195 F.3d 520 (9th Cir. 1999)
IGNACIO ALBERTO ORTIZ, Petitioner-Appellant,vs.TERRY STEWART, Director, Arizona Department of Corrections, et al., Respondents-Appellees.
No. 99-99027
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted October 25, 1999 San Francisco, CaliforniaFiled October 25, 1999

Sean Bruner,  Bruner & Upham,  and Kelley J. Henry, Deputy Federal Public Defender, Tucson, Arizona, for Petitioner Appellant.
Kent E. Cattani and Jack Roberts, Assistant United States Attorneys, Phoenix, Arizona, for Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona; William D. Browning, Senior District Judge, Presiding
Before: D.W. NELSON, BRUNETTI, HAWKINS, Circuit Judges.
PER CURIAM:


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Igancio Alberto Ortiz seeks a Certificate of Appeal ability  and a Stay of Execution pursuant to 28 U.S.C. S 2253 permitting him to appeal the district court's order denying his Rule 60(b)


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motion.  We conclude that a Certificate of Appeal ability and a  Stay should not issue because Ortiz has not made the substantial showing required by 28 U.S.C. S 2253(c)(2) that he has been


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denied a constitutional right.


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First, we agree with the district court that Ortiz's Rule 60(b) motion must be treated as a successive habeas petition and dismissed under the Antiterrorism and Effective Death Penalty Act  ("AEDPA") because his ineffective assistance of counsel claim presented by the Rule 60(b) motion was previously raised and considered in his first habeas petition.  See 28 U.S.C. S  2244(b)(1);  Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir. 1998).  Although this court has recognized in dicta that there  may be exceptions under which Rule 60(b) motions are not properly treated as successive habeas petitions, see Thompson,151 F.3d at  921 n.3, Ortiz has not shown that such exception applies here.


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Second, the district court correctly determined that even if dismissal is not mandated under 28 U.S.C. S 2244(b)(1), the Rule  60(b) motion must be denied on its merits.  Relying on the exception to procedural default contained in 28 U.S.C. S  2264(a)(1), Ortiz contends that his failure to properly raise his ineffective assistance of sentencing counsel claim in state court


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resulted from Arizona's appointment of the same counsel for  sentencing and post-conviction proceedings in violation of 28  U.S.C. S 2261(d), part of Chapter 154 of the ADEPA.  According to Ortiz, Chapter 154 applies because Arizona has recently asserted that it is an opt-in state under the ADEPA.


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Section 2261(a), part of Chapter 154, provides: "This  chapter shall apply to cases arising under section 2254 brought  by prisoners in State custody who are subject to a capital sentence.  It shall apply only if the provisions of subsections (b) and (c) are satisfied."  Subsection (b) applies, in turn, "if a State establishes . . . a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of  competent counsel in State post-conviction proceedings brought by  indigent prisoners whose capital convictions and sentences have  been upheld on direct appeal . . ."  Here, the record indicates at most that Arizona has only recently established a mechanism  for the appointment, compensation, and payment of post-conviction  counsel as described in section 2261(b).  Thus, Ortiz cannot  claim that the appointment of his post-conviction counsel in 1983  was made pursuant to such a mechanism and his contention that  Arizona violated section 2261(d) in appointing his post conviction counsel must fail.


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Section 2261(d) provides: "No counsel appointed pursuant to  subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner  at trial or on direct appeal in the case for which the appointment is made unless the prisoner and counsel expressly  request continued representation."  Since Ortiz's post-conviction  counsel could not have been appointed "pursuant to subsections  (b) and (c)" because the mechanism envisioned in those  subsections was not established by Arizona until recently, there  is no violation of section 2261(d).  Without a violation of  section 2261(d), Ortiz cannot satisfy the default exception  contained in section 2264(a)(1).


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Accordingly, the request for a Certificate of Appeal ability and Stay are DENIED.

