John Friedlander v. United States

542 F. App'x 576

Opinion

ORDER **

John Friedlander was charged as an adult in federal district court for a murder committed when he was sixteen. On January 20, 1988, he pleaded guilty to Second Degree Murder in violation of 18 U.S.C. § 1111(a), and Assault with Intent to Commit Murder in violation of 18 U.S.C. § 113(a). He was sentenced to life in prison for the murder charge, and a concurrent term of twenty years for the assault charge. In 1992, the district court denied his first pro se motion under 28 U.S.C. § 2255. Friedlander has now filed an application for leave to file a second or successive motion under § 2255. We have jurisdiction under 28 U.S.C. § 2255(h).

We may authorize the filing of a second or successive motion under § 2255 if, among other things, the application makes a prima facie showing that the motion would “contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255; 28 U.S.C. § 2244(b)(0). Friedlander contends that his sentence is contrary to Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that a mandatory sentence of life without the possibility of parole for a juvenile homicide offender violates the Eighth Amendment. We need not decide whether Miller announced a new, retroactive rule of constitutional law because, even if it did, Friedlander’s application would fail.

Miller is inapplicable because Friedlan-der was not sentenced to life without parole. Friedlander admits that he “has seen the parole board approximately 8 time[s] ... and [has] a forth coming [sic] hearing in February of 2014.”

The application to file a second or successive motion under § 2255 is DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.