Robert Jones, Jr. v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT GLEN JONES, JR., No. 13-16928
Petitioner-Appellant,
D.C. No.
v. 4:03-cv-00478-
DCB
CHARLES RYAN,
Respondent-Appellee.

ROBERT GLEN JONES, JR., No. 13-73647
Petitioner,

v. OPINION

CHARLES RYAN,
Respondent.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Submitted October 10, 2013*
San Francisco, California

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 JONES V. RYAN

Filed October 18, 2013

Before: Ronald M. Gould, Richard C. Tallman,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould

SUMMARY**

Habeas Corpus / Death Penalty

The panel affirmed the district court’s dismissal of a
motion for relief from judgment under Fed. R. Civ. P. 60(b)
and alternative denial on the merits, and denied an application
to file a second or successive habeas petition.

This court previously affirmed the conviction and
sentence, for murder and related crimes, on direct appeal and
federal habeas corpus review. After the Supreme Court
decided Martinez v. Ryan, 132 S. Ct. 1309 (2012), petitioner
filed a Rule 60(b) motion. The panel held that petitioner
could not use Rule 60(b) as a vehicle to assert new claims that
should be brought in a 28 U.S.C. § 2254 habeas corpus
petition, and affirmed the dismissal of the motion as an
unauthorized second or successive petition. The panel
affirmed the district court’s alternative denial of the Rule
60(b) motion on the merits. The panel then construed the
appeal as a request to file a second or successive petition and
denied it.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 JONES V. RYAN 3

COUNSEL

Jon M. Sands, Federal Public Defender for the District of
Arizona; Timothy M. Gabrielsen, Assistant Federal Public
Defender, Tucson, Arizona, for Petitioner-Appellant.

Thomas C. Horne, Attorney General of Arizona; Jeffrey A.
Zick, Chief Counsel; Lacey Stover Gard, Assistant Attorney
General; Jeffrey L. Sparks, Assistant Attorney General,
Phoenix, Arizona, for Respondent-Appellee.

OPINION

GOULD, Circuit Judge:

We confront issues concerning whether and how the
United States Supreme Court’s decision in Martinez v. Ryan,
132 S. Ct. 1309 (2012), affects the standards for when a
Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”) motion
may be filed, and for when a second or successive 28 U.S.C.
§ 2254 habeas corpus petition may be filed.

Arizona death row prisoner Robert Glen Jones, Jr.,
appeals from the district court’s order dismissing his motion
for relief from judgment filed under Rule 60(b). The district
court concluded that Jones’s Rule 60(b) motion sought to
raise new claims such that it actually constituted a second or
successive 28 U.S.C. § 2254 habeas corpus petition that the
district court could not consider absent authorization from our
court. See Jones v. Ryan, No. CV-03-00478, 2013 WL
5348294, at *1, *5 (D. Ariz. Sept. 24, 2013) (“Petitioner is
attempting, under the guise of a Rule 60(b) motion, to gain a
second opportunity to pursue federal habeas relief on new
4 JONES V. RYAN

grounds.”); see also 28 U.S.C. § 2244(b)(3). In No. 13-
16928, we grant Jones a certificate of appealability (“COA”),
permitting our review of this appeal, and affirm the judgment
of the district court. In No. 13-73647, we deny Jones’s
application to file a second or successive habeas corpus
petition.

Because of the expedited nature of this appeal and its
death penalty consequences, however, we also evaluate
Jones’s Rule 60(b) motion on the merits and deny him relief
from judgment because he has not satisfied the standards
permitting relief on those grounds. We then construe Jones’s
appeal as a request for authorization to file a second or
successive 28 U.S.C. § 2254 habeas corpus petition in the
district court pursuant to 28 U.S.C. § 2244(b)(3)(A). See
Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”); see also United States v. Washington, 653 F.3d
1057, 1065 (9th Cir. 2011), cert. denied, 132 S. Ct. 1609
(2012).1 Also, in footnote 5, we address Jones’s application
in No. 13-73647 for leave to file a second or successive
petition for writ of habeas corpus. Because we conclude that
Jones has not met the requirements contained in 28 U.S.C.
§ 2244(b), for filing a second or successive habeas corpus
petition, we deny his separate request.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and
28 U.S.C. § 2253.

1
While United States v. Washington addressed a 28 U.S.C. § 2255
habeas corpus petition, 28 U.S.C. § 2255 “was intended to mirror § 2254
in operative effect,” Reed v. Farley, 512 U.S. 339, 353 (1994) (internal
quotation marks omitted), so our analysis of those statutes is largely the
same.
 JONES V. RYAN 5

I

Jones was convicted of six murders in Arizona state court
and was sentenced to death in 1998. He was also convicted
of first-degree attempted murder, aggravated assault, armed
robbery, and first-degree burglary. Our opinion of August 16,
2012, affirming the district court’s denial of Jones’s first
28 U.S.C. § 2254 federal habeas corpus petition, details the
circumstances of Jones’s crimes and the evidence presented
at his trial:

In 1996, six people were killed during two
armed robberies in Tucson, Arizona. On May
30, the Moon Smoke Shop was robbed, where
two victims were killed and a third was
wounded by gunfire. On June 13, the Fire
Fighters Union Hall was robbed, and four
persons there were killed.

The Moon Smoke Shop robbery began when
two robbers followed a customer, Chip
O’Dell, into the store and at once shot him in
the back of the head. Four employees were in
the store: Noel Engles, Steve Vetter, and
Mark Naiman were behind one counter
concentrating on the stock, and Tom Hardman
was behind another. After hearing the
gunshot, Engles and Naiman looked up to see
a robber in a long-sleeved shirt, dark
sunglasses, and a dark cowboy hat wave a gun
at them and yell to get down. Naiman
recognized the gun as a 9mm. Engles
dropped to his knees and pushed an alarm
button.
6 JONES V. RYAN

Engles noticed a second robber move toward
the back room and heard someone shout, “Get
the f* * * out of there!” The gunman at the
counter told Naiman to open the cash register.
After Naiman did so, the gunman reached
over the counter and began firing at the others
on the floor. Thinking that the others were
dead, Naiman ran out of the store and called
911 at a pay phone. On the floor behind the
counter, Engles heard shots from the back
room and then, realizing the gunmen had left
the store, also ran out of the store, by the back
door. Running up the alley to get help, Engles
saw a light-colored pickup truck with two
people in it accelerate and turn on a street into
heavy traffic.

Naiman and Engles survived. Vetter also
survived, although shot in the arm and face.
O’Dell and Hardman were both killed by
close range shots to the head, O’Dell at the
entrance to the store and Hardman in the back
room. Three 9mm shell casings were found in
the store, one beside O’Dell and two near the
cash register. Two .380 shells were found
near Hardman’s body. Two weeks after the
robbery, Naiman met with a police sketch
artist who used his description of the gunmen
to create sketches of the suspects. These
sketches were released to the media in an
effort to catch the perpetrators. At trial, two
acquaintances of Jones testified that when
they saw the police sketches their first thought
was that they looked like Jones.
 JONES V. RYAN 7

The Fire Fighters Union Hall was robbed two
weeks later. There were no survivors of the
violence that befell those present there.
Nathan Alicata discovered the robbery at 9:20
p.m. when he arrived at the Union Hall and
discovered the bodies of Maribeth Munn
(Alicata’s girlfriend), Carol Lynn Noel (the
bartender), and a couple, Judy and Arthur
Bell. The police investigation turned up three
9mm shell casings, two live 9mm shells, and
two .380 shell casings. About $1300 had been
taken from the open cash register, but the
robbers were unable to open the safe. The
coroner, who examined the bodies at the
scene, concluded that the bartender had been
shot twice, and that the other three victims
were shot through the head at close range as
their heads lay on the bar. The bartender's
body had a laceration on her mouth consistent
with having been kicked in the face, and
Arthur Bell’s body had a contusion on the
right side of his head showing he was struck
with a blunt object, possibly a pistol.

In 1998, petitioner Robert Jones was
convicted of these ghastly crimes of multiple
murder and sentenced to death. His co-
defendant, Scott Nordstrom, had been
convicted in a separate proceeding six months
earlier. Jones’s theory of the case at trial and
on appeal was that Scott Nordstrom and his
brother David Nordstrom committed these
murders, while he was not involved. While
there was no physical evidence or positive
8 JONES V. RYAN

eyewitness identifications conclusively
linking Jones to the crimes, both he and his
truck matched descriptions given by survivors
of the Moon Smoke Shop robbery. The
prosecution’s case against Jones was based in
large part on David Nordstrom’s testimony.
David Nordstrom gave a detailed account of
his role as a getaway driver in the Moon
Smoke Shop robbery, and identified Jones as
a robber and shooter, as well as the guns he
carried. But that was not all of the testimony
against Jones. Lana Irwin, an acquaintance of
Jones, also testified that she overheard Jones
talking about details of these murders that the
police had not released to the general public.
Jones’s friend David Evans gave additional
implicating testimony.

Jones v. Ryan, 691 F.3d 1093, 1096–97 (9th Cir. 2012), cert.
denied, 133 S. Ct. 2831 (2013).2

Jones’s convictions and sentence were upheld on direct
review, and on state collateral review and federal habeas
corpus review, culminating in our opinion in Jones v. Ryan,
691 F.3d 1093 (9th Cir. 2012). Jones filed a petition for a
writ of certiorari at the United States Supreme Court, which
declined review. Jones v. Ryan, 133 S. Ct. 2831 (2013). The
Supreme Court decided Martinez on March 20, 2012, holding
that, in some circumstances, the ineffective assistance of state

2
More details of the crimes and the evidence presented at Jones’s trial
are set forth in our earlier opinion and in the Arizona Supreme Court’s
opinion upholding Jones’s convictions and sentence. See State v. Jones,
4 P.3d 345, 352–55 (Ariz. 2000), cert. denied, 532 U.S. 978 (2001).
 JONES V. RYAN 9

post-conviction relief counsel can serve as cause to excuse
the procedural default of an ineffective-assistance-of-trial-
counsel claim. 132 S. Ct. at 1315. Thereafter, on August 21,
2013, Jones filed a motion in the district court seeking relief
from judgment pursuant to Rule 60(b)(6). Jones sought to
assert three new ineffective-assistance-of-trial-counsel claims
based on Martinez, and to assert a new claim for an alleged
violation of Brady v. Maryland, 373 U.S. 83 (1963), during
habeas corpus proceedings.

The State of Arizona (“the State”) moved to dismiss
Jones’s self-styled Rule 60(b) motion as an unauthorized
second or successive 28 U.S.C. § 2254 habeas corpus
petition. See 28 U.S.C. § 2244(b)(2). The district court
agreed with the State that Jones could not use Rule 60(b) as
a vehicle to assert new claims and dismissed Jones’s appeal
for lack of jurisdiction absent authorization from the Court of
Appeals for the Ninth Circuit. Jones, 2013 WL 5348294, at
*1. The district court neither granted nor explicitly denied a
COA. This appeal followed. Jones’s execution has been set
for October 23, 2013. As noted above, in No. 13-16928 we
grant Jones a COA, which is necessary to permit our review
of this appeal.3

3
Were Jones appealing the denial or dismissal of a valid Rule 60(b)
motion, he may have had no need for a COA. See Harbison v. Bell,
556 U.S. 180, 183 (2009) (“[28 U.S.C. §] 2253(c)(1)(A) . . . governs final
orders that dispose of the merits of a habeas corpus proceeding—a
proceeding challenging the lawfulness of the petitioner’s detention.”).
Because we affirm the district court’s ruling that Jones’s purported Rule
60(b) motion was in fact an unauthorized second or successive 28 U.S.C.
§ 2254 habeas corpus petition, however, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214, “governs the conditions of [Jones’s] appeal, and so he was required
to seek a COA to obtain appellate review of the dismissal of his habeas
10 JONES V. RYAN

II

We review the district court’s decision to dismiss Jones’s
Rule 60(b) motion as an unauthorized second or successive
28 U.S.C. § 2254 habeas corpus petition de novo. See
Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir. 2005);
Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en
banc).

Rule 60(b) “allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited
set of circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 528
(2005). Rule 60(b)(6), the provision under which Jones
brought his motion, permits reopening for “any . . . reason
that justifies relief” other than the more specific reasons set
out in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b)(6); see
Gonzalez, 545 U.S. at 528–29. A movant seeking relief under

petition.” Slack v. McDaniel, 529 U.S. 473, 482 (2000). We treat Jones’s
notice of appeal, filed on September 24, 2013, as an application for a
COA. See Fed. R. App. P. 22(b); Slack, 529 U.S. at 483.

When the district court denies a habeas corpus petition on procedural
grounds and fails to reach the prisoner’s underlying constitutional claim,
a COA should issue when the prisoner shows “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack,
529 U.S. at 484. Reviewing Jones’s motion, we conclude that he has
satisfied AEDPA’s requirements for a COA by making “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
and by showing that jurists of reason could debate whether the district
court properly dismissed Jones’s Rule 60(b) motion as a disguised (and
unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus
petition. We grant Jones a COA, though this of course is not the same as
authorizing him to file a second or successive 28 U.S.C. § 2254 habeas
corpus petition based on the standard in 28 U.S.C. § 2244(b).
 JONES V. RYAN 11

Rule 60(b)(6) must show “‘extraordinary circumstances’
justifying the reopening of a final judgment.” Gonzalez,
545 U.S. at 535 (quoting Ackermann v. United States,
340 U.S. 193, 199 (1950)). Such circumstances “rarely occur
in the habeas context.” Id.

While the habeas restrictions established by AEDPA “did
not expressly circumscribe the operation of Rule 60(b),” they
“are made indirectly relevant . . . by the fact that Rule 60(b),
like the rest of the Rules of Civil Procedure, applies in habeas
corpus proceedings . . . only to the extent that [it is] not
inconsistent with applicable federal statutory provisions and
rules.” Id. at 529 (alteration in original) (footnote omitted)
(internal quotation marks omitted). Habeas corpus petitioners
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. Calderon v. Thompson, 523 U.S.
538, 547 (1998) (internal quotation marks omitted); see also
United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir.
2011) (per curiam) (“[A] state prisoner may not rely on Rule
60(b) to raise a new claim in federal habeas proceedings that
would otherwise be barred as second or successive under
§ 2254.”), cert. denied, 132 S. Ct. 342 (2011).

AEDPA generally limits a petitioner to one federal habeas
corpus motion and precludes “second or successive” habeas
corpus petitions unless the petitioner meets certain narrow
requirements. See 28 U.S.C. § 2244(b). The statute provides
that “[a] claim presented in a second or successive habeas
corpus application under section 2254 that was not presented
in a prior application shall be dismissed unless” it “relies on
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
12 JONES V. RYAN

unavailable” or on newly discovered facts that show a high
probability of actual innocence. Id. § 2244(b)(2)(A)–(B); see
also Gonzalez, 545 U.S. at 529–30.

Because of the difficulty of meeting this standard, habeas
corpus petitioners at times have characterized their second or
successive habeas corpus petitions as Rule 60(b) motions.
But “[w]hen a Rule 60(b) motion is actually a disguised
second or successive § 225[4] motion, it must meet the
criteria set forth in” 28 U.S.C. § 2244(b)(2). See Washington,
653 F.3d at 1059–60 (discussing a second or successive
28 U.S.C. § 2255 petition); see also Gonzalez, 545 U.S. at
528.

Our analysis of whether Jones’s motion is a valid Rule
60(b) motion or a disguised 28 U.S.C. § 2254 habeas corpus
petition is informed by the Supreme Court’s decision in
Gonzalez v. Crosby. See Washington, 653 F.3d at 1062.
Neither Gonzalez nor any other Supreme Court case has
“adopted a bright-line rule for distinguishing between a bona
fide Rule 60(b) motion and a disguised second or successive
[§ 2254] motion.” Id. at 1060. Rather, Gonzalez held that a
legitimate Rule 60(b) motion “attacks . . . some defect in the
integrity of the federal habeas proceedings,” while a second
or successive habeas corpus petition “is a filing that contains
one or more ‘claims,’” defined as “asserted federal bas[e]s for
relief from a state court’s judgment of conviction.” 545 U.S.
at 530, 532. Put another way, a motion that does not attack
“the integrity of the proceedings, but in effect asks for a
second chance to have the merits determined favorably”
raises a claim that takes it outside the bounds of Rule 60(b)
and within the scope of AEDPA’s limitations on second or
successive habeas corpus petitions. Id. at 532 n.5.
 JONES V. RYAN 13

Proper Rule 60(b) motions include those alleging fraud on
the federal habeas corpus court, as well as those in which the
movant “asserts that a previous ruling which precluded a
merits determination was in error—for example, a denial for
such reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id. at 532 nn.4 & 5.

By contrast, Rule 60(b) motions presenting “claims” such
that they constitute, in effect, new requests for relief on the
merits include motions to present “newly discovered evidence
. . . in support of a claim previously denied,” as well as
motions contending that “a subsequent change in substantive
law is a reason justifying relief . . . from the previous denial
of a claim.” Id. at 531 (citations omitted) (internal quotation
marks omitted). Further, “an attack based on . . . habeas
counsel’s omissions” generally does not go to the integrity of
the proceedings; rather, it is a disguised second or successive
28 U.S.C. § 2254 habeas corpus petition masquerading as a
Rule 60(b) motion. Id. at 532 n.5. Such a motion, “although
labeled a Rule 60(b) motion, is in substance a successive
habeas petition and should be treated accordingly.” Id. at
531.

In light of these principles, we must determine whether
Jones’s motion alleges a “defect in the integrity of the federal
habeas proceedings” and thus presents a legitimate Rule 60(b)
motion, or whether, as the district court ruled, it raises
“claims” and, “although labeled a Rule 60(b) motion, is in
substance a successive habeas petition [that] should be treated
accordingly.” Id. at 531, 532. “In conducting this analysis,
we consider separately each of the contentions that are on
appeal.” Washington, 653 F.3d at 1064. We consider here
Jones’s three ineffective-assistance-of-trial-counsel claims
raised under Martinez and his one Brady claim.
14 JONES V. RYAN

A

Seeking to reopen his federal habeas corpus proceedings
under Rule 60(b), Jones alleges three ineffective-assistance-
of-trial-counsel claims that were neither presented in state
post-conviction proceedings nor included in his initial federal
habeas corpus petition. First, Jones argues, his trial counsel
did not challenge the admissibility of evidence generated by
the electronic monitoring system that was used to track a
prosecution witness. Second, Jones contends that his trial
counsel did not call a key rebuttal witness whose testimony,
Jones alleges, would have undercut that of one of the
prosecution’s witnesses. Third, Jones argues that his trial
counsel did not object to the state sentencing court’s alleged
application of an unconstitutional causal nexus test, in
violation of Eddings v. Oklahoma, 455 U.S. 104 (1982).

Jones contends that he did not have a “fair shot” at raising
these ineffective-assistance-of-trial-counsel claims in his first
habeas corpus proceeding because his habeas corpus counsel,
Daniel Maynard, was also his state post-conviction relief
counsel. As a result, Jones’s argument proceeds as follows:
Maynard operated under a per se conflict of interest during
Jones’s habeas corpus proceeding that precluded him from
objectively evaluating the thoroughness of the ineffective-
assistance-of-trial-counsel claims he brought at the state
level. In other words, Jones argues, for Maynard to have
brought, at Jones’s first federal habeas corpus proceeding, the
three ineffective-assistance-of-trial-counsel claims that Jones
now seeks to raise in his purported Rule 60(b) motion,
Maynard in effect would have had to allege his own
ineffective assistance in not bringing such claims at the state
post-conviction relief stage.
 JONES V. RYAN 15

Jones’s argument is premised on the Supreme Court’s
decision in Martinez, which by its terms created a “narrow
exception,” 132 S. Ct. at 1315, to the well-established rule in
Coleman v. Thompson, 501 U.S. 722 (1991), that state post-
conviction relief counsel’s ineffective assistance cannot serve
as cause to excuse the procedural default of an ineffective-
assistance-of-trial-counsel claim. Martinez held that, in some
circumstances, the ineffective assistance of state post-
conviction relief counsel can serve as cause to excuse the
procedural default of an ineffective-assistance-of-trial-
counsel claim. 132 S. Ct. at 1315. In light of Martinez, Jones
contends that Maynard limited the claims of ineffective
assistance of trial counsel raised on habeas review because he
had a “strong disincentive” to raise those that would have
required him to assert his own ineffectiveness during state
post-conviction relief proceedings.

We reject Jones’s argument for three reasons. First, the
Supreme Court in Gonzalez said that “an attack based on . . .
habeas counsel’s omissions . . . ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second
chance to have the merits determined favorably.” 545 U.S.
at 532 n.5. The Court in Gonzalez was careful to explain how
Rule 60(b) could not be used to get a second chance to assert
new claims.

Second, even if habeas corpus counsel’s conflict of
interest could, in some circumstances, be a defect in the
integrity of the proceedings assailable under Rule 60(b),
Maynard’s alleged conflict in Jones’s case does not constitute
such a defect. Jones filed his first petition for habeas corpus
relief nearly eight years before Martinez was decided. The
district court denied the petition more than two years before
the rule in Martinez was announced. At all times during
16 JONES V. RYAN

Maynard’s representation of Jones in the first habeas corpus
proceeding, Coleman’s rule that state post-conviction relief
counsel’s ineffective assistance could not serve as cause to
excuse the procedural default of an ineffective-assistance-of-
trial-counsel claim was settled law. As a result, it cannot be
argued that the integrity of Jones’s first habeas corpus
proceeding is in doubt, because a proceeding is not without
integrity when in accord with law. We reject Jones’s
argument that Maynard was ineffective at Jones’s first habeas
corpus proceeding for not trying to make Jones’s case
Martinez long before the Supreme Court granted certiorari in
Martinez.

Third, the rule announced in Gonzalez, that a valid Rule
60(b) motion “attacks . . . some defect in the integrity of the
federal habeas proceedings,” id. at 532, must be understood
in context generally to mean the integrity of the prior
proceeding with regard to the claims that were actually
asserted in that proceeding. “That [Jones] did not raise in his
first [habeas] proceeding the claim[s] he wants to raise here
does not render the adjudication of the claims that he did raise
suspect.” Buenrostro, 638 F.3d at 722. Rule 60(b) does not
permit a petitioner to assert entirely new claims, i.e. “asserted
federal bas[e]s for relief from a state court’s judgment of
conviction,” Gonzalez, 545 U.S. at 530, that the petitioner
contends were required to ensure those proceedings’ integrity.
Martinez, then, did not change the rule in Gonzalez that Rule
60(b) cannot be used as a vehicle to bring new claims.
Martinez did not purport to overrule Gonzalez, nor is its
language irreconcilable with that case’s central holding.
Gonzalez firmly stands for the principle that new claims
cannot be asserted under the format of a Rule 60(b) motion,
and instead Rule 60(b) is properly applied when there is some
 JONES V. RYAN 17

problem going to the integrity of the court process on the
claims that were previously asserted.

None of Jones’s arguments amounts to an allegation of a
“defect in the integrity of the federal habeas proceedings” that
constitutes grounds for a legitimate Rule 60(b) motion. Id. at
532. Rather, Jones 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. Id. at 532 n.5. But the new claims
asserted by Jones are “precisely the sort of attack on the
‘federal court’s previous resolution of a claim on the merits’
. . . that Gonzalez characterized as a ‘claim’ which is outside
the scope of Rule 60(b).” Washington, 653 F.3d at 1064
(citation omitted) (quoting Gonzalez, 545 U.S. at 532).

B

Jones also alleges that the State, during his federal habeas
corpus proceedings, violated Brady by suppressing
exculpatory evidence related to the electronic monitoring
system used to track key prosecution witness David
Nordstrom, who Jones says committed the murders for which
he was convicted. Jones asserts that the State was on notice,
based on two of his initial habeas corpus claims, of the
possible malfunction of the monitoring system and further
that the State had a duty to investigate his claims and to
disclose the results of its investigation to Jones.

There are three problems with Jones’s argument. First, as
the trial court noted, “it is highly questionable whether the
type of evidence [Jones] alleges [the State] should have
procured and disclosed has any relevancy to the [ineffective-
assistance-of-trial-counsel] claims raised in [Jones’s] federal
18 JONES V. RYAN

habeas petition.” Jones, 2013 WL 5348294, at *5. Under
Brady, the prosecution may not suppress, but rather must
disclose, “evidence favorable to an accused . . . where the
evidence is material either to guilt or to punishment.”
373 U.S. at 85. Evidence is “material” only if “there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” Strickler v. Greene, 527 U.S. 263, 280 (1999)
(internal quotation marks omitted). “A ‘reasonable
probability’ of a different result [exists] when the
government’s evidentiary suppression undermines confidence
in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419,
434 (1995) (internal quotation marks omitted). Here, where
the relevant evidence is not in possession of the police or the
prosecution, and where Jones has failed to make a showing
that the evidence would in fact impeach David Nordstrom’s
testimony, we cannot say that the evidence is “material” for
Brady purposes. Because “second-in-time Brady claims that
do not establish materiality of the suppressed evidence are
subject to dismissal under” 28 U.S.C. § 2244(b), United
States v. Lopez, 577 F.3d 1053, 1066 (9th Cir. 2009), our
inquiry could end here.

Second, even if the evidence Jones seeks were assumed
to be material, the Brady right of pretrial disclosure available
to defendants at trial does not extend to habeas corpus
petitioners seeking post-conviction relief. See Dist.
Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 68–69 (2009) (noting that upon conviction, a
criminal defendant “does not have the same liberty interests
as a free man” and “has only a limited interest in
postconviction relief”). In District Attorney’s Office for the
Third Judicial District v. Osborne, the Supreme Court stated
that, “Brady is the wrong framework” for evaluating a
 JONES V. RYAN 19

convicted defendant’s due process rights in post-conviction
relief proceedings. Id. at 69. The State had no duty to
disclose evidence, exculpatory or otherwise, in Jones’s initial
federal habeas corpus proceeding.

Third, even if the alleged evidence were material and
even if Jones, as a habeas corpus petitioner seeking post-
conviction relief, were entitled to the protections of Brady, he
would still not be entitled to the evidence he seeks because
that evidence was not in possession of the State, and hence
cannot be said to have been suppressed by the State. To
comply with Brady, a prosecutor “has a duty to learn of any
favorable evidence known to the others acting on the
government’s behalf in this case, including the police.”
Strickler, 527 U.S. at 281 (internal quotation marks omitted).
Here, Behavioral Intervention, Inc. (“BI”), which
manufactured the electronic monitoring device used to track
David Nordstrom, was not “acting on the government’s
behalf in this case.” Rather, BI was merely in a contract with
the state to provide monitoring equipment for parolees and
other persons in Pima County released to home confinement
as a condition of their supervision by the Arizona Department
of Corrections. Jones alleges that BI knew its device had
problems, not that the State knew of those problems. “The
prosecution is under no obligation to turn over materials not
under its control.” United States v. Aichele, 941 F.2d 761,
764 (9th Cir. 1991). Jones had equal access to information
regarding BI’s alleged problems as did the State, as evidenced
by his attaching to his Rule 60(b) motion news stories from
1997 and 1998 documenting such problems. Jones cannot
now complain that the State violated Brady at the habeas
corpus stage “by not bringing the evidence to [his] attention.”
See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (internal
quotation marks omitted).
20 JONES V. RYAN

To sum up, it is speculative whether the evidence Jones
seeks from BI would have been favorable to Jones, there is no
Brady obligation during habeas corpus proceedings under
Osborne, and there is no way the information can be
considered to have been suppressed by the State. There was
no Brady violation.

Pursuant to the Supreme Court’s instructions in Gonzalez,
we have examined each claim in Jones’s Rule 60(b) motion
to determine whether it alleges a defect in the integrity of the
prior federal habeas corpus proceeding or instead presents
“claims” constituting a renewed request for relief on the
merits. See Washington, 653 F.3d at 1066. Because we have
determined that Jones’s purported Rule 60(b) motion is in
fact a disguised 28 U.S.C. § 2254 habeas corpus petition, we
affirm the district court’s dismissal of the motion in light of
Jones’s failure to comply with the “stringent standard for
presenting a second or successive” 28 U.S.C. § 2254 habeas
corpus petition laid out in 28 U.S.C. § 2244(b). Id. at 1065.
Before he brought his disguised Rule 60(b) motion, Jones did
not move in this court for an order “authorizing the district
court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Because we have not yet authorized Jones
to file such a petition, we hold that the district court was
without jurisdiction to entertain Jones’s “successive (albeit
disguised)” 28 U.S.C. § 2254 habeas corpus petition. See
Washington, 653 F.3d at 1065.

III

Assuming for the sake of argument that Jones’s motion is
permissible under Rule 60(b) as a challenge to a defect in the
integrity of his prior habeas corpus proceedings under
Gonzalez, an assumption we are willing to make to expedite
 JONES V. RYAN 21

and promote a full review in this death penalty context, we
address whether Jones has satisfied the standards for relief
from judgment under that Rule. While it is ordinarily a
district court that conducts this inquiry in the first instance,
“appellate courts may, in their discretion, decide the merits of
a Rule 60(b) motion in the first instance on appeal.” Phelps
v. Alameida, 569 F.3d 1120, 1134–35 (9th Cir. 2009) (citing
Gonzalez, 545 U.S. at 536–38). Exercising that discretion
now, again with the purpose to expedite, we hold
alternatively that Jones has not met the standard for relief
under Rule 60(b), in light of the relevant factors identified in
Phelps v. Alameida, and we deny him relief.

As outlined above, Rule 60(b) “allows a party to seek
relief from a final judgment, and request reopening of his
case, under a limited set of circumstances.” Gonzalez,
545 U.S. at 528. Rule 60(b)(6), the provision under which
Jones brought his motion, permits reopening for “any . . .
reason that justifies relief” other than the more specific
reasons set out in Rule 60(b)(1)–(5). Fed. R. Civ. P. 60(b);
see Gonzalez, 545 U.S. at 528–29. A movant seeking relief
under Rule 60(b)(6) must show “‘extraordinary
circumstances’ justifying the reopening of a final judgment.”
Gonzalez, 545 U.S. at 535 (quoting Ackermann, 340 U.S. at
199). Such circumstances “rarely occur in the habeas
context.” Id. Our decision in Phelps identified six factors to
guide our determination regarding when a petitioner seeking
relief under Rule 60(b) demonstrates such “extraordinary
circumstances.” 569 F.3d at 1135. These factors are
particularly useful when, as here, we are asked to apply Rule
60(b)(6) to a rejected petition for habeas corpus. Id. at 1135
n.19.
22 JONES V. RYAN

Jones contends that Martinez created a change in the law
that constituted “extraordinary circumstances” such that Rule
60(b) relief is warranted. We have held that “the proper
course when analyzing a Rule 60(b)(6) motion predicated on
an intervening change in the law is to evaluate the
circumstances surrounding the specific motion before the
court.” Id. at 1133. A decision to grant Rule 60(b)(6) relief,
then, is a “case-by-case inquiry” that requires us to balance
numerous factors, but it is clear that “a change in the law will
not always provide the truly extraordinary circumstances
necessary to reopen a case.” Id. (internal quotation marks
omitted). We evaluate Jones’s argument in light of the six
factors articulated in Phelps.

The first factor is a change in the law. Id. at 1135–36.
Jones argues that Martinez was a “sea change in the Supreme
Court’s procedural jurisprudence that requires relief from
judgment in this captial habeas corpus case.” But in Lopez v.
Ryan, 678 F.3d 1131 (9th Cir. 2012), cert. denied, 133 S. Ct.
55 (2012), we stated that Martinez was a “remarkable—
if ‘limited’—development in the Court’s equitable
jurisprudence” that “weigh[s] slightly in favor of reopening
[the petitioner’s] habeas case.” Id. at 1136 (quoting Martinez,
132 S. Ct. at 1319). This factor weighs slightly in Jones’s
favor.

The second factor is the petitioner’s exercise of diligence
in pursuing his claim for relief. Phelps, 569 F.3d at 1136.
Jones filed his Rule 60(b) motion on August 21, 2013, more
than 17 months after the Supreme Court decided Martinez on
March 20, 2012. Jones contended in his motion that 17
months “is not significant in the history of a capital case,”
and that the delay was attributable to his prior, allegedly
conflicted counsel Maynard who had a “disincentive to re-
 JONES V. RYAN 23

evaluate the record and the claims he earlier brought . . . or to
perform any additional investigation.” Jones now argues that
his “delay has not been unreasonable” because “newly-
appointed, non-conflicted counsel” filed the Rule 60(b)
motion less than four months after appointment. This factor
has little weight in either direction.

The third factor is whether granting the Rule 60(b) motion
to reopen the case would upset “the parties’ reliance interest
in the finality of the case.” Id. at 1137. Jones, noting that
“[t]here is no such thing as a partial execution,” argues that
because he has not been executed, the State cannot claim a
reliance interest on any already executed judgments. But this
is not so. Jones’s execution warrant, which set his execution
date, issued on August 27, 2013, and as we held in Lopez,
“[t]he State’s and the victim[s’] interests in finality,
especially after a warrant of execution has been obtained and
an execution date set, weigh against granting post-judgment
relief.” 678 F.3d at 1136. This factor weighs strongly against
Jones.4

The fourth factor “examines the delay between the finality
of the judgment and the motion for Rule 60(b)(6) relief.”
Phelps, 569 F.3d at 1138 (internal quotation marks omitted).
This factor stands for the “principle that a change in the law
should not indefinitely render preexisting judgments subject

4
An Arizona execution warrant expires 24 hours from the date it sets for
the execution. Ariz. R. Crim. P. 31.17(c)(3). Jones’s warrant sets his
execution for October 23, 2013, and therefore expires the next day.
Because it would take far longer than that to reopen and adjudicate the
claims Jones now wishes to pursue, the State would be forced to obtain a
new warrant if Jones is allowed to proceed but then loses. Thus, the likely
need to restart the entire execution process must be considered in
weighing the State’s interest in finality.
24 JONES V. RYAN

to potential challenge.” Id. The Supreme Court denied
certiorari on Jones’s initial habeas corpus petition on June 17,
2013, and Jones filed his Rule 60(b) motion in the district
court on August 21, 2013. This two-month gap was not a
long “delay.” This factor weighs slightly in Jones’s favor.

The fifth factor looks to the closeness of the relationship
between the decision resulting in the original judgment and
the subsequent decision that represents a change in the law.
Id. at 1138–39. Jones argues that “Martinez confers an
equitable remedy to excuse” his habeas corpus counsel’s
alleged per se conflict of interest and that he should be
restored to the status quo ante. Martinez, however, says
nothing about conflicts of interest, nor does it overrule the
proposition in Gonzalez that “an attack based on . . . habeas
counsel’s omissions . . . ordinarily does not go to the integrity
of the proceedings.” 545 U.S. at 532 n.5. This factor weighs
heavily against Jones.

The sixth factor concerns comity. Phelps, 569 F.3d at
1139. In Phelps, we said that “we need not be concerned
about upsetting the comity principle when a petitioner seeks
reconsideration not of a judgment on the merits of his habeas
petition, but rather of an erroneous judgment that prevented
the court from ever reaching the merits of that petition.” Id.
Phelps was appealing the dismissal of his habeas corpus
petition as untimely; granting his Rule 60(b) motion would
not have upset principles of comity. Here, though, Jones
seeks to bring merits claims disguised as a Rule 60(b) motion
because his initial habeas corpus petition was already fully
adjudicated on the merits and denied. Granting his motion
would upset principles of comity. This factor weighs strongly
against Jones.
 JONES V. RYAN 25

The equitable factors described above give little support
for reopening Jones’s case. On balance, the Supreme Court’s
decision in Martinez does not constitute such an
“extraordinary circumstance” as to warrant reopening of
Jones’s case under Rule 60(b)(6), even were we to disregard
that Jones’s assertion of new claims takes him outside of Rule
60(b). See Gonzalez, 545 U.S. at 536 (“It is hardly
extraordinary that subsequently, after petitioner’s case was no
longer pending, this Court arrived at a different
interpretation.”).

IV

Given the expedited nature of this appeal and its death
penalty context, we now construe Jones’s appeal as a request
for authorization to file a second or successive 28 U.S.C.
§ 2254 habeas corpus petition in the district court pursuant to
28 U.S.C. § 2244(b)(3)(A). See, e.g., Washington, 653 F.3d
at 1065 (doing the same); Cooper v. Calderon, 274 F.3d
1270, 1274–75 (9th Cir. 2001) (per curiam) (doing the same);
Thompson, 151 F.3d at 922 (“Certainly, if at all possible, a
decision upon whether a successive application should be
granted . . . should be decided on the merits rather [than]
having a person executed because of time constraints and
procedural niceties.”); cf. Libby v. Magnusson, 177 F.3d 43,
46 (1st Cir. 1999) (“[N]o useful purpose would be served by
forcing the petitioner to retreat to square one and wend his
way anew through the jurisdictional maze. We have the
power, in the exercise of our informed discretion, to treat this
appeal as if it were . . . a motion for authority to proceed
26 JONES V. RYAN

under section 2244(b)(3)(A) . . . and we will do so.” (citations
omitted)).5

5
So construed, we reject Jones’s application for the reasons stated in the
opinion. Jones also filed yesterday, in No. 13-73647, a separate
application for leave to file a second or successive habeas corpus petition.
In his application, Jones seeks permission to pursue a freestanding claim
of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995), and a
claim that the State violated his due process rights by withholding
potentially exculpatory evidence under Brady. Schlup requires a habeas
petitioner pursuing a claim of actual innocence to show “that it is more
likely than not that no reasonable juror would have convicted him in the
light of the new evidence” before he will be granted relief. Id. at 327.
Jones argues that it is an open question whether it is this test or AEDPA’s
more restrictive standard for filing a second or successive petition, see
28 U.S.C. § 2244(b)(2)(B), that applies to freestanding claims of actual
innocence. See Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004)
(en banc).

Without deciding that question here, we conclude that even if the
Schlup standard applies to Jones’s actual innocence claim, its
requirements have not been satisfied. Jones has not shown that the
evidence he seeks would exonerate him. Indeed, Jones concedes that, “[i]t
may be that [he] will not prevail” even if he obtains discovery, and he can
only state that the evidence he seeks “could” exculpate him. Such
speculative theories do not show “that it is more likely than not that no
reasonable juror would have convicted [Jones] in the light of the new
evidence.” Schlup, 513 U.S. at 327. Schlup exists to protect petitioners
with legitimate claims of actual innocence, not to permit exploratory
proceedings in a second or successive habeas corpus petition, by a
petitioner who has arrayed against him strong evidence of guilt.

This result is informed by and consistent with our analysis of Jones’s
similar Brady claim that he brought as part of his Rule 60(b) motion. Both
claims rely on the theory that the electronic monitoring records would
erode David Nordstrom’s credibility. The Rule 60(b) version of this claim
failed the 28 U.S.C. § 2244(b)(2)(B) standard for largely the same reason
that this version fails the Schlup standard: even if the electronic
monitoring evidence shows what Jones wants it to show, it is not
sufficiently exculpatory.
 JONES V. RYAN 27

Construing Jones’s appeal as a belated request for
authorization to file a second or successive habeas corpus
petition in the district court, we deny his request to do so for
failure to comply with the “stringent standard for presenting
a second or successive” 28 U.S.C. § 2254 habeas corpus
petition laid out in 28 U.S.C. § 2244(b)(2). Washington,
653 F.3d at 1065.

Before AEDPA was enacted in 1996, “a complex and
evolving body of equitable principles informed and controlled
by historical usage, statutory developments, and judicial
decisions” known as the abuse-of-the-writ doctrine guided
federal courts in their consideration of second or successive
habeas corpus petitions. McCleskey v. Zant, 499 U.S. 467,
489 (1991); see also Lopez, 577 F.3d at 1059. AEDPA
codified the judicially established principles of the abuse-of-
the-writ doctrine and “greatly restrict[ed] the power of federal
courts to award relief to state prisoners who file second or
successive habeas corpus applications.” Tyler v. Cain,
533 U.S. 656, 661 (2001); see also Lopez, 577 F.3d at
1060–61. Indeed, a petitioner is generally limited to one
federal habeas corpus motion, and AEDPA permits second or
successive motions “only in limited circumstances.” Dodd v.
United States, 545 U.S. 353, 359 (2005). Those limited
circumstances are set forth in 28 U.S.C. § 2244(b), which
provides:

(1) A claim presented in a second or
successive habeas corpus application under
section 2254 that was presented in a prior
application shall be dismissed;

(2) A claim presented in a second or
successive habeas corpus application under
28 JONES V. RYAN

section 2254 that was not presented in a prior
application shall be dismissed unless—

(A) the applicant shows that the claim
relies on a new rule of constitutional law,
made retroactive to cases on collateral review
by the Supreme Court, that was previously
unavailable; or

(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and

(ii) the facts underlying the claim, if
proven and viewed in light of the evidence as
a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2244(b). Because Jones filed his motion after
April 24, 1996, the effective date of AEDPA, his case is
governed by that statute’s stringent standards.

“Permitting a state prisoner to file a second or successive
federal habeas corpus petition is not the general rule, it is the
exception, and an exception that may be invoked only when
the demanding standard set by Congress is met.” Bible v.
Schriro, 651 F.3d 1060, 1063 (9th Cir. 2011) (per curiam).
Before a petitioner may file a second or successive habeas
corpus petition in the district court, he must seek
authorization from the relevant court of appeals. 28 U.S.C.
§ 2244(b)(3)(A). Construing Jones’s appeal as a request for
 JONES V. RYAN 29

such authorization, we may not grant Jones what he seeks
unless we determine that he has made a prima facie showing
that his application satisfies the requirements outlined above.
Id. § 2244(b)(3)(C); see also Pizzuto v. Blades, 673 F.3d
1003, 1007 (9th Cir. 2012). We consider now whether he has
made such a showing.

It is undisputed that none of the claims Jones raises in his
pending motion were included in his first federal habeas
corpus petition. Whether he may bring these claims now,
then, rests on whether Jones has satisfied one of the two
“narrow exceptions” codified in 28 U.S.C. § 2244(b)(2)—
namely whether he has shown that (1) his claims rely on a
new rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court; or (2) new facts,
previously undiscoverable, if proven, would establish his
actual innocence by clear and convincing evidence. See
Gonzalez, 545 U.S. at 530.

A

AEDPA permits second or successive review of a claim
that “relies on 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.
§ 2244(b)(2)(A). This provision sets forth three prerequisites
for a permissible second or successive petition: (1) the claim
must rely on a “new rule of constitutional law”; (2) the rule
must have been “made retroactive to cases on collateral
review by the Supreme Court”; and (3) the claim must have
been “previously unavailable.” See Tyler, 533 U.S. at 662.
“[T]he Supreme Court is the only entity that can ‘ma[k]e’ a
new rule retroactive,” and it only does so “through a
holding.” Id. at 663 (alteration in original).
30 JONES V. RYAN

Jones’s Brady claim certainly does not rely on a new rule
of constitutional law. His ineffective-assistance-of-trial-
counsel claims, however, rely on the Supreme Court’s
decision in Martinez, which held that, in some circumstances,
the ineffective assistance of state post-conviction relief
counsel can serve as cause to excuse the procedural default of
an ineffective-assistance-of-trial-counsel claim. 132 S. Ct. at
1315. To present his claims under this prong of the 28 U.S.C.
§ 2244(b)(2) test, Jones must show that Martinez set forth a
new, retroactively applicable rule of constitutional law that
was not previously available. While “there can be no dispute
that a decision announces a new rule if it expressly overrules
a prior decision,” Graham v. Collins, 506 U.S. 461, 467
(1993), Martinez did not expressly overrule any prior
decision, including Coleman. Rather, Martinez “qualifie[d]
Coleman by recognizing a narrow exception” to that case’s
rule that state post-conviction relief counsel’s ineffective
assistance cannot serve as cause to excuse the procedural
default of an ineffective-assistance-of-trial-counsel claim.
132 S. Ct. at 1315. Perhaps more importantly, the Supreme
Court characterized its decision in Martinez as an “equitable
ruling,” and not a “constitutional” one. Id. at 1319. That
spells the end of the new-rule exception for a second or
successive petition in Jones’s case because the rule of
Martinez, while new, is not a rule of constitutional law.
Further, we have consistently recognized that Martinez was
not a constitutional decision. See, e.g., Detrich v. Ryan, No.
08-99001, 2013 WL 4712729, at *3 (9th Cir. Sept. 3, 2013)
(en banc) (“[T]he Court established an equitable rule . . . .”);
Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.
2012) (published order) (“Martinez did not decide a new rule
of constitutional law . . . .”).
 JONES V. RYAN 31

Because Martinez did not decide a new rule of
constitutional law, it cannot underpin a second or successive
habeas corpus petition under 28 U.S.C. § 2244(b)(2)(A). See
Buenrostro, 697 F.3d at 1139 (“Martinez cannot form the
basis for an application for a second or successive motion
because it did not announce a new rule of constitutional
law.”). Other circuits have agreed. See, e.g., Hodges v.
Colson, 727 F.3d 517, 531 (6th Cir. 2013) (describing the
exception established in Martinez as an “equitable—as
opposed to constitutional—exception” (internal quotation
marks omitted)); Adams v. Thaler, 679 F.3d 312, 322 n.6 (5th
Cir. 2012) (“Martinez does not provide a basis for
authorization under § 2244(b)(2)(A), as the Court’s decision
was an ‘equitable ruling’ that did not establish ‘a new rule of
constitutional law.’” (quoting Martinez, 132 S. Ct. at 1319)).
Because Martinez was not a constitutional ruling, Jones’s
ineffective-assistance-of-trial-counsel claims presented here
cannot be said to “rel[y] on 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.
§ 2244(b)(2)(A).6

Congress, when it passed AEDPA, set forth a “stringent
standard for presenting a second or successive” 28 U.S.C.
§ 2254 habeas corpus petition. Washington, 653 F.3d at
1065. So while the Supreme Court used Martinez to establish
a new (equitable) rule regarding what may serve as cause to
excuse the procedural default of an ineffective-assistance-of-
trial-counsel claim, the suggestion that Martinez’s equitable

6
Having determined that Martinez did not set forth a new rule of
constitutional law, we need not, and do not, reach the question of whether
the Supreme Court has made its holding in Martinez retroactively
applicable to cases on collateral review.
32 JONES V. RYAN

holding modifies AEDPA’s statutory language is wrong and
flies in the face of normal juristic principles. Equity may
inform our interpretation of statutory language, but it cannot
supplant specific statutory standards or rewrite the statutory
text.

B

Because Jones cannot show that his claims rely on a new
rule of constitutional law, his only avenue for authorization
to file a second or successive petition is 28 U.S.C.
§ 2244(b)(2)(B), which requires him to “make a prima facie
showing to us that his claim (1) is based on newly discovered
evidence and (2) establishes that he is actually innocent of the
crimes alleged.” King v. Trujillo, 638 F.3d 726, 729–30 (9th
Cir. 2011) (per curiam) (noting that “[f]ew applications to file
second or successive petitions . . . survive these substantive
and procedural barriers” (alteration and ellipsis in original)
(internal quotation marks omitted)). Under this standard,
Jones must first demonstrate that the evidence he puts
forward now is newly discovered—in other words that it
“could not have been discovered previously through the
exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i).
And even if Jones could show that his evidence is newly
discovered, we would still be compelled to deny his
application unless that evidence “would be sufficient to
establish by clear and convincing evidence that . . . no
reasonable fact-finder would have found [Jones] guilty of the
underlying offense.” Bible, 651 F.3d at 1064 (quoting
28 U.S.C. § 2244(b)(2)(B)(ii)).

Jones’s claims fail on both prongs of this analysis. First,
Jones has offered no indication that the factual predicate for
his current claims could not have been discovered previously
 JONES V. RYAN 33

through the exercise of due diligence. The factual predicate
underlying each of Jones’s three ineffective-assistance-of-
trial-counsel claims, of course, occurred more than fifteen
years ago at Jones’s trial and sentencing. Moreover, the
nature of the evidence Jones now proffers was known to him
either at trial or sentencing and could have been raised then.
For example, trial counsel could have discovered the potential
problems associated with Nordstrom’s electronic monitoring
device at least as early as 1997 or 1998, when reports of such
devices’ failures made the news. Jones also gives no reason
why trial counsel could not have investigated Stephen Coats.
Jones has presented no evidence indicating that Coats refused
to talk to Jones’s investigator or his attorney, and no evidence
that Coats was unable to speak with the investigator. And
trial counsel’s failure to make an Eddings claim for the
alleged use of an unconstitutional causal nexus test was
known to Jones in 1998, at the time of his sentencing. Jones
has not explained why, with the exercise of due diligence, he
could not have discovered this evidence previously.

The factual predicate behind Jones’s Brady claim,
meanwhile, could also have been discovered years before the
filing of the current motion. Jones could have discovered as
early as 1997 that BI was aware of technical problems
associated with its device. Indeed, Jones proffers as evidence
of BI’s equipment problems news stories from 1997 and
1998; surely these accounts could have been discovered
through the exercise of due diligence long before August 21,
2013. Further, Jones’s parole supervisor, Rebecca Matthews,
testified at Jones’s trial that the monitoring device
occasionally generated “some static” or a “busy signal” when
activated by a call from the computer in Phoenix. Jones was
on notice in the late 1990s of the facts underlying his current
claims.
34 JONES V. RYAN

Even if Jones’s claims did rest on newly discovered
evidence, however, he would be unable to show that the facts
supporting those claims establish his actual innocence by
clear and convincing evidence. On this point, we are bound
by AEDPA’s requirements for presenting a second or
successive habeas corpus petition. Under these requirements,
the relevant question is not whether Jones’s jury would have
acquitted him, but whether “in light of the evidence as a
whole . . . no reasonable factfinder would have found [him]
guilty of the underlying offense[s].” 28 U.S.C.
§ 2244(b)(2)(B)(ii). Jones’s causal nexus claim is not at all
related to actual innocence, while his remaining two
ineffective-assistance-of-trial-counsel claims and his Brady
claim, even if the facts were true, would not establish by clear
and convincing evidence that Jones did not commit the
crimes for which he was sentenced to death.

This is so in large part due to the strength of the other
evidence against Jones. Included among this evidence were
bullets and shell casings found at the crime scenes and an
autopsy of the victims matching the calibers of the weapons
Jones and his accomplices carried; descriptions from
survivors of the Moon Smoke Shop robbery that matched
both Jones and his truck; testimony from two witnesses at
trial that their first thought upon seeing the police sketches of
the Moon Smoke Shop robbery suspects was that one of them
was Jones; testimony that Jones told multiple people who
asked if he was involved in the crimes, “[i]f I told you, I’d
have to kill you,” Jones, 691 F.3d at 1099 (alteration in
original); and testimony from David Evans. Evans testified
that Jones changed his appearance by cutting and dyeing his
hair and beard from red to black after the murders; that he
was told by Jones, “you don’t leave witnesses” after “giving
Jones a hard time about his similarity to the sketches”; and
 JONES V. RYAN 35

that Jones went to Phoenix twice in 1996, on one occasion
explaining his trip by saying he could not stay in Tucson
because “he thought some people would be looking for him
because he had killed somebody.” Considering the weight of
this other evidence, we conclude that Jones has failed to show
by clear and convincing evidence that no reasonable
factfinder would have found him guilty of the offenses for
which he was convicted, even if he could prove that the
evidence he puts forward now is true. See 28 U.S.C.
§ 2244(b)(2)(B)(ii).

C

“Section 2244(b)(2) applies not only to the underlying
conviction but also to the imposition of the death penalty.”
Pizzuto, 673 F.3d at 1010. Jones, to succeed, must establish
“by clear and convincing evidence that . . . no reasonable
factfinder would have found [him] guilty” of the aggravating
factors used to justify his death sentence. 28 U.S.C.
§ 2244(b)(2)(B)(ii). “A claim of actual innocence of the
death penalty would require a showing that one of the
statutory aggravators or other requirements for the imposition
of the death penalty had not been met.” Beaty v. Schriro,
554 F.3d 780, 784 (9th Cir. 2009) (published order).
Mitigating factors are not considered in this context. See
Sawyer v. Whitley, 505 U.S. 333, 345 (1992) (“If federal
habeas review of capital sentences is to be at all rational,
petitioner must show something more in order for a court to
reach the merits of his claims on a successive habeas petition
than he would have had to show to obtain relief on his first
habeas petition.”).

Under Arizona law at the time of Jones’s sentencing, the
sentencing judge was required to impose a sentence of death
36 JONES V. RYAN

if the judge found one or more of ten statutory aggravating
circumstances to have been established beyond a reasonable
doubt and that “there are no mitigating circumstances
sufficiently substantial to call for leniency.” Ariz. Rev. Stat.
§ 13-703 (1993). The trial court, Judge Leonardo, found the
existence of five statutory aggravating factors beyond a
reasonable doubt: (1) Jones had been convicted of another
offense for which, under Arizona law, a sentence of life
imprisonment or death could be imposed; (2) Jones was
previously convicted of a serious offense; (3) Jones
committed the offense in expectation of the receipt of
pecuniary value; (4) Jones committed the offense while on
authorized release from the state department of corrections;
and (5) Jones was convicted of one or more other homicides
committed during the commission of the offense. See id.;
Jones, 4 P.3d at 364–65.

At the very least, Jones cannot overcome the last of these
statutory aggravating factors—that he committed multiple
murders during the commission of the two robberies. As
discussed above, Jones has not shown by clear and
convincing evidence that he is actually innocent of any of the
murders for which he was convicted. It follows that he
cannot show that imposition of the death penalty is legally
unwarranted because any one of the aggravating factors was
individually enough to support his death sentence. See
Pizzuto, 673 F.3d at 1010.

We conclude that Jones has not presented a prima facie
showing that his application satisfies the requirements of
28 U.S.C. § 2244(b). “[T]he second or successive bar marks
the end point of litigation even where compelling new
evidence of a constitutional violation is discovered . . . . The
only prisoner who will not reach that point is the one who
 JONES V. RYAN 37

obtains new evidence that could clearly and convincingly
prove his innocence or who has the benefit of a new,
retroactive rule of constitutional law.” Buenrostro, 638 F.3d
at 726 (citation omitted). Jones is not that prisoner.

V

Death penalty cases are exceedingly difficult, testing the
skills of advocates and the judgment of judges to a degree not
found in more ordinary cases, because of the ultimate penalty
that the criminal defendant-appellant is at risk of paying. Cf.
Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“[T]he penalty
of death is different in kind from any other punishment
imposed under our system of criminal justice.”). In these
cases, we are fortunate to have the skilled advocacy of both
defense counsel and counsel for the State, arguing for their
respective sides of the appeal. We are also faced with a
complex legal system of sometimes-conflicting precedent and
with the heightened emotions that inevitably arise under these
cases. Still, even the pressures of death penalty litigation do
not permit us to depart from established jurisprudence, and
that is what we would do here if we allowed Jones to assert
new claims under the guise of a Rule 60(b) motion when such
claims should not be permitted unless they satisfy the
rigorous standard of 28 U.S.C. § 2244. Applying that
standard here, we conclude that Jones may not file a second
or successive habeas corpus petition in the district court.

In No. 13-16928, the district court’s dismissal of Jones’s
Rule 60(b) motion is AFFIRMED. In the alternative,
Jones’s motion to seek relief from judgment under Rule 60(b)
is DENIED. Pursuant to 28 U.S.C. § 2244(b)(3)(A), Jones’s
as-construed application in No. 13-16928 and his separate
38 JONES V. RYAN

application in No. 13-73647 to file a second or successive
habeas corpus petition in the district court are DENIED.

Each party shall bear its own costs.