                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ALBERT CUNNINGHAM,                               No. 14-55883

              Petitioner - Appellant,            D.C. No. 2:02-cv-07170-GHK

  v.
                                                 MEMORANDUM*
RON DAVIS,**

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                            Submitted June 15, 2015***
                             San Francisco, California



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             Ron Davis is substituted for his predecessor as Acting Warden of the
California State Prison at San Quentin. Fed. R. App. P. 43(c)(2).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.

       Albert Cunningham appeals the district court’s finding that his “Motion for

Relief from Judgment or Order” brought pursuant to Rule 60(b)(6) was a disguised

second or successive habeas corpus petition filed without prior approval from this

Court, and that therefore the district court did not have jurisdiction to consider the

merits of the purported Rule 60(b) motion. We grant Cunningham a limited

Certificate of Appealability so as to permit our review of this appeal. Because we

agree that Cunningham’s purported Rule 60(b) motion is a second or successive

habeas corpus petition—filed without seeking permission from this Court under 28

U.S.C. § 2244(b)(3)(A) to file such a petition—we affirm the district court’s denial

of relief.

       “Habeas corpus petitions cannot utilize a Rule 60(b) motion to make an end-run

around the requirements of AEDPA or to otherwise circumvent that statute’s

restrictions on second or successive habeas corpus petitions.” Jones v. Ryan, 733 F.3d

825, 833 (9th Cir. 2013) (internal quotation marks omitted). Motions properly

brought under Rule 60(b) generally attack the integrity of the federal habeas

proceedings, whereas motions that present “claims . . . constitut[ing], in effect, new

requests for relief on the merits” are viewed as disguised second or successive habeas

corpus petitions. Id. at 834; see also Gonzalez v. Crosby, 545 U.S. 524, 530 (2005)


                                          2
(“[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state

court’s judgment of conviction.”).

      Cunningham argues in his motion that the district court committed a procedural

error in “deciding the merits of the manipulation of evidence claim after having

determined that it was not properly raised and was thus not properly before the

court.”1 In his original habeas corpus petition, Cunningham raised a claim that the

prosecution in his state jury trial had improperly manipulated the evidence. After the

district court found that this claim was unexhausted, Cunningham filed his First

Amended Petition.

      Although the parties dispute whether the manipulation of evidence claim was

included in the First Amended Petition, the district court held that it was not. Under

28 U.S.C. § 2254(b)(2)—which states that “[a]n application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State”—the district court denied the

manipulation of evidence claim on the merits. On appeal, we affirmed in toto the



      1
         Cunningham argued, as a second basis for his purported Rule 60(b) motion,
that the district court “arriv[ed] at a merits determination in contravention of the
procedural rules set forth in Cullen v. Pinholster,” 131 S. Ct. 1388 (2011). The
district court held that this argument was a claim that may only be brought as part
of a second or successive habeas corpus petition. Because Cunningham does not
challenge this ruling in his appeal, we decline to address the issue.

                                           3
district court’s denial of Cunningham’s petition for a writ of habeas corpus.

Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir. 2013). We decline the invitation

to revisit it here.

       Cunningham now asserts that the district court’s decision on the merits of the

manipulation of evidence claim was procedurally defective because, by holding that

the claim was not properly raised in the First Amended Petition (as opposed to holding

again that the claim was unexhausted), the court lacked jurisdiction to reach the

claim’s merits. Cunningham argues that the district court should have instead

“dismiss[ed] the claim or permit[ted] Cunningham an opportunity to amend the

petition and attempt to properly plead the claim so that the court could decide it on the

merits.” In his purported Rule 60(b) motion, Cunningham asked the district court “to

vacate the judgement [sic] and to reopen the case for further proceedings in

connection with the manipulation of evidence claim.”

       In doing so, Cunningham effectively seeks another bite at the apple. He hopes

that a finding that the district court improperly reached the merits of his manipulation

of evidence claim will lead to readjudication of the claim. This is the very definition




                                           4
of a second or successive habeas corpus petition.2 See Jones, 733 F.3d at 836

(“[Petitioner] is in essence arguing that he deserves a second chance to have the merits

determined favorably in the context of a second or successive 28 U.S.C. § 2254

habeas corpus petition.”).

      Given the absence of a 28 U.S.C. § 2244(b)(3)(A) request, the district court

correctly held that it did not have jurisdiction to entertain Cunningham’s disguised

second or successive habeas corpus petition. See id. at 838. Unlike in Jones, where

we construed the petitioner’s appeal as a request for authorization to file a second or

successive habeas corpus petition, see id. at 841, Cunningham expressly disavowed

his desire to have this Court construe his appeal as such a request. We therefore

affirm the district court’s order denying Cunningham’s “Motion for Relief from

Judgment or Order.”

      AFFIRMED.




      2
        Because we conclude that Cunningham’s Rule 60(b) motion is a disguised
second or successive habeas corpus petition, we need not reach the issue of
whether a deficiently pled claim may be addressed in the same manner as an
unexhausted claim under 28 U.S.C. § 2254(b)(2), or whether the district court’s
prior exhaustion ruling placed the manipulation of evidence claim within the ambit
of § 2254(b)(2).

                                           5
