               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GERALD ROSS PIZZUTO, JR.,               No. 13-35443
             Petitioner-Appellant,
                                           D.C. No.
                v.                      1:92-cv-00241-
                                             BLW
AL RAMIREZ, Warden of Idaho
Maximum Security Institute,
             Respondent-Appellee.         OPINION


     Appeal from the United States District Court
               for the District of Idaho
   B. Lynn Winmill, Chief District Judge, Presiding

               Argued and Submitted
    September 17, 2014—San Francisco, California

                 Filed April 22, 2015

    Before: Raymond C. Fisher, Ronald M. Gould,
      and Johnnie B. Rawlinson, Circuit Judges.

               Opinion by Judge Gould
2                      PIZZUTO V. RAMIREZ

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of an Idaho
state prisoner’s motion under Fed. R. Civ. P. 60(b) and 60(d)
for relief from a judgment denying his habeas corpus petition
challenging his conviction and capital sentence for two counts
of first-degree murder, two counts of felony murder, and one
count of grand theft.

     The panel concluded that the prisoner’s arguments –
(1) that Martinez v. Ryan, 132 S. Ct. 1309 (2012), gives cause
for the state-law procedural default of three of the claims he
raised in his initial federal habeas petition, and (2) that the
state’s lawyers perpetrated a fraud on the federal district court
– fall within the scope of permissible Rule 60(b) motions and
are not a disguised second or successive habeas corpus
petition.

     The panel declined to extend Martinez to cover claims
other than ineffective assistance of trial or appellate counsel
to excuse procedural default. The panel held that the
prisoner’s two claims detailing the alleged biases and errors
of a state court judge who presided over the guilt and
sentencing phases of his trial are not the type of claims that
can be pursued under Martinez. The panel held that the
prisoner’s claim that his trial and appellate attorney had a
conflict of interest based on his relationship with the state
trial judge is a Sixth Amendment ineffective-assistance-of-

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    PIZZUTO V. RAMIREZ                       3

counsel claim eligible for consideration under Martinez. But
the panel held that the conflict-of-interest claim is
unsupported by the record and thus does not establish cause
to excuse procedural default.

   The panel held that the prisoner’s contention that the state
Attorney General’s office perpetrated a fraud on the district
court has so little basis in the record as to be wholly
unpersuasive. The panel therefore agreed with the district
court’s denial of the prisoner’s motion under Rules 60(b) and
60(d) for relief on that basis.


                         COUNSEL

Heather E. Williams, Federal Defender; Joseph Schlesinger
and Joan M. Fisher (argued), Assistant Federal Defenders,
Office of the Federal Defender for the Eastern District of
California, Sacramento, California, for Petitioner-Appellant.

Lawrence G. Wasden, Attorney General of Idaho; L. LaMont
Anderson (argued), Deputy Attorney General, Capital
Litigation Unit Chief, Boise, Idaho, for Respondent-Appellee.
4                   PIZZUTO V. RAMIREZ

                         OPINION

GOULD, Circuit Judge:

    Idaho state prisoner Gerald Ross Pizzuto, Jr., appeals
from the denial of his motion under Federal Rules of Civil
Procedure 60(b) and 60(d) for relief from the district court’s
judgment denying his petition for a writ of habeas corpus.
Pizzuto, who has been sentenced to death, contends: (1) that
Martinez v. Ryan, 132 S. Ct. 1309 (2012), established the
kind of extraordinary circumstances needed to justify
reopening the judgment under Rule 60(b)(6), and that three of
his claims for post-conviction relief relating to judicial bias
and his trial counsel’s conflict of interest, which were
rejected by the Idaho Supreme Court as procedurally barred,
are in fact eligible for consideration under Martinez; and
(2) that he is entitled to relief under Rules 60(b)(6) and
60(d)(3) because the states’ attorneys had perpetrated a fraud
on the federal district court. We have jurisdiction under 28
U.S.C. § 1291. We conclude that Pizzuto’s claims relating to
judicial bias do not fall within Martinez’s exception, his
claim relating to his counsel’s conflict of interest does not
satisfy our circuit’s test for establishing cause to excuse
procedural default under Martinez, and he has not established
a factual basis to show that the state’s attorneys perpetrated
a fraud on the court during his federal habeas proceedings.
We affirm.

                              I

   In 1986, Pizzuto was convicted of two counts of first-
degree murder, two counts of felony murder, one count of
robbery (which was later vacated by the Idaho Supreme
                   PIZZUTO V. RAMIREZ                      5

Court), and one count of grand theft. The Idaho Supreme
Court summarized his offenses:

       Pizzuto approached [Berta Louise Herndon
       and her nephew, Delbert Dean Herndon] with
       a .22 caliber rifle as they arrived at their
       mountain cabin and made them enter the
       cabin. While inside, he tied the Her[n]dons’
       wrists behind their backs and bound their legs
       in order to steal their money. Some time later,
       he bludgeoned Berta Herndon to death with
       hammer blows to her head and killed Del
       Herndon by bludgeoning him in the head with
       a hammer and shooting him between the eyes.
       Pizzuto murdered the Her[n]dons just for the
       sake of killing and subsequently joked and
       bragged about the killings to his associates.

Pizzuto v. State, 202 P.3d 642, 645 (Idaho 2008); see also
Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir. 2012);
Pizzuto v. Arave, 280 F.3d 949, 952–53 (9th Cir. 2002),
dissent amended and superseded in part, 385 F.3d 1247 (9th
Cir. 2004).

    Pizzuto’s state petition for post-conviction relief was
denied by the state district court, and the Idaho Supreme
Court affirmed. State v. Pizzuto, 810 P.2d 680 (Idaho 1991).
At trial, Pizzuto was represented by Nick Chenoweth and
Scott Wayman, who also represented him during this first
state post-conviction relief petition. During the post-
conviction proceedings, Chenoweth and Wayman filed a
motion to disqualify Judge George Reinhardt, who had
presided over Pizzuto’s guilt and sentencing phase trials, on
the grounds that Judge Reinhardt could not be impartial based
6                   PIZZUTO V. RAMIREZ

on allegations challenging his conduct during the trial and in
relation to two of Pizzuto’s co-defendants. Judge Reinhardt
denied the motion.

    Pizzuto filed his initial federal habeas corpus petition,
which the state answered by arguing that many of Pizzuto’s
claims were not exhausted because they had not been brought
in the initial state post-conviction proceeding. Pizzuto then
returned to state court to exhaust those claims, but the Idaho
courts held that those same claims were procedurally barred
because they could have been brought in the first post-
conviction proceeding. Pizzuto v. State, 903 P.2d 58 (Idaho
1995). When Pizzuto returned to federal court, the district
court held that Pizzuto had not shown sufficient cause to
excuse the procedural default of his ineffective assistance of
counsel and judicial bias claims. We affirmed those rulings.
Arave, 280 F.3d at 975–76.

    After the United States Supreme Court’s decision in
Martinez v. Ryan, Pizzuto filed a Rule 60 motion, the denial
of which is now before us. Seeking relief from the denial of
his first habeas corpus petition, he argued first that Martinez
established the kind of extraordinary circumstances needed to
justify reopening the judgment under Rule 60(b)(6), and that
three of the claims rejected by the Idaho Supreme Court as
procedurally barred are eligible for consideration under
Martinez. Pizzuto also argued that he is entitled to relief
under Rules 60(b)(6) and 60(d)(3) because the state’s
attorneys had perpetrated a fraud on the federal district court.
The claims that Pizzuto attempts to reopen are the thirteenth,
fourteenth, and twentieth grounds for issuance of the writ in
Pizzuto’s initial habeas corpus petition. The thirteenth
ground (“Claim 13”) is that Judge Reinhardt had been biased
at the guilt and sentencing phases of trial, as shown by
                        PIZZUTO V. RAMIREZ                               7

questioning witnesses inappropriately and making off-the-
record comments to Pizzuto’s family that Pizzuto was a
murderer who was going to be “burn[ed].” The fourteenth
ground (“Claim 14”) also relates to judicial bias, claiming
that Judge Reinhardt had contact with the jurors outside the
presence of Pizzuto or his counsel. And the twentieth ground
(“Claim 20”) is that Pizzuto was denied his right to effective
assistance of counsel because Chenoweth, his attorney at trial,
on appeal, and on his initial state post-conviction review, had
a close relationship with Judge Reinhardt, which created a
conflict of interest. That relationship, which Chenoweth did
not disclose to Pizzuto, included having formerly employed
Judge Reinhardt and having gone on vacation together.

    The district court denied Pizzuto’s motion, holding that
Claims 13 and 14 were not ineffective assistance of counsel
claims, and therefore were outside the scope of Martinez. It
held that Claim 20 could be considered under the Martinez
framework but that it was not “substantial” and thus failed.
Finally, the district court held that Pizzuto had not established
a factual basis for his fraud on the court claim. It granted a
certificate of appealability on all issues, and this appeal
followed.1




   1
       We previously vacated the district court’s denial of Pizzuto’s
successive petition for a writ of habeas corpus, and remanded for the
district court to consider that petition in light of the Supreme Court’s
decision in Hall v. Florida, 134 S. Ct. 1986 (2014). See Pizzuto v. Blades,
758 F.3d 1178 (9th Cir. 2014) (withdrawing our earlier published opinion
in Pizzuto v. Blades, 729 F.3d 1211 (9th Cir. 2013), which had affirmed
the district court). The disposition of that petition is pending.
8                   PIZZUTO V. RAMIREZ

                              II

    We review a district court’s denial of a Rule 60(b) motion
for abuse of discretion. Towery v. Ryan, 673 F.3d 933, 940
(9th Cir. 2012). “A court abuses its discretion when it fails to
identify and apply the correct legal rule to the relief
requested, or if its application of the correct legal standard
was illogical, implausible or without support in inferences
that may be drawn from the facts in the record.” Id. (citing
United States v. Hinkson, 585 F.3d 1247, 1262–63 (9th Cir.
2009) (en banc)).

    We may affirm the district court on any basis supported
by the record, whether or not relied on by the district court.
Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir.
2007).

                              III

A. Pizzuto’s Claims Are Not Entitled to Relief Under
   Martinez

    Pizzuto’s first argument is that Martinez v. Ryan gives
cause for the state-law procedural default of three of the
claims that he raised in his initial habeas corpus petition. The
state urges that this argument be rejected as an improper
second or successive habeas corpus petition under the guise
of a Rule 60(b) motion. We conclude that the claims were
properly brought under Rule 60(b), and then consider the
claims within the Martinez framework. On the merits, we
affirm the district court’s rejection of Pizzuto’s argument
because Claims 13 and 14 are not ineffective assistance of
counsel claims—the only substantive area that Martinez
                    PIZZUTO V. RAMIREZ                        9

covers—and Claim 20 does not satisfy Martinez’s
requirements.

   1. Pizzuto’s Rule 60(b) Motion Is Not a Disguised
      Second or Successive Habeas Petition

    Rule 60(b) permits a party to seek relief from a final
judgment under limited circumstances. Jones v. Ryan,
733 F.3d 825, 833 (9th Cir. 2013), cert. denied, 134 S. Ct.
503 (2013). Rule 60(b)(6), the primary provision under
which Pizzuto seeks relief, requires a showing of
extraordinary circumstances that justify reopening a
judgment. Id.

    Jones considered at length when a Rule 60(b) motion
filed by a habeas corpus petitioner should be dismissed as an
improper disguised second or successive habeas petition.
While there is no bright-line rule for distinguishing the two,
“a legitimate Rule 60(b) motion ‘attacks . . . some defect in
the integrity of the federal habeas proceedings,’ while a
second or successive habeas corpus petition ‘is a filing that
contains one or more claims.’” Id. at 834 (quoting Gonzalez
v. Crosby, 545 U.S. 524, 530, 532 (2005)). Motions that
allege fraud on the federal habeas corpus court, or allege a
prior ruling which prevented a merits determination—such as
a ruling that certain claims were procedurally defaulted—was
in error are properly brought under Rule 60(b). Id.

    Applying that legal framework to Pizzuto’s claims here,
we conclude that all three of Pizzuto’s claims are properly
made under Rule 60(b). Pizzuto’s motion argued that Claims
13, 14, and 20 of his initial federal habeas corpus petition had
been improperly held procedurally defaulted. And his other
argument is that the state’s lawyers perpetrated a fraud on the
10                  PIZZUTO V. RAMIREZ

federal district court. These arguments fall within the
permissible scope of Rule 60(b) motions. Gonzalez, 545 U.S.
at 538 (“A motion that . . . challenges only the District
Court’s failure to reach the merits does not warrant [treatment
as a successive habeas corpus petition], and can therefore be
ruled upon by the District Court without precertification by
the Court of Appeals pursuant to § 2244(b)(3).”); cf. Jones,
733 F.3d at 835–37 (rejecting an attempt to use a Rule 60(b)
motion and Martinez to raise ineffective assistance of counsel
claims that had never before been presented to the state or
federal court).

    The state argues that, although challenges to prior
procedural defaults are generally within the ambit of Rule
60(b) motions, see Gonzalez, 545 U.S. at 532 n.4, Pizzuto’s
attempt to define his claims as ineffective assistance of
counsel claims with an aim to fit them within the scope of
Martinez v. Ryan transforms them into new claims that
require a second or successive habeas petition, see id. at 531.
As discussed more fully below, we reject Pizzuto’s effort to
transform Claims 13 and 14 into ineffective assistance of
counsel claims, and thus decline to extend the rule announced
in Martinez to cover them. Were we persuaded by Pizzuto’s
efforts, the state would be correct that Rule 60(b) could not be
used as an end-run around the bar on successive habeas
corpus petitions. As for Claim 20, we conclude that it has
been an ineffective assistance of counsel claim under
Martinez from the beginning, but that it does not satisfy the
test we have articulated for relief under Martinez.
                    PIZZUTO V. RAMIREZ                       11

   2. Martinez Is Limited to Claims of Ineffective
      Assistance of Counsel

    Pizzuto argues that Claims 13 and 14, relating to judicial
bias, independently support the application of Martinez. We
disagree and hold that such an interpretation of Martinez’s
scope is foreclosed by our precedent.

    The Supreme Court has held that state post-conviction
review counsel’s ineffective assistance cannot serve as cause
to excuse the procedural default of claims. Coleman v.
Thompson, 501 U.S. 722, 752–54 (1991). Martinez
established a “narrow exception” to Coleman’s procedural
default principle: “Inadequate assistance of counsel at initial-
review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective
assistance at trial.” Martinez, 132 S. Ct. at 1315. Trevino v.
Thaler, 133 S. Ct. 1911, 1918–20 (2013), slightly expanded
the application of Martinez to include cases from states where
petitioners are permitted to raise claims of ineffective
assistance on direct appeal, but are practically barred from
doing so by local court rules.

    But we have not allowed petitioners to substantially
expand the scope of Martinez beyond the circumstances
present in Martinez or Trevino. In Hunton v. Sinclair,
732 F.3d 1124, 1126–27 (9th Cir. 2013), we denied a
petitioner’s claim that Martinez permitted the resuscitation of
a procedurally defaulted Brady claim, holding that only the
Supreme Court could expand the application of Martinez to
other areas.

   The one exception to that rule is Ha Van Nguyen v. Curry,
736 F.3d 1287, 1296 (9th Cir. 2013), where we held that
12                   PIZZUTO V. RAMIREZ

Martinez covered claims of ineffective assistance of appellate
counsel, not just ineffective assistance of counsel at trial.
However, even in adopting this expansion, we noted that
further substantive expansion would not be forthcoming,
stating: “[t]he Martinez rule is limited to an underlying Sixth
Amendment ineffective-assistance claim.” Id.

     We follow Hunton and Nguyen and decline to extend
Martinez to cover claims other than ineffective assistance of
trial or appellate counsel.

     3. Claims 13 and 14 Are Not Eligible for Consideration
        Under Martinez; Claim 20 Is a Potential Martinez
        Claim, But It Does Not Establish Cause and
        Prejudice to Excuse Procedural Default

    Pizzuto argues that Claim 20, which argued for habeas
relief on the grounds that his trial and appellate attorney, Nick
Chenoweth, had a conflict of interest based on his
relationship with the trial judge, Judge Reinhardt, is an
ineffective assistance of counsel claim under Martinez. He
further argues that Claims 13 and 14, which detail the alleged
biases and errors of Judge Reinhardt, should be considered
evidence of prejudice accountable to Chenoweth’s conflict of
interest. Pizzuto’s argument is that Chenoweth failed to
object to these purported biases at trial in order to maintain
Chenoweth’s relationship with Reinhardt.

    Our analysis above confirms that Claims 13 and 14 are
not the type of claims that can be pursued under Martinez.
Permitting claims of trial error to be considered ineffective
assistance of counsel claims because an effective attorney
would have prevented or remedied that purported error would
                        PIZZUTO V. RAMIREZ                            13

expand Martinez to include all potential errors, and make the
limitations we stated in Hunton and Nguyen nonsensical.

    Nor can we fairly construe Claims 13 and 14 as
ineffective assistance of counsel claims. Nowhere in their
text does that allegation occur, and they do not allege any
specific failures by trial or appellate counsel. Moreover,
because there is no hint of an ineffective assistance of counsel
argument in the text of the claims, if we accepted Pizzuto’s
arguments relating to Claims 13 and 14, we would essentially
be treating them as new claims, which Jones v. Ryan made
clear are barred by the rule against successive habeas corpus
petitions. See 733 F.3d at 834–35. We conclude that Claims
13 and 14 are not eligible for consideration under Martinez’s
exception to the procedural default rule, and the district
court’s decision is affirmed as to those claims.

    As for Claim 20, assuming without deciding that if the
claim satisfied Martinez’s requirements, it would constitute
an extraordinary circumstance sufficient to justify relief under
Rule 60(b)(6),2 we hold that Pizzuto’s claim does not
establish cause to excuse procedural default under Martinez.

    The state argues that because conflict of interest cases are
governed by a different standard than most ineffective
assistance cases, Claim 20 cannot be considered under
Martinez without impermissibly expanding its scope.


 2
   Jones v. Ryan gives us some reason to doubt that it does. See 733 F.3d
at 839–40 (applying the factors identified in Phelps v. Alameida, 569 F.3d
1120, 1135–40 (9th Cir. 2009), to determine whether extraordinary
circumstances exist, and holding that the change in the law signified by
Martinez is not an extraordinary circumstance in a death penalty case with
some similarities to Pizzuto’s).
14                  PIZZUTO V. RAMIREZ

Specifically, the state notes the differences between the legal
standard governing typical ineffective assistance of counsel
claims under Strickland v. Washington, 466 U.S. 668 (1984),
and the standard set out by the two leading conflict of interest
cases from the Supreme Court, Cuyler v. Sullivan, 446 U.S.
335 (1980), and Mickens v. Taylor, 535 U.S. 162 (2002). But
Martinez does not refer to “Strickland” claims; it refers to
claims of “ineffective assistance of counsel.” 132 S. Ct. at
1315. We have interpreted that phrase to include all Sixth
Amendment ineffectiveness of counsel claims. See Nguyen,
763 F.3d at 1296. And although they are governed by a
different legal standard, conflict of interest claims go to the
same legal injury as standard ineffective assistance claims.
In Alberni v. McDaniel, we said that the “Sixth Amendment
right to counsel includes a correlative right to representation
free from conflicts of interest.” 458 F.3d 860, 869 (9th Cir.
2006) (internal quotation marks omitted). We therefore
conclude that conflict of interest claims are eligible for
consideration under Martinez.

    But we affirm the district court’s denial of Pizzuto’s
claim. In Mickens, 535 U.S. at 174–75, the Supreme Court
held that potential relationships between counsel and a trial
judge are among the types of conflicts that require a showing
of an actual conflict that adversely impacted counsel’s
performance. This standard means that a petitioner must
show more than “a mere theoretical division of loyalties,” but
must prove “‘that a conflict of interest actually affected the
adequacy of his representation.’” Id. at 171 (quoting Cuyler,
446 U.S. at 349).

    We have also described the analysis that applies once a
claim has been determined to be eligible for consideration
under Martinez. See Clabourne v. Ryan, 745 F.3d 362,
                     PIZZUTO V. RAMIREZ                       15

376–78 (9th Cir. 2014) (summarizing the holdings of the
fragmented opinions in Detrich v. Ryan, 740 F.3d 1237 (9th
Cir. 2013) (en banc)). Clabourne explained:

        To demonstrate cause and prejudice sufficient
        to excuse the procedural default, therefore,
        Martinez and Detrich require that Clabourne
        make two showings. First, to establish
        “cause,” he must establish that his counsel in
        the state postconviction proceeding was
        ineffective under the standards of Strickland.
        Strickland, in turn, requires him to establish
        that both (a) post-conviction counsel’s
        performance was deficient, and (b) there was
        a reasonable probability that, absent the
        deficient performance, the result of the post-
        conviction proceedings would have been
        different. See Strickland, 466 U.S. at 687,
        694, 104 S. Ct. 2052. Second, to establish
        “prejudice,” he must establish that his
        “underlying ineffective-assistance-of-trial-
        counsel claim is a substantial one, which is to
        say that the prisoner must demonstrate that the
        claim has some merit.” Martinez, 132 S. Ct.
        at 1318.

Id. at 377.

    The district court in this case did not have the benefit of
Detrich or Clabourne when it decided Pizzuto’s Rule 60(b)
motion. But we need not vacate and remand because it is
clear from the record that Pizzuto is not entitled to relief. Cf.
Clabourne, 745 F.3d at 376. Pizzuto has not satisfied the
“cause” prong of the analysis, which relates to the ineffective
16                  PIZZUTO V. RAMIREZ

assistance of his initial post-conviction review counsel, Nick
Chenoweth. Indeed, analyzing Pizzuto’s procedural default
under the pre-Martinez standard of cause and prejudice, we
held that his conflict of interest claim lacked merit:

       Pizzuto does not show how [Chenoweth’s
       personal relationship with Judge Reinhardt]
       amounts to an actual conflict of interest such
       that counsel would not have challenged Judge
       Reinhardt’s behavior. See Cuyler v. Sullivan,
       446 U.S. 335, 345–50 (1980); see also
       Barnhill v. Flannigan, 42 F.3d 1074, 1077–78
       (7th Cir. 1994) (noting the general rule that an
       attorney’s actual conflict can be sufficient
       cause to excuse a procedural default, but
       holding no actual conflict shown by allegation
       that public defender on appeal refrained from
       raising ineffectiveness of trial counsel who
       was also a public defender). In fact,
       [Chenoweth] moved for a new trial and to
       disqualify Judge Reinhardt from participating
       in further proceedings based on a charge of
       judicial misconduct, and challenged Judge
       Reinhardt’s lack of partiality during the
       sentencing phase in Pizzuto’s amended first
       petition for post-conviction relief.           If
       [Chenoweth] had truly been conflicted, [he]
       would not have taken either step. As we
       cannot presume that a conflict exists where
       none is demonstrated, see Cuyler, 446 U.S. at
       347–48, Pizzuto has failed to establish cause.

Arave, 280 F.3d at 975–76. Even if Martinez’s “some merit”
standard is a lower bar than the standard we applied earlier,
                     PIZZUTO V. RAMIREZ                       17

Pizzuto must show ineffective assistance at the post-
conviction review stage. The alleged conflict constituting
ineffective assistance of initial post-conviction review
counsel—Chenoweth’s personal relationship with Judge
Reinhardt—is identical to the conflict underlying his
ineffective assistance of trial counsel claim. Our skepticism
in Arave that Pizzuto had demonstrated an actual conflict at
the trial level was rooted in large part in the fact that
Chenoweth sought to disqualify Judge Reinhardt for bias at
the post-conviction review stage. See Arave, 280 F.3d at 976.

    It does not matter whether we apply the Strickland
standard to this inquiry, as Clabourne holds, or, in light of our
conclusion that conflict of interest claims are eligible for
review under Martinez, we use the Cuyler standard. The
result is the same. Under the standard in Strickland, Pizzuto
has offered nothing beyond speculation that actual conflict
rendered Chenoweth’s performance at post-conviction review
deficient or that he was prejudiced at the post-conviction
review stage by this deficiency, and the record of those
proceedings indicates that his counsel’s performance was not
deficient. Similarly, applying the standard in Cuyler, where
no separate showing of prejudice is needed but where “a
conflict of interest [must] actually [have] affected the
adequacy of [counsel’s] representation,” Cuyler, 446 U.S. at
349, Pizzuto has not shown that Chenoweth’s relationship
with Judge Reinhardt affected the adequacy of his
representation at the post-conviction stage any more than he
had demonstrated a conflict at the trial stage. We hold that
Pizzuto has not established cause sufficient to excuse
procedural default under Martinez.

    Because Pizzuto’s claim that his counsel had a conflict of
interest based on counsel’s relationship with the trial judge is
18                   PIZZUTO V. RAMIREZ

unsupported by the record, we affirm the district court’s
denial of Pizzuto’s motion under Rule 60(b).

B. Pizzuto Has Not Shown that the Government Perpetrated
   a Fraud on the District Court

    Pizzuto’s second claim is that the denial of his habeas
corpus petition should be set aside because the Idaho
Attorney General’s office has perpetrated a fraud on the
district court. We disagree.

    Federal Rule of Civil Procedure 60(d)(3) permits courts
to set aside judgments for fraud on the court, and we have
held that Rule 60(b)(6)’s “extraordinary circumstances”
doctrine encompasses the same acts. Latshaw v. Trainer
Wortham & Co., Inc., 452 F.3d 1097, 1104 (9th Cir. 2006).
We have held that a party bears a high burden in seeking to
prove fraud on the court, which must “involve an
‘unconscionable plan or scheme which is designed to
improperly influence the court in its decision.’” Abatti v.
Comm’r, 859 F.2d 115, 118 (9th Cir. 1988) (quoting Toscano
v. Comm’r, 441 F.2d 930, 934 (9th Cir. 1971)).

     As an equitable rule, there is no specific set of facts that
a petitioner must show. But in United States v. Estate of
Stonehill, 660 F.3d 415, 443–44 (9th Cir. 2011), we held that
fraud on the court must be established by clear and
convincing evidence, id. at 443, and outlined some of the
relevant considerations for distinguishing “fraud on the court”
from other forms of fraud, id. at 444. Specifically, we do not
inquire about prejudice to the party seeking to prove fraud,
but rather consider whether the integrity of the judicial
process was itself harmed, such that the court cannot perform
its regular task of fairly adjudicating disputes. Id. Examples
                    PIZZUTO V. RAMIREZ                      19

typically involve “a scheme by one party to hide a key fact
from the court and the opposing party.” Id.

    Pizzuto’s claim of fraud on the court rests on two sets of
factual claims. The first set is a series of allegations of
improprieties during his trial. The allegations include: (1) a
secret plea agreement for Pizzuto’s co-defendant James Rice,
allegedly orchestrated by Pizzuto’s trial judge, Judge
Reinhardt; (2) allegedly perjured testimony from Rice elicited
by the prosecutors and allowed by Judge Reinhardt denying
the existence of such a plea; and (3) Judge Reinhardt’s
alleged participation in the collection or fabrication of
evidence against Pizzuto. The second set of claims, which is
necessary to transform these wrongdoings into a fraud on the
federal habeas corpus court rather than the state trial court,
includes the contention that the Idaho Attorney General’s
office knew of and concealed these facts while defending
Pizzuto’s habeas corpus petition before the federal district
court, the denial of which underlies the Rule 60 motion
before us.

    Even if we assume that the first set of allegations are
accurate and substantial, we affirm the district court’s denial
of Pizzuto’s motion because Pizzuto has not shown how the
actions of the state in defending against Pizzuto’s federal
habeas appeals constitute a fraud on the court. Indeed, that
contention has so little basis in the record as to be wholly
unpersuasive.

    The burden of proof rests with petitioner to show the
fraud by clear and convincing evidence, and it must consist
of more than garden-variety nondisclosure. Stonehill,
660 F.3d at 443, 445. Pizzuto has no specific evidence of any
knowledge on the part of the lawyers representing the state
20                  PIZZUTO V. RAMIREZ

before the federal courts of the various alleged trial
improprieties that Pizzuto says took place, and he relies
instead on a series of allegations and implications. It takes
more than “say so” to transform routine advocacy by the
state’s lawyers of its position into a fraud on the court.

    Even if the allegations of improper behavior at the trial
level were assumed to be truthful, Pizzuto has not offered
evidence that the state’s failure to disclose those events
constitutes the kind of “unconscionable plan or scheme which
is designed to improperly influence the court in its decision.”
Toscano, 441 F.2d at 934.

    Pizzuto argues that the state’s failure to investigate and
turn over potentially exculpatory information during the
federal habeas corpus proceedings is the kind of fundamental
error that undermines the entirety of the proceeding. But the
Supreme Court has held that the state’s constitutional
obligation to disclose exculpatory evidence to criminal
defendants does not apply on collateral review. Dist. Att’y’s
Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68
(2009).

    Pizzuto has not shown by clear and convincing evidence
that a fraud was perpetrated on the federal district court. We
agree with the district court’s denial of Pizzuto’s motion
under Rules 60(b) and 60(d) for relief based on fraud on the
court.

     AFFIRMED.
