Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. No. CV-98-00726-EHC
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before FERGUSON, RYMER, and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Federal prisoner Dean Carl Pleasant appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion as successive. We review de novo the district court's denial of a section 2255 motion. See United States v. Valdez, 195 F.3d 544, 546 (9th Cir.1999). We have jurisdiction pursuant 28 U.S.C. § 2255, and we vacate and remand.
We grant Pleasant a certificate of appealability. See Nevius v. Summer, 105 F.3d 453, 458 (9th Cir.1996) (stating that we may grant a Certificates of appealability after district court has denied it).
The district court correctly construed Pleasant's "Petition for Writ of Habeas Corpus, F.R.C.P.; 60(b)" as a section 2255 motion. See Clark v. Lewis, 1 F.3d 814, 825 (9th Cir.1993) (treating Rule 60(b) motion as the equivalent of a second petition for habeas corpus). The district court then erroneously dismissed the motion as successive. The 2255 motion was not successive, because Pleasant's previous motion had been dismissed simply because his direct appeal was pending; it had never been reviewed on the merits. See Slack v.. United States, 120 S.Ct. 1595, 1600-01(2000).
We, therefore, vacate the district court's dismissal and remand for further proceedings.
Pleasant's motions for judicial notice and summary dismissal are denied.