Submitted Oct. 10, 2013.[*]
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Jon M. Sands, Federal Public Defender for the District of Arizona; Timothy M.
Gabrielson, Assistant Federal Public Defender, for Petitioner-Appellant.
Thomas C. Horne, Attorney General of Arizona; Jeffrey A. Zick, Chief Counsel; Lacey Stover Gard, Assistant Attorney General; Jeffrey L. Sparks, Assistant Attorney General, for Respondent-Appellee.
Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:03-cv-00478-DCB.
Before: RONALD M. GOULD, RICHARD C. TALLMAN, and CARLOS T. BEA, Circuit Judges.
GOULD, Circuit Judge:
We confront issues concerning whether and how the United States Supreme Court's decision in Martinez v. Ryan,
__ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), affects the standards for when a Federal Rule of Civil Procedure 60(b) (" Rule 60(b)" ) motion may be filed, and for when a second or successive 28 U.S.C. § 2254 habeas corpus petition may be filed.
Arizona death row prisoner Robert Glen Jones, Jr., appeals from the district court's order dismissing his motion for relief from judgment filed under Rule 60(b). The district court concluded that Jones's Rule 60(b) motion sought to raise new claims such that it actually constituted a second or successive 28 U.S.C. § 2254 habeas corpus petition that the district court could not consider absent authorization from our court. See Jones v. Ryan, No. CV-03-00478, 2013 WL 5348294, at *1, *5 (D.Ariz. Sept. 24, 2013) (" Petitioner is attempting, under the guise of a Rule 60(b) motion, to gain a second opportunity to pursue federal habeas relief on new grounds." ); see also 28 U.S.C. § 2244(b)(3). In No. 13-16928, we grant Jones a certificate of appealability (" COA" ), permitting our review of this appeal, and affirm the judgment of the district court. In No. 13-73647, we deny Jones's application to file a second or successive habeas corpus petition.
Because of the expedited nature of this appeal and its death penalty consequences, however, we also evaluate Jones's Rule 60(b) motion on the merits and deny him relief from judgment because he has not satisfied the standards permitting relief on those grounds. We then construe Jones's appeal as a request for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court pursuant to 28 U.S.C. § 2244(b)(3)(A). See Fed.R.Civ.P. 8(e) (" Pleadings must be construed so as to do justice." ); see also United States v. Washington, 653 F.3d 1057, 1065 (9th Cir.2011), cert. denied,
__ U.S. __, 132 S.Ct. 1609, 182 L.Ed.2d 214 (2012). Also, in footnote 5, we address Jones's application in No. 13-73647 for leave to file a second or successive petition for writ of habeas corpus. Because we conclude that Jones has not met the requirements contained in 28 U.S.C. § 2244(b), for filing a second or successive habeas corpus petition, we deny his separate request.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
Jones was convicted of six murders in Arizona state court and was sentenced to
death in 1998. He was also convicted of first-degree attempted murder, aggravated assault, armed robbery, and first-degree burglary. Our opinion of August 16, 2012, affirming the district court's denial of Jones's first 28 U.S.C. § 2254 federal habeas corpus petition, details the circumstances of Jones's crimes and the evidence presented at his trial:
In 1996, six people were killed during two armed robberies in Tucson, Arizona. On May 30, the Moon Smoke Shop was robbed, where two victims were killed and a third was wounded by gunfire. On June 13, the Fire Fighters Union Hall was robbed, and four persons there were killed.
The Moon Smoke Shop robbery began when two robbers followed a customer, Chip O'Dell, into the store and at once shot him in the back of the head. Four employees were in the store: Noel Engles, Steve Vetter, and Mark Naiman were behind one counter concentrating on the stock, and Tom Hardman was behind another. After hearing the gunshot, Engles and Naiman looked up to see a robber in a long-sleeved shirt, dark sunglasses, and a dark cowboy hat wave a gun at them and yell to get down. Naiman recognized the gun as a 9mm. Engles dropped to his knees and pushed an alarm button.
Engles noticed a second robber move toward the back room and heard someone shout, " Get the f* * * out of there!" The gunman at the counter told Naiman to open the cash register. After Naiman did so, the gunman reached over the counter and began firing at the others on the floor. Thinking that the others were dead, Naiman ran out of the store and called 911 at a pay phone. On the floor behind the counter, Engles heard shots from the back room and then, realizing the gunmen had left the store, also ran out of the store, by the back door. Running up the alley to get help, Engles saw a light-colored pickup truck with two people in it accelerate and turn on a street into heavy traffic.
Naiman and Engles survived. Vetter also survived, although shot in the arm and face. O'Dell and Hardman were both killed by close range shots to the head, O'Dell at the entrance to the store and Hardman in the back room. Three 9mm shell casings were found in the store, one beside O'Dell and two near the cash register. Two .380 shells were found near Hardman's body. Two weeks after the robbery, Naiman met with a police sketch artist who used his description of the gunmen to create sketches of the suspects. These sketches were released to the media in an effort to catch the perpetrators. At trial, two acquaintances of Jones testified that when they saw the police sketches their first thought was that they looked like Jones.
The Fire Fighters Union Hall was robbed two weeks later. There were no survivors of the violence that befell those present there. Nathan Alicata discovered the robbery at 9:20 p.m. when he arrived at the Union Hall and discovered the bodies of Maribeth Munn (Alicata's girlfriend), Carol Lynn Noel (the bartender), and a couple, Judy and Arthur Bell. The police investigation turned up three 9mm shell casings, two live 9mm shells, and two .380 shell casings. About $1300 had been taken from the open cash register, but the robbers were unable to open the safe. The coroner, who examined the bodies at the scene, concluded that the bartender had been shot twice, and that the other three victims were shot through the head at close range as their heads lay on the bar. The bartender's body had a laceration on her mouth consistent with having
been kicked in the face, and Arthur Bell's body had a contusion on the right side of his head showing he was struck with a blunt object, possibly a pistol.
In 1998, petitioner Robert Jones was convicted of these ghastly crimes of multiple murder and sentenced to death. His co-defendant, Scott Nordstrom, had been convicted in a separate proceeding six months earlier. Jones's theory of the case at trial and on appeal was that Scott Nordstrom and his brother David Nordstrom committed these murders, while he was not involved. While there was no physical evidence or positive eyewitness identifications conclusively linking Jones to the crimes, both he and his truck matched descriptions given by survivors of the Moon Smoke Shop robbery. The prosecution's case against Jones was based in large part on David Nordstrom's testimony. David Nordstrom gave a detailed account of his role as a getaway driver in the Moon Smoke Shop robbery, and identified Jones as a robber and shooter, as well as the guns he carried. But that was not all of the testimony against Jones. Lana Irwin, an acquaintance of Jones, also testified that she overheard Jones talking about details of these murders that the police had not released to the general public. Jones's friend David Evans gave additional implicating testimony.
Jones v. Ryan, 691 F.3d 1093, 1096-97 (9th Cir.2012), cert. denied,
__ U.S. __, 133 S.Ct. 2831, 186 L.Ed.2d 890 (2013).
Jones's convictions and sentence were upheld on direct review, and on state collateral review and federal habeas corpus review, culminating in our opinion in Jones v. Ryan, 691 F.3d 1093 (9th Cir.2012). Jones filed a petition for a writ of certiorari at the United States Supreme Court, which declined review. Jones v. Ryan,
__ U.S. __, 133 S.Ct. 2831, 186 L.Ed.2d 890 (2013). The Supreme Court decided Martinez on March 20, 2012, holding that, in some circumstances, the ineffective assistance of state post-conviction relief counsel can serve as cause to excuse the procedural default of an ineffective-assistance-of-trial-counsel claim. 132 S.Ct. at 1315. Thereafter, on August 21, 2013, Jones filed a motion in the district court seeking relief from judgment pursuant to Rule 60(b)(6). Jones sought to assert three new ineffective-assistance-of-trial-counsel claims based on Martinez, and to assert a new claim for an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), during habeas corpus proceedings.
The State of Arizona (" the State" ) moved to dismiss Jones's self-styled Rule 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2244(b)(2). The district court agreed with the State that Jones could not use Rule 60(b) as a vehicle to assert new claims and dismissed Jones's appeal for lack of jurisdiction absent authorization from the Court of Appeals for the Ninth Circuit. Jones, 2013 WL 5348294, at *1. The district court neither granted nor explicitly denied a COA. This appeal followed. Jones's execution has been set for October 23, 2013. As noted above, in No. 13-16928 we grant Jones a COA, which is necessary to permit our review of this appeal.
We review the district court's decision to dismiss Jones's Rule 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2254 habeas corpus petition de novo. See Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir.2005); Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998) (en banc).
Rule 60(b) " allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances." Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Rule 60(b)(6), the provision under which Jones brought his motion, permits reopening for " any ... reason that justifies relief" other than the more specific reasons set out in Rule 60(b)(1)-(5). Fed.R.Civ.P. 60(b)(6); see Gonzalez, 545 U.S. at 528-29, 125 S.Ct. 2641. A movant seeking relief under Rule 60(b)(6) must show " ‘ extraordinary circumstances' justifying the reopening of a final judgment." Gonzalez, 545 U.S. at 535, 125 ...