United States v. Washington

Patrick R. Fitzgerald, Assistant United States Attorney, Los Angeles, CA, for appellee United States of America.

Before: DIARMUID F. O'SCANNLAIN and SANDRA S. IKUTA, Circuit Judges, and LAWRENCE L. PIERSOL, Senior District Judge. [*]

IKUTA, Circuit Judge:

Fulton Leroy Washington has challenged (or attempted to challenge) his conviction four times: on direct appeal, in his first motion under 28 U.S.C. § 2255 , in a second § 2255 motion, and now in a motion purportedly under Rule 60(b)(4) of the Federal Rules of Civil Procedure. This appeal requires us to determine whether the district court had jurisdiction to hear Washington's self-styled Rule 60(b) motion, or whether the court should have dismissed it for lack of jurisdiction because it was actually a disguised third request for relief under § 2255 that did not meet the standard in § 2255(h) for second or successive motions brought under that section.

In November 1996, following a jury trial, Washington was convicted of conspiring to manufacture one kilogram or more of a substance containing phencyclidine (PCP) in violation of 21 U.S.C. §§ 841 (a)(1) and 846; possession of approximately eleven kilograms of…