                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             MAR 31 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
MICHAEL L. SELF,                                 No. 15-15760

              Petitioner-Appellant,              D.C. No. 2:00-cv-01058-PGR

 v.
                                                 MEMORANDUM*
CHARLES L. RYAN,

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Paul G. Rosenblatt, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

Before: W. FLETCHER, FUENTES,** and RAWLINSON, Circuit Judges.

      Appellant Michael Self seeks review of the denial of his Rule 60(b)(6)

Motion for Relief from the Judgment. He argues that a subsequent change in the

law and the unique circumstances of his case entitle him to relief. In 2009, the

Supreme Court decided Jimenez v. Quarterman, 555 U.S. 113 (2009), and adopted

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
the same argument that Self had advanced unsuccessfully eight years earlier in a

prior petition for habeas relief. Self, untutored in law, was unaware of the Court’s

decision in Jimenez for five years. When a fellow inmate brought Jimenez to his

attention, Self promptly sought relief from the earlier judgment. The district court

in the present case held that, in spite of the change in law, relief was not warranted.

Self timely appeals.

       We have jurisdiction under 28 U.S.C. § 1291 and § 2253, and we review the

district court’s denial of a Motion for Relief for abuse of discretion. Harvest v.

Castro, 531 F.3d 737, 741 (9th Cir. 2008). We vacate and remand for further

proceedings.

       A movant seeking relief under Rule 60(b)(6) must show “extraordinary

circumstances justifying the reopening of a final judgment.” Gonzalez v. Crosby,

545 U.S. 524, 535 (2005) (internal citation removed). Among the factors to be

considered are (1) whether an “intervening change in law . . . overruled an

otherwise settled legal precedent,” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th

Cir. 2009); (2) a “lack of diligence in pursuing review of the statute-of-limitations

issue,” id. at 1138-39 (quoting Gonzalez, 545 U.S. at 537); (3) “whether granting

the motion to reconsider would ‘undo the past, executed effects of the judgment,’

thereby disturbing the parties’ reliance interest in the finality of the case,” id. at

1137 (quoting Ritter v. Smith, 811 F.2d 1398, 1402 (11th Cir. 1987)); (4) “delay

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between the finality of the judgment and the motion for Rule 60(b)(6) relief,” id. at

1138; (5) “the close relationship between the two cases at issue–the decision

embodying the original judgment and the subsequent decision embodying the

change in the law,” id. (internal quotation marks omitted); and (6) “considerations

of comity.” Id. at 1139 (quoting Ritter, 811 F.2d at 1403).

       The district court made a mistake as to the third factor. The court found

“there is no indication that ‘the final judgment being challenged has caused’ either

of the parties to change their ‘position in reliance on the judgment.’ See Phelps,

569 F.3d at 1138. Thus, this factor weighs against reopening.” Contrary to the

conclusion of the district court, this factor weighs in favor of granting the motion

because “neither party has relied . . . on the finality of the district court’s

dismissal.” Phelps, 569 F.3d at 1138. As in Phelps: “Neither the State nor [Self]

have undergone any change in legal position . . . due to the district court’s

judgment. To the contrary, when [Self’s] petition was dismissed, his federal case

simply ended: [Self] remained in prison, and the State stopped defending his

imprisonment. There are no ‘past effects’ of the judgment that would be disturbed

if the case were reopened for consideration of the merits of [Self’s] habeas

petition.” Id.

       The district court rested its decision on the conclusion that “two of the

Gonzalez/Phelps factors weighed in favor of reopening, and the remaining four

                                             3
factors do not.” Once this mistake is corrected, the balance is three factors in favor

of reopening and the remaining three against reopening. Because it is unclear

whether the district court would have reached the same conclusion or would have

granted Self’s motion had it evaluated correctly the third factor, we remand to the

district court for reconsideration.

      Petitioner-Appellant’s March 25, 2016 Motion to Expand the Record on

Appeal is GRANTED. The court takes judicial notice of the documents submitted

in response to its order of February 7, 2017.

      VACATED AND REMANDED.




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