FILED

NOT FOR PUBLICATION

NOV 20 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER JAMES LITTLE, No. 18-15971

Petitioner-Appellant, D.C. No. 2:06-cv-02591-FJM

v.

MEMORANDUM**

JOE PROFIRI*; ATTORNEY GENERAL

FOR THE STATE OF ARIZONA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding

Argued and Submitted October 22, 2019 San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.

Petitioner-Appellant Peter Little (“Little”) appeals the denial of his Federal Rule

of Civil Procedure 60(b) motion seeking to reopen his federal habeas proceeding

* Joe Profiri, Acting Director of the Arizona Department of Corrections, is substituted for Charles L. Ryan.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. based on a change of law resulting from Martinez v. Ryan, 132 S. Ct. 1309 (2012).1

Reviewing the denial for an abuse of discretion, Delay v. Gordon, 475 F.3d 1039,

1043 (9th Cir. 2007),2 we affirm.

Rule 60(b)(6) permits a party to request relief from final judgment only in

“extraordinary circumstances,” Lopez, 678 F.3d at 1135, and “[s]uch circumstances

‘rarely occur in the habeas context,’” Jones v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013)

(quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).3 A number of factors are to

be considered, including: (1) the change in the law, (2) the petitioner’s diligence in

pursuing his claim for relief, (3) whether reopening would upset the parties’ reliance

interest in the finality of the case, (4) the delay between the finality of the judgment

and the motion for relief, (5) the closeness of the relationship between the decision

1 Martinez altered existing law by holding that ineffective assistance of counsel during initial-review collateral proceedings could establish cause for a prisoner’s procedural default of a claim of ineffective assistance of trial counsel. 132 S. Ct. at 16–17. 2 Although appellate courts “may, in their discretion, decide the merits of a Rule 60(b) motion in the first instance on appeal,” Lopez v. Ryan, 678 F.3d 1131, 1135 (9th Cir. 2012) (internal citation omitted), we decline to exercise this discretion and review the district court’s analysis for an abuse of discretion, which is the ordinary course of action. 3 We agree with the district court that Little’s pro se Rule 60(b) motion is not an unauthorized second or successive petition because although it reiterates and at times expands on his underlying ineffective assistance claim, the motion effectively only seeks relief from procedural default of his previously-asserted claims via Martinez. See Gonzalez, 545 U.S. at 532–33 & n.4. 2 governing the original judgment and the subsequent decision that represents a change

in the law, and (6) comity. Phelps v. Alameida, 569 F.3d 1120, 1135–40 (9th Cir.

2009). These factors “do not present an exhaustive or mechanical list of

considerations,” but are “well-reasoned principles that should guide courts in

exercising their discretion.” Id. at 1140.

Although the magistrate judge and district court recognized that several of these

factors weighed in favor of reopening, they ultimately concluded that in balancing the

various interests, the lack of diligence and significant delay here outweighed the other

concerns. This was not an abuse of discretion.

Martinez was decided in March 2012, but Little did not file his Rule 60(b)

motion until January 2018. Little contends that he had been diligently—but

mistakenly—pursing remedies in state court to exhaust this claim. However, only one

of the petitions he filed in state court even mentions Martinez, and that was not filed

until August 2015, nearly three and a half years after Martinez was decided. In

contrast, this circuit’s first opinion addressing Martinez on appeal from a denial of a

Rule 60(b) motion was published in May 2012, only a couple of months after

Martinez was decided. Lopez, 678 F.3d at 1133.

The delay factor considers the amount of time that has elapsed between “the

finality of the [petitioner’s] judgment and the motion for Rule 60(b)(6) relief.”

3 Phelps, 569 F.3d at 1138 (internal quotation marks and citation omitted). This factor

represents the simple principle that a “change in the law should not indefinitely render

preexisting judgments subject to potential challenge.” Id. The delay here between

Little’s habeas petition becoming final in 2009 and the motion for Rule 60(b) relief

in 2018 is quite significant and far exceeds the shorter time frames this court has

previously addressed. See, e.g., Jones, 733 F.3d at 840; Lopez, 678 F.3d at 1136.4

The Supreme Court has cautioned that a change in law by itself does not justify

reopening, and that circumstances justifying Rule 60(b) relief “will rarely occur” in

the habeas context. Gonzalez, 545 U.S. at 535–37. Little was not particularly diligent

in pursuing his claim in either state or federal court following the Martinez decision,

and the extreme delay between the termination of his initial habeas case and the filing

of his Rule 60(b)(6) motion does not demonstrate the requisite “degree of promptness

that respects ‘the strong public interest in timeliness and finality.’” Phelps, 569 F.3d

at 1138 (internal citation omitted).

AFFIRMED.

4 The Phelps decision is too factually dissimilar to rely on for the delay issue because Phelps had filed an initial motion for reconsideration on identical grounds four months after his habeas petition became final, and this court treated his much later second motion for reconsideration as a renewed motion that related back to the first, and thus held there was only four months delay, which weighed strongly in his favor. 569 F.3d at 1138 & n.21. 4