U.S. v. Buenrosta, No. 08-16185 (3-23-11) (Per curiam with Graber, Kleinfeld, and Molloy, D.J. Mont.)

The petitioner is doing life for drug trafficking with two prior drug convictions. So, why didn't his lawyer allegedly present him with the plea deal for "only" 14 years? Was it true that his lawyer did not know petitioner was facing life? Sounds like IAC. However, we will never know the answers because the petitioner presented the claim in a second successive petition. The petitioner had been convicted at trial, appealed, and then filed a 2255 post-conviction IAC challenge. After that was denied, petitioner filed a Rule 60(b) claim stating that he just found out that his lawyer had withheld a plea from him, and this was new evidence. This was denied too. The 9th now affirms the denial. The Rule 60(b) motion is really designed for fraud on the court, or truly exceptional reasons about new evidence. This was not the case here, where in his first petition, petitioner had raised IAC, and the court had found deficiency due to counsel's errors, but the ineffectiveness was not prejudicial. The motion now does not allege some fraud or deficiency in the judicial machinery. Thus, the motion must be examined as a 2255 successive claim. Petitioner is barred from filing this successor claim because he does not meet 2255(h)'s requirements. Petitioner either had to show that the newly discovered evidence, taken into consideration with all the evidence, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty; or there was a new constitutional rule made retroactive to collateral review by the Supreme Court. That was not the situation here. However, petitioner argues that his second IAC claim, although ripe at the time, should be allowed because the evidence was not discovered until afterwards. The 9th declines to do so because AEDPA foreclosed such review with its narrow exceptions. Even where "compelling new evidence of a constitutional violation is discovered," unless it meets the innocent standard or new constitutional rule, it is barred.