Dennis Leroy Hamilton v. A.C. Newland, Warden

Dennis Leroy Hamilton appeals the district court’s denial of his motion under Federal Rule of Civil Procedure 60(b)(6) in which he sought relief from the district court’s order denying his petition for habe-as corpus, 28 U.S.C. § 2254 . Although the motion was clearly styled as one pursuant to 60(b)(6), the district court treated the motion as a second or successive habeas petition that lacked the required approval of this court. 28 U.S.C. § 2244 (b)(3)(A); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.2001). It denied the motion on that basis.

Courts have struggled with the issue of when a Rule 60(b) motion brought by a habeas petitioner should be treated as a second or successive petition. Three schools of thought have emerged: some courts have decided that Rule 60(b) motions are never second or successive petitions; others have decided that they always are; and still others have taken a moderate approach that proceeds with a case by case examination of the relief sought in the Rule 60(b) motion. See Rodwell v. Pepe, 324 F.3d 66, 67, 69-71 (1st Cir.2003) (surveying cases from different circuits); Harper v. Vaughn, 272 F.Supp.2d 527, 531 (E.D.Pa.2003) (same). Because the…