Quincy Robertson v. James Walker

MEMORANDUM

Petitioner Quincy Robertson appeals from the district court’s order denying his 28 U.S.C. § 2254 habeas petition as second or successive. Reviewing de novo the district court’s determination that the § 2254 habeas petition is second or successive, Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir.2005), we conclude that Robertson’s petition should be construed as a motion for reconsideration under Federal Rule of Civil Procedure 60(b)(6) and therefore vacate the district court’s decision and remand.

1.The district court erred in finding that Robertson’s petition was second or successive.

On February 2, 2009, a three-judge panel of the Ninth Circuit issued a memorandum disposition affirming the district court’s denial of Robertson’s first § 2254 petition. Robertson v. Runnals, 310 Fed.Appx. 957 (9th Cir.2009) (unpublished). The panel rested its decision on California law as articulated by the California Supreme Court in Robertson’s direct appeal, People v. Robertson, 34 Cal.4th 156 , 17 Cal.Rptr.3d 604 , 95 P.3d 872 (2004), which allowed a conviction for second degree felony murder to be premised upon a jury’s determination that the killing was committed in the…