Opinion
Civ. S-00-2790-DFL, Cr. S-97-0039-001-DFL.
August 4, 2006
ORDER
Defendant moves to reopen his 28 U.S.C. § 2255 motion under Fed.R.Civ.P. 60(b)(5). On November 27, 2001, the court denied his § 2255 petition. Petitioner argues that a change in the law allows him to challenge his sentence. Under Rule 60(b)(5), the court may relieve a party from final judgment, order, or proceeding if "the judgement has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Petitioner claims that Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519 (2004) implicitly overruled United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002), which held that Apprendi does not apply retroactively.
Allowing petitioner to reopen his § 2255 petition under Rule 60(b)(5) would impermissibly circumvent the requirement that a successive petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. See Gonzalez v. Crosby, 125 S.Ct. 2641, 2647-48 (2005). Therefore, the court DENIES petitioner's motion to reopen his § 2255 under Rule 60(b)(5).
IT IS SO ORDERED.