Tony Ray Amati v. BRIAN WILLIAMS, Warden

NOT FOR PUBLICATION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

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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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