                                                                           FILED
                               FOR PUBLICATION                              JUL 22 2014

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



                            FOR THE NINTH CIRCUIT


JOSEPH RUDOLPH WOOD, III,                        No. 14-16380

              Petitioner - Appellant,            D.C. No. 4:98-cv-00053-JGZ

  v.
                                                 OPINION
CHARLES L. RYAN; TERRY L.
STEWART, Director; GEORGE
HERMAN, Warden, Arizona State 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

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

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


        *
             The panel unanimously concludes this case is suitable for decision
without oral argument.
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

                                          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.


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

                                         -2-
      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 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


                                         -3-
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 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.




                                          -4-
      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 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


                                          -5-
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


                                          -6-
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, 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)




                                          -7-
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

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




                                          -8-
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.




                                          -9-
                                     Counsel

Jon M. Sands, Federal Public Defender, Dale A. Baich & Robin C. Conrad,
Assistant Federal Public Defenders, District of Arizona, Phoenix Arizona, on
behalf of Plaintiff-Appellant.

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




                                       -10-
