this appeal. Because we
agree that Cunningham’s purported Rule 60(b) motion is a second or successive
habeas corpus petition—filed without seeking permission from this Court under 28
U.S.C. § 2244(b)(3)(A) to file such a petition—we affirm the district court’s denial
of relief.
“Habeas corpus petitions cannot utilize a Rule 60(b) motion to make an end-run
around the requirements of AEDPA or to otherwise circumvent that statute’s
restrictions on second or successive habeas corpus petitions.” Jones v. Ryan, 733 F.3d
825, 833 (9th Cir. 2013) (internal quotation marks omitted). Motions properly
brought under Rule 60(b) generally attack the integrity of the federal habeas
proceedings, whereas motions that present “claims . . . constitut[ing], in effect, new
requests for relief on the merits” are viewed as disguised second or successive habeas
corpus petitions. Id. at 834; see also Gonzalez v. Crosby, 545 U.S. 524, 530 (2005)
2
(“[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state
court’s judgment of conviction.”).
Cunningham argues in his motion that the district court committed a procedural
error in “deciding the merits of the manipulation of evidence claim after having
determined that it was not properly raised and was thus not properly before the
court.”1 In his original habeas corpus petition, Cunningham raised a claim that the
prosecution in his state jury trial had improperly manipulated the evidence. After the
district court found that this claim was unexhausted, Cunningham filed his First
Amended Petition.
Although the parties dispute whether the manipulation of evidence claim was
included in the First Amended Petition, the district court held that it was not. Under
28 U.S.C. § 2254(b)(2)—which states that “[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State”—the district court denied the
manipulation of evidence claim on the merits. On appeal, we affirmed in toto the
1
Cunningham argued, as a second basis for his purported Rule 60(b) motion,
that the district court “arriv[ed] at a merits determination in contravention of the
procedural rules set forth in Cullen v. Pinholster,” 131 S. Ct. 1388 (2011). The
district court held that this argument was a claim that may only be brought as part
of a second or successive habeas corpus petition. Because Cunningham does not
challenge this ruling in his appeal, we decline to address the issue.
3
district court’s denial of Cunningham’s petition for a writ of habeas corpus.
Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir. 2013). We decline the invitation
to revisit it here.
Cunningham now asserts that the district court’s decision on the merits of the
manipulation of evidence claim was procedurally defective because, by holding that
the claim was not properly raised in the First Amended Petition (as opposed to holding
again that the claim was unexhausted), the court lacked jurisdiction to reach the
claim’s merits. Cunningham argues that the district court should have instead
“dismiss[ed] the claim or permit[ted] Cunningham an opportunity to amend the
petition and attempt to properly plead the claim so that the court could decide it on the
merits.” In his purported Rule 60(b) motion, Cunningham asked the district court “to
vacate the judgement [sic] and to reopen the case for further proceedings in
connection with the manipulation of evidence claim.”
In doing so, Cunningham effectively seeks another bite at the apple. He hopes
that a finding that the district court improperly reached the merits of his manipulation
of evidence claim will lead to readjudication of the claim. This is the very definition
4
of a second or successive habeas corpus petition.2 See Jones, 733 F.3d at 836
(“[Petitioner] is in essence arguing that he deserves a second chance to have the merits
determined favorably in the context of a second or successive 28 U.S.C. § 2254
habeas corpus petition.”).
Given the absence of a 28 U.S.C. § 2244(b)(3)(A) request, the district court
correctly held that it did not have jurisdiction to entertain Cunningham’s disguised
second or successive habeas corpus petition. See id. at 838. Unlike in Jones, where
we construed the petitioner’s appeal as a request for authorization to file a second or
successive habeas corpus petition, see id. at 841, Cunningham expressly disavowed
his desire to have this Court construe his appeal as such a request. We therefore
affirm the district court’s order denying Cunningham’s “Motion for Relief from
Judgment or Order.”
AFFIRMED.
2
Because we conclude that Cunningham’s Rule 60(b) motion is a disguised
second or successive habeas corpus petition, we need not reach the issue of
whether a deficiently pled claim may be addressed in the same manner as an
unexhausted claim under 28 U.S.C. § 2254(b)(2), or whether the district court’s
prior exhaustion ruling placed the manipulation of evidence claim within the ambit
of § 2254(b)(2).
5