Esmeraldo CIRIACO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 514 F. App'x 60

SUMMARY ORDER Appellant Esmeraldo Ciríaco, proceeding pro se, appeals from the district court’s order rejecting his Federal Rule of Civil Procedure 60(b)(6) motion for relief from the district court’s earlier order denying his 28 U.S.C. § 2255 habeas petition. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review a district court’s ruling on a Rule 60(

b) motion for abuse of discretion. See Rodriguez v. Mitchell, 252 F.3d 191, 200 (2d Cir.2001). “Under this standard, we must affirm the grant or denial of vacatur, unless the ruling [is based] on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (internal quotation marks omitted). With the exception of Ciriaco’s ineffective assistance of counsel claim, all of the claims asserted by Ciríaco in his Rule 60(

b) motion are barred because Ciríaco failed to raise them on direct appeal and has not shown cause and prejudice for that failure. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Even if we were to treat Ciriaco’s Rule 60(

b) motion as an independent § 2255 habeas claim, see, e.g., Negron v. United States, 394 Fed. Appx. 788, 792-794 (2d Cir.2010) (summary order), the district court correctly denied the motion. Ciriaco’s new claims for habeas relief, including his ineffective assistance of counsel claim, would all be barred as untimely because the new “habe-as petition” (ie., the Rule 60(

b) motion) was not filed within one year of the judgment of conviction becoming final. See 28 U.S.C. § 2255(f); Clay v. United States, 537 U.S. 522, 527-28, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). We have considered all of Ciriaco’s remaining arguments and find them to be without merit. For the foregoing reasons, the order of the district court is hereby AFFIRMED. . Normally, under similar circumstances, the district court would have the option of treating the improper Rule 60(

b) motion as a second or successive habeas petition and transferring it to the Court of Appeals for possible certification. See Gitten v. United States, 311 F.3d 529, 534 (2d Cir.2002). However, the Rule 60(

b) motion in this case is apparently not tantamount to a successive petition because it was filed before the denial of Ciria-co’s first § 2255 motion became final. See Whab v. United States, 408 F.3d 116, 120 (2d Cir.2005) (holding that habeas adjudication does not become "final until petitioner’s opportunity to seek review in the Supreme Court has expired’’).