TONY AMATI V. BRIAN WILLIAMS, No. 18-72277 (9th Cir. 2019)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 4 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT TONY RAY AMATI, No. U.S. COURT OF APPEALS 18-72277 Applicant, ORDER* v. 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. 2

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