FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-16185
Plaintiff-Appellee, D.C. No.
v. 2:95-CR-00504-
JOSE LUIS BUENROSTRO, WBS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
October 5, 2010—San Francisco, California
Filed March 23, 2011
Before: Susan P. Graber and Andrew J. Kleinfeld,
Circuit Judges, and Donald W. Molloy,* District Judge.
Per Curiam Opinion
*Donald W. Molloy, United States District Judge for the District of
Montana, sitting by designation.
3921
3924 UNITED STATES v. BUENROSTRO
COUNSEL
Walter K. Pyle, Berkeley, California, for the movant-
appellant.
Matthew D. Segal, Assistant United States Attorney, Sacra-
mento, California, for the respondent-appellee.
OPINION
PER CURIAM:
Appellant Jose Luis Buenrostro was tried and convicted on
a charge of conspiracy to manufacture methamphetamine. The
offense involved more than thirty-one kilograms of metham-
phetamine. Because Buenrostro had two prior felony drug
convictions, the court sentenced him to a mandatory mini-
mum term of life imprisonment without release. 21 U.S.C.
§§ 846, 851(d)(1), 841(a)(1), (b)(1)(A)(viii) (1995). We
affirmed Buenrostro’s conviction on direct appeal. He then
UNITED STATES v. BUENROSTRO 3925
moved the district court to vacate his sentence under 28
U.S.C. § 2255. The district court denied that motion on its
merits.
After the district court concluded Buenrostro’s § 2255 pro-
ceeding, Buenrostro moved the district court to reopen it
under Federal Rule of Civil Procedure 60(b) due to a newly
discovered ineffective assistance of counsel claim. According
to Buenrostro, his lawyer had received a generous plea offer
five months before his trial but never told Buenrostro about
it. Had Buenrostro accepted that offer, his maximum sentenc-
ing exposure would have been fourteen years. But, because
(he alleges) Buenrostro’s lawyer did not realize that Buen-
rostro faced the possibility of a life sentence, the lawyer
rejected the offer without giving it to Buenrostro. Buenrostro
asked the district court to set aside its denial of his original
§ 2255 motion and to hold an evidentiary hearing on his new
claim.
The government moved to dismiss Buenrostro’s motion as,
in substance, an unauthorized second or successive § 2255
motion. 28 U.S.C. §§ 2255(h), 2244(b)(3)(A) (2007). The dis-
trict court agreed with the government and dismissed Buen-
rostro’s motion for lack of jurisdiction. Burton v. Stewart, 549
U.S. 147, 149 (2007) (per curiam). It also granted a certificate
of appealability.
We have jurisdiction pursuant to 28 U.S.C. § 2253(a).
Reviewing de novo, United States v. Lopez, 577 F.3d 1053,
1059 (9th Cir. 2009), we affirm.
Legal Analysis
The plain text of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) precludes Buenrostro from
filing a “second or successive” § 2255 motion unless he can
show either that he relies on a new rule of constitutional law,
§ 2255(h)(2), or “that no reasonable factfinder would have
3926 UNITED STATES v. BUENROSTRO
found [him] guilty of the offense,” § 2255(h)(1). Buenrostro
concedes that he cannot meet either of those standards. Con-
sequently, his appeal presents two different questions. First, is
Buenrostro entitled to reopen his original § 2255 proceeding
under Federal Rule of Civil Procedure 60(b)? And, if not,
does § 2255(h) allow him to file a second-in-time motion on
his newly discovered claim even though it does not rely on a
new rule of constitutional law or prove his innocence?
A. Rule 60(b)
[1] In Gonzalez v. Crosby, 545 U.S. 524, 531 (2005), the
Supreme Court held that 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. Because § 2254 is nearly identical to § 2255 in sub-
stance, the Sixth, Seventh, and Tenth Circuits have applied
Gonzalez to Rule 60(b) motions to reopen § 2255 proceed-
ings. Curry v. United States, 507 F.3d 603, 604-05 (7th Cir.
2007); Nailor v. United States (In re Nailor), 487 F.3d 1018,
1021-23 (6th Cir. 2007); United States v. Nelson, 465 F.3d
1145, 1147 (10th Cir. 2006). We agree with our sister circuits
and hold that Gonzalez applies to such motions.
[2] Applying Gonzalez here, we must treat Buenrostro’s
Rule 60(b) motion as another § 2255 motion if it contains a
“claim.” 545 U.S. at 530. Gonzalez defines “claim” in various
ways, including “a new ground for relief.” Id. at 532. Section
2255(a) prescribes the grounds for relief available to a § 2255
movant. We begin, therefore, by looking to see whether Buen-
rostro seeks to reopen his § 2255 proceedings based on a new
ground for relief specified in § 2255(a).1 We see that he does.
1
Section 2255(a) provides:
A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the Consti-
UNITED STATES v. BUENROSTRO 3927
Buenrostro “claim[ed] the right to be released upon the
ground,” as § 2255(a) says, “that the sentence was imposed in
violation of the Constitution,” specifically, his Sixth Amend-
ment right to the effective assistance of counsel. Under Gon-
zalez, we must treat Buenrostro’s motion as a § 2255 motion.
[3] Gonzalez recognized that a “defect in the integrity of
the federal habeas proceedings,” such as “fraud on the habeas
court,” might justify reopening § 2255 proceedings under
Rule 60(b). 545 U.S. at 532 & n.5. Buenrostro argues that his
Rule 60(b) motion demonstrates such a defect, and that his is
the rare case, id. at 535, in which extraordinary circum-
stances, Fed. R. Civ. P. 60(b)(6), justify reopening the final
order denying his § 2255 motion. He says that he did not
know, and had no reason to inquire, during the course of his
§ 2255 litigation, whether counsel received but did not relay
a viable plea offer.
[4] Buenrostro misunderstands the meaning of Gonzalez.
To show a defect in the integrity of his first § 2255 proceed-
ing, Buenrostro must point to something that happened during
that proceeding that rendered its outcome suspect. We have
explained that “[f]raud on the court must involve an uncon-
scionable plan or scheme which is designed to improperly
influence the court in its decision.” Abatti v. Comm’r, 859
F.2d 115, 118 (9th Cir. 1988) (internal quotation marks omit-
ted).
[5] We see no such plan or scheme at work in Buenrostro’s
first § 2255 proceeding that could warrant relief under Rule
60(b). In his first § 2255 motion, Buenrostro claimed ineffec-
tution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed the sen-
tence to vacate, set aside or correct the sentence.
3928 UNITED STATES v. BUENROSTRO
tive assistance of counsel based on his trial lawyer’s failure to
object to the admission of evidence of Buenrostro’s prior fel-
ony convictions, his lawyer’s refusal to call Buenrostro to tes-
tify, and his lawyer’s incorrect advice about the consequences
of not testifying. The district court examined those claims on
their merits. The court determined that the lawyer’s assistance
was deficient but that Buenrostro could not demonstrate prej-
udice from any of his lawyer’s errors. Nothing about that pro-
ceeding suggests that “the judicial machinery [did] not
perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication.” Gumport v. China
Int’l Trust & Inv. Corp. (In re Intermagnetics Am., Inc.), 926
F.2d 912, 916 (9th Cir. 1991) (defining “fraud upon the
court”). That Buenrostro did not raise in his first § 2255 pro-
ceeding the claim he wants to raise here does not render the
adjudication of the claims that he did raise suspect.
[6] Because Buenrostro wants to bring a new claim for
relief, wholly independent of the claims adjudicated in his
first § 2255 proceeding, his Rule 60(b) motion must be treated
as a § 2255 motion. We therefore must decide whether
AEDPA allows him to file a second § 2255 motion.
B. Second-in-Time Motions Under AEDPA
Buenrostro’s motion is a § 2255 motion, not a Rule 60(b)
motion. To file it, Buenrostro needs our permission. 28 U.S.C.
§ 2255(h). We turn, therefore, to whether § 2255(h) allows us
to certify his motion.
[7] Section 2255(h) provides:
A second or successive motion must be certified
. . . by a panel of the appropriate court of appeals to
contain—
(1) newly discovered evidence that, if
proven and viewed in light of the evi-
UNITED STATES v. BUENROSTRO 3929
dence as a whole, would be sufficient
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.
The plain text of § 2255(h) clearly prevents Buenrostro
from filing this motion. His new claim neither bears on his
innocence of the underlying crime nor turns on a new rule of
constitutional law. If we interpret § 2255(h) according to its
plain meaning, we could not allow Buenrostro’s new motion
to go forward.
Although the Supreme Court has not decided a post-
AEDPA case concerning the meaning of “second or succes-
sive” under § 2255(h) and Congress did not define that term,
Buenrostro relies on the Supreme Court’s decisions under
§ 2244(b)(2) to advocate for an exception in his case. Section
2244(b)(2) resembles § 2255(h).2 It limits state prisoners from
2
Section 2244(b)(2) provides:
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—
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on col-
lateral review by the Supreme Court, that was previ-
ously 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
3930 UNITED STATES v. BUENROSTRO
bringing newly discovered claims in a second or successive
federal habeas corpus application unless such claims either
clearly and convincingly prove the prisoner’s innocence or
rely on a new rule of constitutional law. We assume, without
deciding, that the Court’s interpretation of “second or succes-
sive” for purposes of § 2244(b)(2) applies to § 2255(h). Even
if it does, we cannot certify Buenrostro’s motion.
[8] In Magwood v. Patterson, ___ U.S. ___, 130 S. Ct.
2788, 2799 (2010), seven justices agreed that “second or suc-
cessive” is “a habeas ‘term of art’ ” that “incorporates the pre-
AEDPA abuse-of-the-writ doctrine.” Id. at 2804 (Kennedy, J.,
dissenting); id. at 2797 (majority op.); see also id. at 2804
(Kennedy, J, dissenting) (explaining that, under the abuse-of-
the-writ doctrine, a petitioner abused the writ by “raising a
claim in a subsequent petition that he could have raised in the
first, regardless of whether the failure to raise it earlier
stemmed from a deliberate choice” (internal quotation marks
omitted)). That statement reaffirms every federal appellate
court’s repeated recognition that the term “second or succes-
sive” is not to be taken literally but is “informed by” the
abuse-of-the-writ doctrine. United States v. Lopez, 577 F.3d
1053, 1063 n.8 (9th Cir. 2009), cert. denied, 130 S. Ct. 1718
(2010).
Buenrostro urges us to eschew the literal interpretation of
§ 2255(h) and to apply the abuse-of-the-writ doctrine here. He
relies principally on two Supreme Court cases that examined
second-in-time federal habeas applications raising claims that
had not ripened for adjudication at the time the first petition
was litigated. Panetti v. Quarterman, 551 U.S. 930, 947
in light of the evidence as a whole, would be suffi-
cient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable fact-
finder would have found the applicant guilty of the
underlying offense.
UNITED STATES v. BUENROSTRO 3931
(2007) (involving claims under Ford v. Wainwright, 477 U.S.
399 (1986) (holding that an incompetent person may not be
executed)); Stewart v. Martinez-Villareal, 523 U.S. 637
(1998) (same). In Martinez-Villareal, 523 U.S. at 644-45, the
petitioner presented a Ford claim in his first federal habeas
petition, which the court dismissed as unripe. The rest of his
claims were adjudicated. When the petitioner sought to refile
his Ford claim after his execution date was set, the Court said
it could not be “second or successive,” because “[t]here was
only one application for habeas relief, and the District Court
ruled (or should have ruled) on each claim at the time it
became ripe.” 523 U.S. at 643.
In Panetti, 551 U.S. at 937, the petitioner filed a federal
habeas petition challenging his conviction but did not state a
Ford claim. The district court denied his petition on its merits.
Id. After the state scheduled his execution date, the petitioner
filed a second habeas petition alleging, for the first time, that
he was incompetent to be executed. Id. at 938. The Supreme
Court granted certiorari to decide whether that petition consti-
tuted an improper “second or successive” habeas application
under § 2244(b). Id.
The Court held that the petition was not “second or succes-
sive” within the meaning of § 2244(b) because “Congress did
not intend the provisions of AEDPA addressing ‘second or
successive’ petitions to govern a filing in the unusual posture
presented here: a § 2254 application raising a Ford-based
incompetency claim filed as soon as that claim is ripe.” Id. at
945. The Court looked at the purposes underlying AEDPA
and reasoned that “[a]n empty formality requiring prisoners to
file unripe Ford claims neither respects the limited legal
resources available to the States nor encourages the exhaus-
tion of state remedies.” Id. at 946. Accordingly, the Court
declined to construe AEDPA, which Congress “implemented
to further the principles of comity, finality, and federalism, in
a manner that would require unripe (and, often, factually
3932 UNITED STATES v. BUENROSTRO
unsupported) claims to be raised as a mere formality, to the
benefit of no party.” Id. at 947.
Martinez and Panetti do not apply only to Ford claims.
Prisoners may file second-in-time petitions based on events
that do not occur until a first petition is concluded. A prisoner
whose conviction and sentence were tested long ago may still
file petitions relating to denial of parole, revocation of a sus-
pended sentence, and the like because such claims were not
ripe for adjudication at the conclusion of the prisoner’s first
federal habeas proceeding. Hill v. Alaska, 297 F.3d 895, 898-
99 (9th Cir. 2002), cited in Magwood, 130 S. Ct. at 2805; see
also Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005);
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003);
James v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002); Crouch v.
Norris, 251 F.3d 720, 725 (8th Cir. 2001); In re Cain, 137
F.3d 234, 235 (5th Cir. 1998) (order); Walker v. Roth, 133
F.3d 454, 455 (7th Cir. 1997) (per curiam).
Buenrostro asks us to broaden the rule announced in
Martinez-Villareal and Panetti so that it permits claims that
were ripe at the conclusion of a first § 2255 proceeding but
were not discovered until afterward. Buenrostro relies heavily
on our opinion in Lopez to support his view that § 2255(h)
allows us to certify such claims. In Lopez, 577 F.3d at 1062-
66, we examined Panetti to decide whether § 2255(h) barred
a second-in-time § 2255 motion based on a newly discovered
Brady3 claim. We acknowledged that Panetti’s reasoning does
not necessarily confine its reach solely to Ford claims. Id. at
1063. And we understood that Panetti cautioned us not to
interpret AEDPA “in a way that would foreclose any federal
review of a constitutional claim . . . absent a clear indication
that Congress intended that result.” Id.
3
Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[S]uppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
UNITED STATES v. BUENROSTRO 3933
We recognized, however, two reasons to think that Con-
gress clearly intended to foreclose review of some constitu-
tional claims discovered after the completion of a prisoner’s
§ 2255 proceeding. First, “§ 2255(h)(1) contains an express
statutory standard for dealing with ‘second or successive’
claims based on ‘newly discovered evidence.’ ” Id. at 1065.
Second, even a literal reading § 2255(h) does not bar all
newly discovered, second-in-time Brady claims. Section
2255(h)(1) allows us to certify such claims when they prove
by clear and convincing evidence a prisoner’s innocence. Id.
In the end, we did not decide whether § 2255(h) barred the
movant’s newly discovered Brady claim because he could not
establish prejudice even under the abuse-of-the-writ doctrine.
Id. at 1066.
[9] Buenrostro’s ineffective assistance of counsel claim
does not suffer from the same infirmity as the Brady claim in
Lopez. We do not doubt that, under the abuse-of-the-writ doc-
trine, the federal courts could adjudicate his claim. But we
think that the words of § 2255(h) indicate Congress’ clear
intent to prohibit us from certifying second-in-time claims,
ripe at the time of a prisoner’s first § 2255 proceeding but not
discovered until afterward, unless such claims either rely on
a new, retroactive rule of constitutional law or clearly and
convincingly prove the prisoner’s innocence.
[10] As we said in Lopez, AEDPA “codif[ied] the judi-
cially established principles reflected in the abuse-of-the-writ
doctrine and further restrict[ed] the availability of relief to
habeas petitioners.” Id. at 1060-61 (emphasis added). Buen-
rostro had a ripe ineffective assistance of counsel claim that
he could have brought in his first § 2255 motion. He says that
he had no reason to know he could bring such a claim, but
that is not determinative to his right to relief. His second
§ 2255 motion is “second or successive.” As a “modified res
judicata rule,” Felker v. Turpin, 518 U.S. 651, 664 (1996), the
second or successive bar marks the end point of litigation
even where compelling new evidence of a constitutional vio-
3934 UNITED STATES v. BUENROSTRO
lation is discovered, § 2255(h)(1). The only prisoner who will
not reach that point is the one who 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 is not that prisoner. His motion is barred.
AFFIRMED.