United States v. Juda

207 F. App'x 757

Opinion

MEMORANDUM

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Federal prisoner Olaf Peter Juda appeals pro se from the district court’s order denying his Federal Rule of Civil Procedure 60(b) motion. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Juda contends that the district court erroneously construed his Rule 60(b) motion as an attempt to file a successive federal habeas motion under 28 U.S.C. § 2255. However, because Juda’s Rule 60(b) motion seeks to relitigate issues on the merits, we conclude that the district court properly treated his motion as a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 2649, 162 L.Ed.2d 480 (2005) (“[A] Rule 60(b) motion that seeks to revisit the federal court’s denial on the merits of a claim for relief should be treated as a successive habeas petition.”); Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998) (en banc). Juda did not obtain authorization to file a successive § 2255 motion, and thus the district court lacked jurisdiction to consider his claims. See 28 U.S.C. §§ 2244(b)(3) and 2255; see also United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998).

Juda’s request that this court construe his appeal as a request for authorization to file a successive 28 U.S.C. § 2255 motion in the district court is denied. Juda has not made a prima facie showing of:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder 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.

28 U.S.C. § 2255.

No petition for rehearing or motion for reconsideration shall be filed in this case. See 28 U.S.C. § 2244(b)(3)(E).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.