UNITED STATES v. WISE (2020)

MEMORANDUM ***

William Wise pleaded guilty pursuant to a plea agreement to various federal charges and was sentenced to 262 months imprisonment. He then filed a 28 U.S.C. § 2255 motion, asserting that the government had breached the plea agreement by failing to make a U.S.S.G. § 5K1.1 motion supporting a reduced sentence in exchange for his cooperation. The district court denied the motion and we affirmed. United States v. Wise, 740 F. App'x 558 (9th Cir. 2018).

Wise then filed a Federal Rule of Civil Procedure 60(b) motion in the district court for relief from the judgment, arguing the district court ignored Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in rejecting the § 2255 motion. The district court deemed the Rule 60(b) motion a second or successive petition under 28 U.S.C. § 2244(b) and denied it for lack of jurisdiction. Wise filed a notice of appeal, and this Court remanded to the district court for the limited purpose of granting or denying a certificate of appealability (“COA”). The district court granted a COA, and this appeal followed.

1. The district court correctly held that Wise's Rule 60(b) motion was a second or successive habeas petition because it challenged the district court's initial resolution of his petition “on the merits.” See Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A second or successive petition can be filed in the district court only upon permission of the court of appeals. See 28 U.S.C. § 2244(b)(3). Wise never sought or obtained such permission. The district court therefore correctly denied his motion. See Burton v. Stewart, 549 U.S. 147, 151–52, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam) (stating that failure to obtain authorization to file a second or successive petition is a jurisdictional bar).

2. Construing this appeal as an application for permission to file a second or successive § 2255 motion, we deny it. A second or successive motion can be approved for filing only when it contains “newly discovered evidence” or invokes a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(1)-(2). Wise's Rule 60(b) motion simply repeats arguments made in his § 2255 motion and rejected in our prior disposition, and he has not made a prima facie showing under § 2255(h).

AFFIRMED; APPLICATION TO FILE A SECOND OR SUCCESSIVE PETITION DENIED.