Tony Amati v. Brian Williams

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TONY RAY AMATI, No. 18-72277

Applicant,

v. ORDER*

BRIAN WILLIAMS, Warden,

Respondent.

Application to File Second or Successive Motion Under 28 U.S.C. § 2254

Submitted July 19, 2019** San Francisco, California

Before: PAEZ, RAWLINSON, and MURPHY,*** Circuit Judges

Tony Ray Amati (Amati) applies for leave to file a second or successive

habeas petition under 28 U.S.C. § 2254 (§ 2254). We have jurisdiction under 28

U.S.C. § 2244.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael Murphy, Senior Circuit Judge for the Tenth Circuit, sitting by designation. A habeas petitioner may be permitted to file a second or successive habeas

petition if, as relevant here: (1) the petitioner presents a new claim not previously

raised, and (2) the petitioner establishes that “the claim relies on 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. § 2244(b)(1)-(2); see also

Henry v. Spearman, 899 F.3d 703, 705 (9th Cir. 2018).

Amati seeks relief under Byford v. State, 994 P.2d 700 (Nev. 2000).

However, Amati’s conviction was not final when Byford was decided, and Amati

had the opportunity to include a Byford claim in his previous habeas petition in

state court. His failure to do so resulted in a procedural default of that claim. See

Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004). Consequently, the

current posture of Amati’s proceedings is one of procedural default rather than

retroactive application of case authority. See id. This procedural posture does not

meet the standard for permission to file a second or successive habeas petition. See

Henry, 899 F.3d at 705.

APPLICATION DENIED.