Karon Bowser v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2020
• Docket: 17-56504
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KARON DOMINIQUE BOWSER, No. 17-56504

Petitioner-Appellant, D.C. No. 8:14-cv-00714-DOC

v. MEMORANDUM* UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Karon Dominique Bowser appeals from the district court’s order denying his

motion for reconsideration of its order denying his Federal Rule of Civil Procedure

60(b) (“Rule 60(b)”) motion. We have jurisdiction under 28 U.S.C. § 2253.

Reviewing de novo, see Brown v. Muniz, 889 F.3d 661, 666 (9th Cir. 2018), cert.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). denied sub nom., Brown v. Hatton, 139 S. Ct. 841 (2019), we affirm.

The district court denied reconsideration of its denial of Bowser’s Rule 60(b)

motion, concluding that the Rule 60(b) motion was subject to 28 U.S.C.

§ 2255(h)’s restrictions on second or successive § 2255 motions because the

evidence supporting the alleged violation under Brady v. Maryland, 373 U.S. 83

(1963), was not material. This court subsequently held that Brady claims, even

those that present material evidence, are subject to § 2255(h)’s second or

successive gatekeeping requirement. See Brown, 889 F.3d at 668. In light of

Brown, Bowser’s Brady challenge, raised in his disguised second or successive

§ 2255 motion, is subject to § 2255(h), and the district court properly denied

reconsideration.

In lieu of an opening brief, Bowser filed an original Rule 60(b) motion with

this court asserting a new Brady challenge. We decline to consider Bowser’s Rule

60(b) motion. This decision is without prejudice to Bowser seeking Rule 60(b)

relief in the district court. We express no opinion as to the merits of any such

motion, or as to whether such a motion would be subject to § 2255(h) or would

instead qualify as a “true” Rule 60(b) motion under Gonzalez v. Crosby, 545 U.S.

524, 531-36 (2005).

To the extent Bowser seeks to expand the certificate of appealability, that

motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-

2 17-56504 05 (9th Cir. 1999).

AFFIRMED.

3 17-56504