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Rule 60(b) and Successive Habeas Petitions

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In United States v. Buenrostro, No. 08-16185, the Ninth Circuit shoots down an attempt to use FRCP 60(b) to evade AEDPA's successive petition rule.  This is a federal-prisoner §2255 case, but the statutes for state and federal prisoners are essentially the same for this purpose, and the court applies Gonzalez v. Crosby, 545 U.S. 524, 531 (2005).

Buenrostro wanted to use 60(b) to add a claim of ineffective assistance that he says he didn't know about before.  Nope. 

Buenrostro misunderstands the meaning of Gonzalez.  To show a defect in the integrity of his first § 2255 proceeding, Buenrostro must point to something that happened during that proceeding that rendered its outcome suspect. We have explained that "[f]raud on the court must involve an unconscionable plan or scheme which is designed to improperly influence the court in its decision." Abatti v. Comm'r, 859 F.2d 115, 118 (9th Cir. 1988) (internal quotation marks omitted).

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