United States v. William Wise ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-15062
Plaintiff-Appellee, D.C. Nos.
3:12-cr-00111-EMC-1
v. 3:12-cr-00642-EMC-1
WILLIAM J. WISE,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: HAWKINS and HURWITZ, Circuit Judges, and EATON,*** Judge.
William Wise pleaded guilty pursuant to a plea agreement to various federal
charges and was sentenced to 262 months imprisonment. He then filed a 28 U.S.C.
*
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).
***
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
§ 2255 motion, asserting that the government had breached the plea agreement by
failing to make a U.S.S.G. § 5K1.1 motion supporting a reduced sentence in
exchange for his cooperation. The district court denied the motion and we affirmed.
United States v. Wise, 740 F. App’x 558 (9th Cir. 2018).
Wise then filed a Federal Rule of Civil Procedure 60(b) motion in the district
court for relief from the judgment, arguing the district court ignored Santobello v.
New York, 404 U.S. 257 (1971), in rejecting the § 2255 motion. The district court
deemed the Rule 60(b) motion a second or successive petition under 28 U.S.C.
§ 2244(b) and denied it for lack of jurisdiction. Wise filed a notice of appeal, and
this Court remanded to the district court for the limited purpose of granting or
denying a certificate of appealability (“COA”). The district court granted a COA,
and this appeal followed.
1. The district court correctly held that Wise’s Rule 60(b) motion was a
second or successive habeas petition because it challenged the district court’s initial
resolution of his petition “on the merits.” See Gonzalez v. Crosby, 545 U.S. 524,
532 (2005). A second or successive petition can be filed in the district court only
upon permission of the court of appeals. See 28 U.S.C. § 2244(b)(3). Wise never
sought or obtained such permission. The district court therefore correctly denied his
motion. See Burton v. Stewart, 549 U.S. 147, 151–52 (2007) (per curiam) (stating
that failure to obtain authorization to file a second or successive petition is a
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jurisdictional bar).
2. Construing this appeal as an application for permission to file a second or
successive § 2255 motion, we deny it. A second or successive motion can be
approved for filing only when it contains “newly discovered evidence” or invokes a
“new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court.” 28 U.S.C. § 2255(h)(1)-(2). Wise’s Rule 60(b) motion simply
repeats arguments made in his § 2255 motion and rejected in our prior disposition,
and he has not made a prima facie showing under § 2255(h).
AFFIRMED; APPLICATION TO FILE A SECOND OR SUCCESSIVE
PETITION DENIED.
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