     Case: 11-50669    Document: 00512144677     Page: 1   Date Filed: 02/15/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                    FILED
                                                                 February 15, 2013

                                No. 11-50669                      Lyle W. Cayce
                              Summary Calendar                         Clerk



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

CARLOS ZUNIGA HERNANDES, also known as CACA, also known as Carlos
Zuniga Hernandez,

                                            Defendant-Appellant



                 Appeals from the United States District Court
                       for the Western District of Texas


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:
      Appellant Carlos Zuniga Hernandes is a federal prisoner who has pleaded
guilty to conspiracy to distribute and possess with the intent to distribute
cocaine and methamphetamine. After sentencing, Hernandes filed a motion
under 28 U.S.C. § 2255 claiming inter alia that his trial counsel represented him
while under a conflict of interest, because according to Hernandes, counsel was
referred to him by a co-defendant and the co-defendant paid a portion of the cost
of retaining counsel. The district court found that Hernandes had failed to show
a conflict of interest and thus denied the § 2255 motion. After the district court
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                                  No. 11-50669

denied Hernandes a certificate of appealability, he filed a motion for relief from
judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure. The
motion consisted entirely of his recapitulated third-party beneficiary conflict of
interest argument. The district court denied the motion, finding inter alia that
Hernandes’s allegations were insufficient to raise a fact issue warranting a
hearing. Hernandes filed a notice of appeal, and the district court again denied
him a COA.
      This Court granted a COA, in relevant part on the issue of whether
Hernandes’s Rule 60(b) motion presents a successive habeas petition within the
meaning of Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005). We
conclude that it does, and thus the district court was not permitted to consider
the motion. Accordingly, we DISMISS this appeal.
      Rule 60(b) provides that the district court “may relieve a party or its legal
representative from a final judgment, order, or proceeding for” any one of
certain enumerated grounds, including “any other reason that justifies relief.”
FED . R. CIV. P. 60(b)(6). However, where a Rule 60(b) motion advances one or
more substantive claims, as opposed to a merely procedural claim, the motion
should be construed as a successive § 2255 motion. Gonzalez, 545 U.S. at 532 &
n.4 (involving § 2254 petition); see United States v. Williams, 274 F. App’x 346,
347 (5th Cir. 2008) (applying Gonzalez to § 2255 motions). A defendant is
generally permitted only one motion under § 2255 and may not file successive
motions without first obtaining this Court’s authorization. 28 U.S.C. § 2255(h);
see United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).            Therefore, if
Hernandes’s Rule 60(b)(6) motion is to be construed as a successive § 2255
motion, the district court would have no jurisdiction to consider it.
      In Gonzalez, the Supreme Court distinguished between those Rule 60(b)
motions that “advance[] one or more ‘claims’” from Rule 60(b) motions that


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“attack[], 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.” 545
U.S. at 532, 125 S. Ct. at 2648. The former should be construed as successive
habeas petitions, whereas the latter are bona fide Rule 60(b) motions. Id.
Among the express types of motions that fit into the former category, the
Supreme Court included motions that “attack[] the federal court’s previous
resolution of a claim on the merits.” Id.1
       Here, Hernandes’s Rule 60(b) motion clearly went to the merits of his
habeas claim and thus should be construed as a successive habeas petition.
Hernandes’s motion consisted entirely of the third-party beneficiary conflict of
interest argument that he resurrected from his original § 2255 motion, which is
not a procedural argument but rather a substantive argument. Relatedly, the
district court’s finding that there was no conflict of interest, which precipitated
the Rule 60(b) motion, was the result of a merits determination; it was not the
result, for instance, of a procedural technicality that precluded a merits
determination.2 See In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (holding
that Rule 60(b) motion was a successive habeas petition because the motion “did
not preclude a merits determination on [the defendant’s] § 2255 motion; it was
the result of a merits determination”). Hernandes’s “Rule 60(b) motion is, in
fact, a § 2255 motion in disguise,” Washington, 653 F.3d at 1065, because it is


       1
        Notably, Gonzalez does not posit a bright-line principle that a Rule 60(b)(6) motion
is always, or never, a successive habeas petition. See 545 U.S. at 530–32, 125 S. Ct. at
2646–48; see also United States v. Washington, 653 F.3d 1057, 1060 (9th Cir. 2011), cert.
denied, 132 S. Ct. 1609 (2012) (“[T]he Supreme Court has not adopted a bright-line rule for
distinguishing between a bona fide Rule 60(b) motion and a disguised second or successive
§ 2255 motion[.]”). Therefore, we do not establish such a bright-line principle, but instead
only analyze this particular Rule 60(b) motion.
       2
        In particular, the district court found that “Hernandes’[s] § 2255 claims are without
legal merit, are refuted by the record, or are conclusory; therefore he is not entitled to §
2255 relief or a hearing.”

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precisely the sort of prohibited motion that “attacks the federal court’s previous
resolution of a claim on the merits.” Gonzalez, 545 U.S. at 532, 125 S. Ct. at
2648. Accordingly, Hernandes’s Rule 60(b) motion should be construed as an
unauthorized habeas petition within the meaning of Gonzalez, and the district
court is therefore prohibited from considering the motion.
      APPEAL DISMISSED.




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