United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Jawad “Joe” Quassani moves to dismiss his counsel
and appoint new counsel and also moves the court to
reconsider its denial of his 28 U.S.C. § 2255 petition.
ECF Nos. 190, 194. The government opposed Quassani's
motion for new counsel, to which no reply was filed. ECF No.
192. After considering the parties' arguments, the court
dismisses both of Quassani's motions for lack of
was convicted of one count of conspiracy to commit wire fraud
and mail fraud under 18 U.S.C. § 1349, two counts of
wire fraud under 18 U.S.C. § 1343, and two counts of
mail fraud under 18 U.S.C. § 1341. ECF No. 89. He was
sentenced to a thirty-seven-month term of imprisonment as a
result. ECF No. 127. On appeal, the Ninth Circuit affirmed
both his conviction and his sentence. ECF Nos. 142, 146;
United States v. Quassani, 593 Fed. App'x 627
(9th Cir. 2014). Quassani then filed a petition to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255, alleging ineffective assistance of counsel. ECF No.
149. After holding an evidentiary hearing, the court denied
the petition and denied Quassani a certificate of
appealability. ECF Nos. 155, 188.
being denied a certificate of appealability and failing to
seek authorization from the Ninth Circuit to file additional
petitions, Quassani filed two additional motions. He first
moves to dismiss his current counsel and appoint a third
court-appointed counsel to assist in further defending his
case on its merits. ECF No. 190. Second, he moves for the
court to reconsider the denial of his 28 U.S.C. § 2255
petition. ECF No. 194. The government opposed the motion for
new counsel, arguing it serves as a successive habeas
petition that was filed without authorization. ECF No. 192.
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) prohibits the filing of a successive 28
U.S.C. § 2255 petition unless the movant can demonstrate
(1) a new rule of constitutional law or (2) “that no
reasonable factfinder would have found [the movant] guilty of
the offense.” 28 U.S.C. §§ 2255(h)(1)-(h)(2).
Federal Rule of Civil Procedure 60(b)-which allows a court to
grant a party relief from a final judgment or
order-“applies in habeas corpus proceedings under [28
U.S.C. § 2255] only ‘to the extent that [it is]
not inconsistent with' applicable federal statutory
provisions and rules.” See Gonzalez v. Crosby,
545 U.S. 524, 531 (2005); see also United States v.
Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (holding
that Gonzalez applies to Rule 60(b) motions brought
in 28 U.S.C. § 2255 proceedings).
determine if a Rule 60(b) motion is inconsistent with the
federal statutory provisions and rules applied to 28 U.S.C.
§ 2255 proceedings, a court first must determine whether
the motion contains a “claim.” Id.
(citing Gonzalez, 545 U.S. at 530). In this context,
a claim includes the presentation of new evidence to support
a claim previously litigated. Gonzalez, 545 U.S. at
531. If the motion contains a claim, the court must treat it
as a successive 28 U.S.C. § 2255 petition.
Buenrostro, 638 F.3d at 722; see also
Gonzalez, 545 U.S. at 531 (stating a Rule 60 motion
“that seeks vindication of [a substantive claim for
habeas relief] is, if not in substance a ‘habeas corpus
application, ' at least similar enough to subject
it” to the additional restrictions applied to
successive habeas petitions).
district court must dismiss successive habeas petitions for
lack of jurisdiction if the petitioner fails to obtain
authorization to file from the appropriate court of appeals.
Burton v. Stewart, 549 U.S. 147, 149 (2007); see
also U.S. v. Reyes, 358 F.3d 1095, 1097 (9th Cir. 2004)
(requiring certification pursuant to 28 U.S.C. § 2244
for a successive petition under 28 U.S.C. § 2255).
seeks reconsideration of the denial of his 28 U.S.C. §
2255 petition and the appointment of a new court-appointed
counsel to aid him in further defending his case, presenting
evidence that allegedly was not presented at his trial or at
his subsequent evidentiary hearing. ECF Nos. 190, 194.
Because both of Quassani's motions ultimately seek relief
from the court's denial of his 28 U.S.C. § 2255
petition, the court construes both motions as Rule 60(b)
motions. Accordingly, under Gonzalez, Quassani's
motions must apply in a manner that is not inconsistent with
the applicable federal statutory provisions and rules.
court begins by determining whether Quassani's motions
include a “claim” as defined in the context of 28
U.S.C. § 2255 proceedings. Quassani asserts a claim
because he presents evidence to support his original
ineffective-assistance-of-counsel claim. But his
ineffective-assistance-of-counsel claim was previously
litigated by way of his original 28 U.S.C. § 2255
petition and the related evidentiary hearing. After the court
dismissed the claim, Quassani filed the instant motions. The
court must therefore treat the instant motions as successive
28 U.S.C. § 2255 petitions.
court next considers whether Quassani's motions apply in
a manner that is consistent with the applicable federal
statutory provisions and rules. They do not. Quassani failed
to obtain authorization from the Ninth Circuit to file a
successive petition under 28 U.S.C. § 2255. The court
therefore lacks jurisdiction to consider the unauthorized
motions and dismisses them accordingly.
rules governing 28 U.S.C. § 2255 proceedings require a
district court to issue or deny a certificate of
appealability when entering a final order adverse to the
applicant. 28 U.S.C. § 2255 Governing Rule 11(a). A
petitioner must receive a certificate of appealability in
order to proceed with an appeal. 28 U.S.C. § 2253(c)(1).
To receive a certificate of appealability, the petitioner
must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To
make a substantial showing of the denial of a constitutional
right, the petitioner must show “that reasonable
jurists could debate whether the ...