                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JOSEPH RUDOLPH WOOD, III,                         No. 14-16380
              Petitioner-Appellant,
                                                     D.C. No.
                     v.                           4:98-cv-00053-
                                                       JGZ
 CHARLES L. RYAN; TERRY L.
 STEWART, Director; GEORGE
 HERMAN, Warden, Arizona State                       OPINION
 Prison - Eyman Complex,
             Respondents-Appellees.


        Appeal from the United States District Court
                 for the District of Arizona
        Jennifer G. Zipps, District Judge, Presiding

                    Submitted July 21, 2014*
                    San Francisco, California

                       Filed July 22, 2014

       Before: Sidney R. Thomas, Ronald M. Gould,
             and Jay S. Bybee, Circuit Judges.

                       Per Curiam Opinion


  *
    The panel unanimously concludes this case is suitable for decision
without oral argument.
2                         WOOD V. RYAN

                           SUMMARY**


                           Death Penalty

   The panel affirmed the district court’s denial of motions
by Arizona state prisoner Joseph Rudolph Wood, III, whose
execution is set for July 23, 2014, for relief from judgment
pursuant to Fed. R. Crim. P. 60(b), for a stay of execution,
and to amend or alter judgment pursuant to Fed. R. Crim. P.
59(e).

    The panel held that the district court did not abuse its
discretion in denying the Rule 60(b) motion in which Wood,
citing Martinez v. Ryan, 132 S. Ct. 1309 (2012), asserted he
is entitled to relief from judgment based on post-conviction
counsel’s ineffective assistance, which prevented the district
court from reaching the merits of three of his claims. The
panel held the district court was without jurisdiction to
consider Wood’s claim regarding the denial of his motion for
evidentiary development, which is in substance an
unauthorized second or successive habeas petition.

    The panel held that the district court did not abuse its
discretion in denying Wood’s Rule 59(e) motion, which
merely asked the district court to reconsider the judgment
entered the previous day on the Rule 60(b) motion.

    The panel held that the district court did not abuse its
discretion in denying Wood’s motion for a stay of execution,
and denied his request for a stay of execution from this court.

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

                            COUNSEL

Jon M. Sands, Federal Public Defender, Dale A. Baich &
Jennifer Y. Garcia, Assistant Federal Public Defenders,
District of Arizona, Phoenix Arizona; Julie S. Hall, Oracle,
Arizona, for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Jeffrey A. Zick, Chief
Counsel, John Pressley Todd, Special Assistant Attorney
General, Lacey Stover Gard & Jeffrey L. Sparks, Assistant
Attorneys General, State of Arizona, Phoenix, Arizona, for
Defendants-Appellees.




                             OPINION

PER CURIAM:

    Joseph Wood, an Arizona state prisoner whose execution
is set for July 23, 2014, appeals the district court’s denial of
his motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60(b), his motion for a stay of execution,
and his motion to amend or alter judgment pursuant to
Federal Rule of Civil Procedure 59(e). We affirm.1




  1
    The background is taken substantially from the district court order
denying Wood’s Rule 60(b) motion.
4                        WOOD V. RYAN

                                  I

    Wood shot and killed his estranged girlfriend, Debra
Dietz, and her father, Eugene Dietz, in 1989.2 Following a
jury trial, Wood was convicted of two counts of first degree
murder and two counts of aggravated assault. He was
sentenced to death for each murder. The Arizona Supreme
Court affirmed the convictions and sentences in 1994. State
v. Wood, 881 P.2d 1158 (Ariz. 1994). The United States
Supreme Court denied certiorari in 1995. Wood v. Arizona,
515 U.S. 1147 (1995).

    Wood filed his first state petition for post-conviction
relief under Rule 32 of the Arizona Rules of Criminal
Procedure (“PCR”) in 1992. The trial court stayed the
petition pending the outcome of the direct appeal to the
Arizona Supreme Court. He filed a new PCR petition in
1996. The trial court denied the petition on June 6, 1997.
The Arizona Supreme Court denied a petition for review on
November 14, 1997.

   Wood filed a petition for writ of habeas corpus on
February 3, 1998, and an amended petition on November 30,
1998. On March 22, 2006, the district court issued an order
addressing the procedural status of Wood’s claims. The court
addressed the remaining claims on the merits and denied
habeas relief in an order and judgment dated October 25,
2007. Wood appealed to this Court. In August 2012, Wood
moved to remand the case to the district court, arguing
pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012), that his


    2
    The factual details are described in the Arizona Supreme Court’s
opinion on direct appeal. State v. Wood, 881 P.2d 1158, 1165–66 (Ariz.
1994).
                       WOOD V. RYAN                          5

post-conviction counsel’s ineffective performance constituted
cause for the default of his ineffective assistance of counsel
claims. We denied the motion. On September 10, 2012, we
affirmed the district court’s denial of habeas relief. Wood v.
Ryan, 693 F.3d 1104 (9th Cir. 2012). The United States
Supreme Court denied certiorari on October 7, 2013. Wood
v. Ryan, 134 S. Ct. 239 (2013).

   The State filed a motion for a warrant of execution on
April 22, 2014. The warrant was granted on May 28, and
execution was set for July 23, 2014.

    On July 17, 2014, Wood filed in district court a motion
for relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b) and a motion for a stay of execution. The
district court denied the motions on July 20, 2014. Wood
then filed a motion to amend or alter a judgment pursuant to
Federal Rule of Civil Procedure 59(e) on July 21, 2014, and
requested a Certificate of Appealability as to the prior denial
of the Rule 60(b) motion. The district court denied the Rule
59(e) motion on July 21, 2014, but granted a Certificate of
Appealability as to both orders.

    We review the district court’s denial of Rule 60(b) and
59(e) motions under the deferential abuse of discretion
standard. Phelps v. Alameida, 569 F.3d 1120, 1131 (9th Cir.
2009) (Rule 60(b)); Zimmerman v. City of Oakland, 255 F.3d
734, 737 (9th Cir. 2001) (Rule 59(e)).

                              II

    The district court did not abuse its discretion in denying
the Rule 60(b) motion. Rule 60(b) “allows a party to seek
relief from a final judgment, and request reopening of his
6                      WOOD V. RYAN

case, under a limited set of circumstances.” Gonzalez v.
Crosby, 545 U.S. 524, 528 (2005). Rule 60(b)(6) 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). The party seeking relief under Rule
60(b)(6) must show “‘extraordinary circumstances’ justifying
the reopening of a final judgment.” Gonzalez, 545 U.S. at
535 (quoting Ackermann v. United States, 340 U.S. 193, 199
(1950)). Such circumstances “rarely occur in the habeas
context.” Id.

    Citing Martinez, Wood asserts he is entitled to relief from
judgment based on the ineffective assistance of his post-
conviction counsel, which prevented the district court from
reaching the merits of three of his claims. Wood contends
that the Martinez decision is an extraordinary circumstance
justifying relief as to his three procedurally defaulted claims.
To prevail, Wood must show not only that the Martinez
decision is an extraordinary circumstance justifying relief, but
also that he can succeed under Martinez. Lopez v. Ryan,
678 F.3d 1131, 1137 (9th Cir. 2012).

    We have carefully reviewed the district court opinion.
Under our deferential standard of review, we cannot say that
the district court abused its discretion in denying the Rule
60(b) motion substantially for the reasons stated in the district
court opinion.

    We also see no abuse of discretion in the district court’s
denial of Wood’s claim regarding the denial of his motion for
evidentiary development. Wood raised sentencing counsel’s
ineffectiveness in Claim X.C.3 of his habeas petition. The
district court denied the ineffectiveness claim on the merits
and also denied Wood’s request for evidentiary development
                       WOOD V. RYAN                            7

as to that claim. We affirmed the district court’s merits
decision and denial of evidentiary development. Wood,
693 F.3d at 1122. Wood now argues that the denial of
evidentiary development is an extraordinary circumstance
justifying relief from judgment. The district court denied the
Rule 60(b) motion as to this claim because it is in substance
an unauthorized second or successive habeas petition, and we
agree.

    A Rule 60(b) motion is proper when it “attacks, not the
substance of the federal court’s resolution of a claim on the
merits, but some defect in the integrity of the federal habeas
proceedings.” Gonzalez, 545 U.S. at 532. Wood argues that
he is not challenging the substance of the district court’s prior
ineffectiveness ruling, but instead that he is challenging the
denial of evidentiary development designed to substantiate
that claim. However, a Rule 60(b) motion constitutes a
second or successive petition if it “seek[s] leave to present
‘newly discovered evidence’ in support of a claim previously
denied.” Gonzalez, 545 U.S. at 531 (internal citation
omitted); see also Post v. Bradshaw, 422 F.3d 419, 424–25
(6th Cir. 2005) (“all that matters is [whether petitioner] is
seeking vindication of or advancing a claim by taking steps
that lead inexorably to a merits-based attack on the prior
dismissal of his habeas petition.” (internal alterations and
quotation marks omitted)). The substance of the claim Wood
asserts was previously decided on the merits, and a Rule
60(b) motion that seeks leave to develop new evidence as to
the claim must be denied as an unauthorized second or
successive petition. Gonzalez, 545 U.S. at 531. Therefore,
the district court was without jurisdiction to consider it. See
Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)
(“When the AEDPA is in play, the district court may not, in
the absence of proper authorization from the court of appeals,
8                      WOOD V. RYAN

consider a second or successive habeas application.” (internal
quotation marks omitted)); see also Burton v. Stewart,
549 U.S. 147, 152–53 (2007) (determining that district court
lacked jurisdiction to consider second or successive habeas
application).

                              III

    The district court did not abuse its discretion in denying
Wood’s Rule 59(e) motion to alter or amend its judgment
denying Rule 60(b) relief. In his motion, Wood reargued that
the ineffectiveness of sentencing counsel issue was not an
unauthorized second or successive petition. As the district
court correctly observed, a Rule 59(e) motion is an
“extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources.” Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). A district court may grant a Rule 59(e) motion if it
“‘is presented with newly discovered evidence, committed
clear error, or if there is an intervening change in the
controlling law.’” McDowell v. Calderon, 197 F.3d 1253,
1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St.
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
Wood’s Rule 59(e) motion merely asked the district court to
reconsider the judgment it entered the previous day. The
district court did not abuse its discretion in denying the
motion.

                              IV

    Wood also seeks a stay of his execution from this court.
“[A] stay of execution is an equitable remedy. It is not
available as a matter of right, and equity must be sensitive to
the State’s strong interest in enforcing its criminal judgments
                       WOOD V. RYAN                          9

without undue interference from the federal courts. Thus,
like other stay applicants, inmates seeking time to challenge
the manner in which the State plans to execute them must
satisfy all of the requirements for a stay, including a showing
of a significant possibility of success on the merits.” Hill v.
McDonough, 547 U.S. 573, 584 (2006) (internal citations
omitted). Wood has failed to show “a significant possibility
of success on the merits.” Additionally, the public interest in
the enforcement of the judgment and the filing of the Rule
60(b) motion on the eve of the execution both weigh against
issuing a stay. See Cook v. Ryan, 688 F.3d 598, 612–13 (9th
Cir. 2012). We must therefore deny Wood’s request for a
stay.

                              V

    The district court did not abuse its discretion in denying
the Rule 60(b) motion, the Rule 59(e) motion, or the motion
for a stay of execution. Wood also fails to meet the
requirements for a stay of execution. The district court’s
judgment is affirmed. Wood’s motion for a stay of execution
is denied.

   AFFIRMED.
