                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         FEB 05 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 13-35836

              Plaintiff - Appellee,              D.C. Nos. 9:07-cv-00118-DWM
                                                           9:99-cr-00018-DWM-1
 v.

JOHN LANNY LYNCH,                                MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                           Submitted February 2, 2016**
                               Seattle, Washington

Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.

      We dismiss Lynch’s appeal for lack of jurisdiction.

      The district court held that Lynch’s purported Rule 60(b) motion is actually

an unauthorized, second or successive habeas petition under 28 U.S.C. § 2255. For


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
us to entertain his appeal, Lynch needs a Certificate of Appealability (COA), see

Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 2013), and the district court refused

to grant him one. Because the district court’s disposition of his motion counts as a

dismissal on procedural grounds, id., Lynch can obtain a COA now only if he

shows (among other things) “that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling,” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

       We deny Lynch a COA because the district court was indisputably correct

that his Rule 60(b) motion is an unauthorized, second or successive § 2255

petition.

       First, the vast bulk of Lynch’s self-styled Rule 60(b) motion aims to

discredit our decision, on his direct appeal, that the prosecution put forth sufficient

evidence to convict him of violating the Hobbs Act, 18 U.S.C. § 1951. See United

States v. Lynch, 437 F.3d 902, 911 (9th Cir. 2006) (en banc) (per curiam). Such

allegations cannot form part of a legitimate Rule 60(b) motion because they have

nothing to do with the integrity of Lynch’s § 2255 proceeding. “Because the

gravamen of [Lynch’s] assertions go to the merits of his conviction, his Rule 60(b)

motion is, in fact, a § 2255 motion in disguise.” United States v. Washington, 653

F.3d 1057, 1065 (9th Cir. 2011).


                                           2
      Second, insofar as Lynch would have us believe that his original § 2255

petition stated a claim of ineffective assistance of appellate counsel that the district

court overlooked, we reject his premise. So-called “claim #2” in Lynch’s petition

does not, by any stretch, allege ineffective assistance of appellate counsel. Lynch

is simply attempting to raise “a new claim for relief, wholly independent of the

claims adjudicated in his first § 2255 proceeding.” United States v. Buenrostro,

638 F.3d 720, 723 (9th Cir. 2011). A novel claim like that may not proceed under

Rule 60(b); instead, it “must be treated as a § 2255 motion” subject to the

limitations on second or successive petitions set forth in § 2255(h). Id.

      Because jurists of reason would not debate the district court’s ruling that

Lynch’s Rule 60(b) motion constitutes an unauthorized, second or successive

petition for habeas corpus under § 2255, we deny Lynch a COA, and we dismiss

his appeal for lack of jurisdiction.

      DISMISSED.




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