STEPHEN M. McNAMEE, District Judge.
Before the Court is Petitioner's motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure or in the alternative petition for writ of habeas corpus. (Doc. 237.) The motion asserts that the Supreme Court's recent decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), provides a proper ground for this Court to reopen Petitioner's federal habeas proceeding. Respondents oppose the motion. (Doc. 246.) For the reasons that follow, the motion is denied.
This case derives from the 1986 murder of 59-year-old Estafana Holmes in her Phoenix apartment. Police found the victim's partially nude body after conducting a "check welfare" call. She had been blindfolded with her pajama pants, and her mouth was stuffed with a scarf. The apartment was blood-spattered and in disarray with broken and displaced furnishings. The victim's throat had been sliced, and she had been stabbed more than twenty times in her left breast, upper chest, and lower abdomen. Seminal fluid was found in both her vagina and anus.
Petitioner was seen in the neighborhood the night before the crime as well as in the early morning after the murder, looking wet as if he had just bathed. While under questioning several days later about an unrelated matter, Petitioner asked about a woman who had been stabbed and had her throat slashed. Information that the victim's throat had been cut had never been publically released. Petitioner's fingerprints matched prints found in the victim's apartment, and his bodily fluids were consistent with those obtained from her body.
In 1987, a jury convicted Petitioner of first degree murder, sexual assault, kidnapping, and burglary. The trial court sentenced him to death for the murder after finding the existence of two aggravating factors: a prior felony conviction "involving the use or threat of violence on another person," Ariz. Rev. Stat. § 13-703(F)(2) (1992) (transferred and renumbered to § 13-751), and commission of the offense in an especially heinous, cruel, or depraved manner, id. § 13-703(F)(6) (1992). On direct appeal, the Arizona Supreme Court affirmed the convictions but vacated the "prior felony conviction" aggravating factor and remanded for resentencing on the murder count. State v. Lopez, 163 Ariz. 108, 116, 786 P.2d 959, 967 (1990).
Resentencing took place in 1990. The trial court again sentenced Petitioner to death, finding that the murder was committed in an especially cruel, heinous, or depraved manner and that no mitigating circumstances were sufficient to warrant leniency. On appeal, the Arizona Supreme Court affirmed. State v. Lopez, 175 Ariz. 407, 857 P.2d 1261 (1993). With regard to mitigation, the court found inter alia that Petitioner had failed to prove that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired at the time of the offense as a result of intoxication, see Ariz. Rev. Stat. § 13-703(G)(1) (1992) (transferred and renumbered to § 13-751), or that he suffered from a condition known as "pathological intoxication."
Petitioner then sought state postconviction relief ("PCR") under Rule 32 of the Arizona Rules of Criminal Procedure. Among other claims in his PCR petition, Petitioner asserted that trial counsel had been ineffective in failing to provide his "pathological intoxication" expert with pretrial statements and testimony of two witnesses who had observed Petitioner's actions and behavior a few hours before the murder. The trial court dismissed the petition without a hearing. With regard to the counsel ineffectiveness claims, the court found that Petitioner had failed to show "counsel's performance fell below prevailing professional norms" or a "reasonable probability that the result of the trial or sentencing procedures would have been different." The Arizona Supreme Court summarily denied a discretionary petition for review.
Petitioner filed a petition seeking federal habeas relief in 1998. After initial briefing limited to procedural default issues, the Court dismissed a number of Petitioner's claims as procedurally barred, premature, or plainly meritless. (Docs. 92, 160). In their answer regarding the procedural status of Petitioner's claims, Respondents conceded that Petitioner had properly exhausted his ineffectiveness claims (Doc. 37 at 12), and therefore the Court ordered merits briefing on these claims (Doc. 160 at 7, 22). However, after Petitioner filed his merits brief, Respondents asserted for the first time that Petitioner had fundamentally altered one of the exhausted sentencing ineffectiveness claims and that this expanded habeas claim was procedurally barred from federal review. (Doc. 196 at 12-14.) In reply, Petitioner argued that "the claim is the same as that pleaded in state court: trial counsel rendered ineffective assistance when he failed to provide his expert the relevant information he needed to render a reliable opinion when he testified." (Doc. 199 at 21.) Petitioner did not, as an alternative argument, raise any grounds of cause and prejudice or miscarriage of justice to overcome the alleged default.
In a subsequent ruling, the Court determined that it had authority to address the newly-raised procedural default allegation and found that the expanded ineffectiveness claim had not been properly exhausted in state court and was procedurally defaulted. (Doc. 200 at 9-10 & n.7, 13-15.) Although Petitioner had not asserted cause and prejudice or miscarriage-of-justice grounds to excuse the alleged default, the Court sua sponte considered hypothetical arguments, including ineffectiveness by postconviction counsel in failing to fairly present the broadened claim in the state PCR petition. (Id. at 15 n.8.) Pursuant to then existing law, the Court determined that any failure by PCR counsel to raise the claim could not constitute cause. (Id.) Recognizing that the issue was adequate to proceed on appeal, the Court issued a certificate of appealability on the question of whether Petitioner's expanded sentencing ineffectiveness claim was procedurally barred.
On appeal, the Court of Appeals for the Ninth Circuit declined to reach the procedural default issue and affirmed on an alternate ground. The court found that Petitioner was "independently barred from seeking relief through his expanded allegations of ineffective assistance of counsel because he did not develop the factual basis for this claim in state court. See 28 U.S.C. § 2254(e)(2)." Lopez v. Ryan, 630 F.3d 1198, 1201 (9th Cir.), cert. denied, 132 S.Ct. 577 (2011).
On March 20, 2012, the Supreme Court decided in Martinez v. Ryan that in order to "protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman [v. Thompson, 501 U.S. 722 (1991),] that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." 132 S. Ct. at 1315. Consequently, the Court held that in states like Arizona, which require ineffective-assistance-of-trial-counsel claims to be raised in an initial-review collateral proceeding, failure of counsel in an initial-review collateral proceeding to raise a substantial trial ineffectiveness claim may provide cause to excuse the procedural default of such a claim. Id.
On April 9, 2012, Petitioner filed the instant motion, arguing that Martinez represents a "watershed change in procedural law" that when applied to this case demonstrates that he has cause to overcome the finding of procedural default regarding his expanded sentencing ineffectiveness claim. (Doc. 237 at 4.) He seeks relief under Rule 60(b)(6) to reopen these proceedings so he can demonstrate that postconviction counsel's ineffectiveness constitutes cause and to establish entitlement to federal habeas relief based on sentencing counsel's alleged ineffectiveness. In a footnote in his reply brief, Petitioner asserts for the first time that relief also should be granted under Rule 60(b)(5). (Doc. 248 at 12 n.7.)
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). A motion under subsection (b)(6) must be brought "within a reasonable time," Fed. R. Civ. P. 60(c)(1), and requires a showing of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth in 28 U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court explained that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits." Id. at 532. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at n.4. The Court further explained that a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely 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.
Petitioner asserts that the latter situation applies here because the Court found his expanded ineffectiveness claim to be procedurally defaulted and did not address the claim "on the merits." (Doc. 237 at 9.) Petitioner is correct that under Gonzalez a district court has jurisdiction to consider a Rule 60(b) motion challenging a procedural default ruling. However, in this case, the Court is bound by the decision of the Ninth Circuit, which did not reach the procedural default issue and instead found that Petitioner was not entitled to habeas relief because § 2254(e)(2) precluded consideration of new evidence not presented in state court.
Whether the appellate court's § 2254(e)(2) analysis is akin to a merits ruling appears to be an open question. Assuming the court impliedly found the claim to be meritless based on a lack of supporting evidence, such ruling is now law of the case. See Pepper v. United States, 131 S.Ct. 1229, 1250 (2011) ("[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.") (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). If so, this Court must dismiss the instant motion because it constitutes a successive habeas petition seeking to re-raise a claim presented in a prior petition and denied on the merits. See 28 U.S.C. § 2244(b)(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."); Gonzalez, 545 U.S. at 530. Alternatively, even if the Court construes the Ninth Circuit's ruling as procedural and not on the merits, Petitioner's motion fails because, as discussed in Section II below, Martinez does not constitute extraordinary circumstances sufficient to reopen judgment in this case.
As a separate matter, before undertaking its alternative analysis of Petitioner's motion, the Court must address the scope of Petitioner's sentencing ineffectiveness claim. In a footnote within the instant motion, Petitioner asserts that he seeks "review of Claim 1C as presented in the previous proceedings in this Court." (Doc. 237 at 7 n.1.) However, the body of the motion suggests that he is trying to pursue a different claim than that presented in either state court or his habeas petition. Specifically, Petitioner asserts that counsel was ineffective for failing to conduct a meaningful investigation into Petitioner's social history and to present evidence of Petitioner's "tragic life" as mitigation to the sentencing judge.
In his habeas petition, Petitioner framed Claim 1C as follows:
(Doc. 27 at 11-13.)
In its order finding procedural default, the Court determined that Claim 1C was substantially broader than the claim presented in state court:
(Doc. 200 at 13-14.)
The Ninth Circuit similarly found that Claim 1C was broader than the claim raised in state court. "Coupled with his claim regarding the two witnesses, Lopez newly alleged that counsel failed to furnish Dr. Bendheim with a broad range of biographical data and family and social history that were necessary for a proper diagnosis." Lopez, 630 F.3d at 1204. In finding that Petitioner was barred from relief under 28 U.S.C. § 2254(e)(2), the Court noted that Petitioner had not been diligent in developing his claim that counsel was ineffective in "failing to investigate Lopez's personal history and to furnish Dr. Bendheim with those facts." Id. at 1206.
Neither this Court nor the Ninth Circuit construed Petitioner's expanded habeas claim as asserting ineffectiveness based on a general failure to investigate Petitioner's background and to present such evidence as stand-alone mitigation to the sentencer. Rather, both courts found that Petitioner's claim, although broader than the claim presented in state court, was limited to a failure to investigate and provide background information to Petitioner's psychiatric expert.
To recap, this Court found procedurally barred Petitioner's claim of ineffectiveness based on counsel's failure to investigate and provide to Dr. Bendheim information concerning Petitioner's personal history. The Court did not rule "on the merits" of this claim and instead limited its merits analysis to counsel's failure to provide Dr. Bendheim with the statements and testimony of Rodriguez and Sabori. Assuming the Ninth Circuit also did not resolve Petitioner's expanded claim "on the merits," this Court has jurisdiction to consider Petitioner's Rule 60(b) motion, free of the constraints imposed by 28 U.S.C. § 2244(b) upon successive petitions, only to the extent Petitioner seeks to reopen judgment to revisit the procedurally barred aspect of Claim 1C. See Ruiz v. Quarterman, 504 F.3d 523, 526 (5th Cir. 2007) (finding § 2244(b) inapplicable where Rule 60(b) motion sought to reopen judgment on procedurally barred claim).
To the extent Petitioner seeks relief under Rule 60(b) to assert generally that counsel's representation at resentencing was ineffective because he failed to investigate and present to the sentencing judge evidence of Petitioner's background and upbringing (separate from presenting such evidence to Dr. Bendheim to aid diagnosis of Petitioner), the Court finds that the motion advances a new ground for relief. As such, this aspect of Petitioner's motion is the equivalent of a second or successive petition, and the Court may not consider Petitioner's general claim of ineffectiveness based on counsel's "failure to present mitigating evidence supporting a sentence less than death" absent authorization from the Ninth Circuit. See 28 U.S.C. § 2244(b)(3)(A).
The Court turns now to the issue of whether in this case Martinez constitutes an extraordinary circumstance justifying relief under Rule 60(b)(6) to reconsider the Court's procedural bar ruling as to the expanded aspect of Claim 1C. When a petitioner seeks post-judgment relief based on an intervening change in the law, the Ninth Circuit has directed district courts to balance numerous factors on a case-by-case basis. Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009). These include but are not limited to: (1) whether "the intervening change in the law . . . overruled an otherwise settled legal precedent;" (2) whether the petitioner was diligent in pursuing the issue; (3) whether "the final judgment being challenged has caused one or more of the parties to change his position in reliance on that judgment;" (4) whether there is "delay between the finality of the judgment and the motion for Rule 60(b)(6) relief;" (5) whether there is a "close connection" between the original and intervening decisions at issue in the Rule 60(b) motion; and (6) whether relief from judgment would upset the "delicate principles of comity governing the interaction between coordinate sovereign judicial systems." Id. at 1135-40. After consideration of these varied factors, the Court determines that the balance weighs against granting post-judgment relief.
The first factor is whether the intervening change in the law overruled otherwise settled legal precedent. The decisions in Gonzalez v. Crosby and Phelps v. Alameida lend guidance for applying this factor.
In Gonzalez, the prisoner's habeas petition was dismissed as time barred when the district court concluded that an untimely successive motion for state postconviction relief was not a "properly filed" application sufficient to toll the limitations period under 28 U.S.C. § 2244(d)(2). 545 U.S. at 527. Seven months after the appellate court denied a certificate of appealability on the issue, the Supreme Court held in Artuz v. Bennett, 531 U.S. 4 (2000), that an application for state postconviction relief can be "properly filed" even if the state court dismissed it as procedurally barred. Gonzalez sought to reopen judgment, and the Supreme Court ultimately determined that Artuz did not constitute an extraordinary circumstance justifying relief under Rule 60(b)(6). In doing so, it noted that the district court's analysis of the limitations period "was by all appearances correct under the Eleventh Circuit's then-prevailing interpretation of 28 U.S.C. § 2244(d)(2)." 545 U.S. at 536. The Court further observed that "[i]t is hardly extraordinary that subsequently, after petitioner's case was no longer pending, this Court arrived at a different interpretation." Id.
In Phelps, the Ninth Circuit determined that a habeas petitioner was entitled to relief from judgment based on an intervening change in circuit law relevant to determining finality of a California postconviction petition for the purpose of tolling the limitations period under § 2244(d)(2). In doing so, the court observed that "the change in the law worked in this case. . . did not upset or overturn a settled legal principle" as did the change in the law at issue in Gonzalez. 569 F.3d at 1136. Rather, the core disputed issue in Phelps's case did not become settled until fifteen months after his appeal became final and was "decidedly unsettled" when the petition was before the district court. Id. This, the court reasoned, distinguished Gonzalez and cut in favor of granting relief.
Comparing these two cases to the situation here, the Court readily concludes that Petitioner's case is more akin to Gonzalez than Phelps. As in Gonzalez, the procedural bar ruling now being challenged was correct under then-prevailing law. As Petitioner acknowledges, Martinez represents a significant shift in habeas procedural law. Prior to Martinez, both Supreme Court and Ninth Circuit caselaw held that an attorney's ignorance or inadvertence in a state postconviction proceeding did not qualify as cause to excuse a procedural default. See Coleman, 501 U.S. at 736; Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996). In Martinez, the Court carved out a narrow exception to the rule in Coleman, recognizing for the first time that inadequate postconviction counsel may serve as cause to excuse a defaulted trial ineffectiveness claim when such claims may be raised only in a postconviction proceeding. 132 S. Ct. at 1315. Thus, the law was well settled that ineffective assistance of postconviction counsel could not serve as cause when this Court sua sponte considered and rejected hypothetical cause arguments for the default of expanded Claim 1C, including ineffectiveness by postconviction counsel. This factor weighs against reconsideration. See Adams v. Thaler, No. 12-70010, 2012 WL 1415088 (5th Cir. Apr. 25, 2012) (finding that Martinez is "simply a change in decisional law" and does not constitute an extraordinary circumstance justifying postconviction relief).
The second factor, whether Petitioner was diligent in pursuing the issue, also weighs against reconsideration. This is not a case, such as Phelps, where the petitioner "pressed all possible avenues of relief" on the identical legal position ultimately adopted in a subsequent case as legally correct. 569 F.3d at 1137. Indeed, at no time prior to the instant motion did Petitioner urge ineffective assistance of postconviction counsel as cause to excuse the default of his expanded sentencing ineffectiveness claim.
In his initial response to Respondents' belated assertion of default, Petitioner argued only that the claim had been fully exhausted and was not substantially altered compared to that presented in state court. (Doc. 199 at 13-23.) In a motion for reconsideration from the Court's order finding the expanded aspect of Claim 1C defaulted, Petitioner argued that the Court had erred in not finding that Respondents' admission of exhaustion in their initial answer constituted an express waiver of any exhaustion defense. (Doc. 202 at 2-11.) On appeal, Petitioner again argued that the claim had been fully exhausted and that this Court erred in sua sponte revisiting the exhaustion issue following Respondents' initial concession. Lopez, 630 F.3d at 1205 & n.6. Petitioner did not assert to either this Court or the Ninth Circuit any alternative arguments based on cause and prejudice or fundamental miscarriage of justice to excuse the default.
In Gonzalez, the Supreme Court cited the petitioner's lack of diligence as a second factor militating against Rule 60(b)(6) relief. The Court observed that the petitioner had neither raised the issue addressed in Artuz in his application for a certificate of appealability before the circuit court, nor sought rehearing or certiorari from the appellate court's COA denial, despite the fact Artuz had been decided eight days after that denial. 545 U.S. at 537. "This lack of diligence confirms that Artuz is not an extraordinary circumstance justifying relief from the judgment in petitioner's case." Id.
Here, not only did Petitioner fail to advance the legal principle at issue in Martinez, he never challenged this Court's finding that ineffectiveness of postconviction counsel could not constitute cause for the default of the expanded sentencing ineffectiveness claim. This lack of diligence cuts against Petitioner.
The third factor is whether granting relief under Rule 60(b) would "`undo the past, executed effects of the judgment,' thereby disturbing the parties' reliance interest in the finality of the case." Phelps, 569 F.3d at 1137 (quoting Ritter v. Smith, 811 F.2d 1398, 1402 (11th Cir. 1987)). Post-judgment relief "is less warranted when the final judgment being challenged has caused one or more of the parties to change his legal position in reliance on that judgment." Id. at 1138.
In Phelps, the court found that neither party had relied on the finality of the district court's dismissal of the petition as time-barred such that their legal position had changed due to the court's judgment. "To the contrary, when Phelps' petition was dismissed, his federal case simply ended: Phelps remained in prison, and the State stopped defending his imprisonment." Id. The court reasoned that there were no "past effects" of the judgment that would be disturbed if the case were reopened for consideration on the merits of the habeas petition because "the parties would simply pick up where they left off." Id. Therefore, the lack of reliance weighed in the petitioner's favor.
The same cannot be said here. When Petitioner's case became final, the State of Arizona sought and obtained a warrant of execution from the Arizona Supreme Court to carry out Petitioner's sentence; the execution is set for May 16. "Both the State and victims of crime have an important interest in the timely enforcement of a sentence." Hill v. McDonough, 547 U.S. 573, 584 (2006). As explained by the Supreme Court in Calderon v. Thompson, a capital case in which the appellate court had sought to recall its mandate for the purpose of revisiting the merits of the prisoner's habeas petition:
523 U.S. 538, 556 (1998) (citations omitted). When the State's and victims' interests in finality are viewed in light of Petitioner's lack of diligence on the Martinez issue, the Court is compelled to conclude that the State's reliance on the Court's judgment weighs against granting post-judgment relief to assess whether, under Martinez, Petitioner could establish cause and prejudice to overcome the default of his expanded sentencing ineffectiveness claim.
The fourth factor looks at whether a petitioner seeking to have a new legal rule applied to an otherwise final case has petitioned the court for reconsideration "with a degree of promptness that respects the strong public interest in timeliness and finality." Phelps, 569 F.3d at 1138 (internal quotation omitted). Here, the motion was filed just three weeks after Martinez was decided. Petitioner did not delay seeking relief based on Martinez, and this factor weighs in his favor.
The fifth factor "is designed to recognize that the law is regularly evolving." Id. at 1139. The mere fact that tradition, legal rules, and principles inevitably shift and evolve over time "cannot upset all final judgments that have predated any specific change in the law." Id. Accordingly, the nature of the change is important and courts should examine whether there is a "close connection" between the original and intervening decision at issue in a Rule 60(b)(6) motion. Id.
In Phelps, the intervening change in the law directly overruled the decision for which reconsideration was sought. Additionally, the intervening precedent "resolved a conflict between competing and co-equal legal authorities." Id. (internal quotation omitted). As already addressed regarding the first factor, the change in the law at issue here overruled long settled precedent. More critically, there is no close connection between this Court's cause determination and the decision in Martinez because the appeals court affirmed this Court's judgment on different grounds.
In Lopez, the Ninth Circuit expressly declined to address the propriety of this Court's procedural default ruling, finding instead that Petitioner was separately barred from relief by 28 U.S.C. § 2254(e)(2). 630 F.3d at 1202, 1205-06. The court's ruling did not rest on procedural default grounds and did not reach the question of cause. Thus, there is no "close connection" between the final judgment in this case and the Martinez decision, which provides a new cause argument for procedurally defaulted counsel ineffectiveness claims. Indeed, addressing cause would be an exercise in futility. This Court is bound by the Ninth Circuit's determination that Petitioner was not diligent in developing the expanded ineffectiveness claim in state court, and Martinez does not address postconviction counsel ineffectiveness in the context of § 2254(e)(2)'s diligence requirement.
The last factor concerns the need for comity between independently sovereign state and federal judiciaries. Phelps, 569 F.3d at 1139. The Ninth Circuit has determined that principles of comity are not upset when an erroneous legal judgment, if left uncorrected, "would prevent the true merits of a petitioner's constitutional claims from ever being heard." Id. at 1140. For example, in Phelps, the district court dismissed the petition as untimely, thus precluding any federal habeas review of the petitioner's claims. The court found that this favored the grant of post-judgment relief in Phelps's case because dismissal of a first habeas petition "denies the petitioner the protections of the Great Writ entirely." Id.
Here, the Court's judgment did not preclude review of all of Petitioner's federal constitutional claims. A number of the claims, including counsel ineffectiveness for failing to provide Dr. Bendheim with the statements and testimony of two relevant witnesses, were addressed on the merits in both the district and appellate courts.
Having evaluated each of the factors set forth in Gonzalez and Phelps in light of the particular facts of this case, the Court concludes that Petitioner's motion to reopen judgment fails to demonstrate the extraordinary circumstances necessary to grant relief under Rule 60(b)(6). The Court's determination that ineffectiveness of postconviction counsel could not constitute cause was at that time legally correct under longstanding caselaw, and the State of Arizona has a strong interest in carrying out Petitioner's sentence. In addition, Petitioner never previously raised this issue, and the court of appeals affirmed on an entirely different ground. Thus, reopening the case to revisit this Court's cause findings would be futile.
As an alternative, Petitioner asks the Court to treat his Rule 60(b) motion as a proper second-in-time habeas application. Petitioner correctly notes that the Supreme Court "has declined to interpret `second or successive' as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application." Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see, e.g., Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (concluding that a petition filed after district court dismissed an initial petition for failure to exhaust state remedies is not "second or successive" petition); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (holding that a second-in-time petition is not "second or successive" when it raises a claim previously dismissed as premature).
Petitioner argues that his second-in-time petition is not successive because his sentencing ineffectiveness claim "has only now become ripe because only now may he establish cause [based on Martinez] to overcome the procedural bar." (Doc. 237 at 42.) The Court declines to accept Petitioner's novel proposition that a previously ripe claim raised and dismissed with prejudice in an initial petition may be re-raised in a new petition based on a change in the law. Accordingly, Petitioner's alternative request is denied. See 28 U.S.C. § 2244(b)(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.").
To the extent a certificate of appealability is needed for an appeal from this Order, see United States v. Washington, 653 F.3d 1057, 1065 n.8 (9th Cir.) (2011) (noting open question whether COA required to appeal denial of legitimate Rule 60(b) motion), cert. denied, 132 S.Ct. 1609 (2012), the Court finds that reasonable jurists could debate its resolution of Petitioner's Rule 60(b)(6) motion. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court grants a certificate of appealability on this issue.
Based on the foregoing,
Id.
