Adam Gordy v. DEBBIE ASUNCION, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM GORDY,
Petitioner,
v.
DEBBIE ASUNCION, Warden,
Respondent.
No. 17-70402
ORDER*
Application to File Second or Successive
Motion Under 28 U.S.C. § 2254
Submitted February 9, 2018**
Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,*** District
Judge.
Adam Gordy was convicted in California state court in 2008 of various
noncapital crimes. In 2011, he filed a federal habeas petition, challenging his
* 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 Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
MAR 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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conviction principally on due process grounds. The 2011 petition was denied, and
Gordy now moves for authorization to file a second or successive habeas petition
under 28 U.S.C. § 2254. We deny his motion.
Under 28 U.S.C. § 2244(b)(2)(A), “[a] claim presented in a second or
successive habeas corpus application under section 2254 that was not presented in a
prior application shall be dismissed unless . . . the applicant shows 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.”
Gordy claims, in his proposed second habeas petition, that he received
ineffective assistance of counsel at his sentencing proceedings in violation of
Strickland v. Washington, 466 U.S. 668, 687 (1984). He argues that this claim was
“previously unavailable” because, when he filed his initial federal habeas petition in
2011, it was not clearly established in the Ninth Circuit that Strickland applied to
noncapital sentencing proceedings. See Davis v. Grigas, 443 F.3d 1155, 1158–59
(9th Cir. 2006); Cooper–Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005).
Gordy claims that this changed on February 9, 2016, when the Ninth Circuit held in
Daire v. Lattimore, 812 F.3d 766, 768 (9th Cir. 2016) (en banc) (per curiam), that
the Supreme Court had clearly established that the Strickland standard applies in a
noncapital sentencing proceeding. Gordy thus contends that his claim “relies on a

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new rule of constitutional law . . . that was previously unavailable.” § 2244(b)(2)(A).
This argument fails. As an initial matter, contrary circuit precedent does not
render a constitutional rule unavailable. See Bousley v. United States, 523 U.S. 614,
623 (1998) (“[F]utility cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time.” (internal quotation
marks omitted)). Moreover, the Supreme Court made clear on March 21, 2012, in
Lafler v. Cooper, 566 U.S. 156, 165 (2012), that the Strickland standard applies to
noncapital sentencing proceedings. See Daire, 812 F.3d at 767. Thus, even if we
assume Lafler constituted a “new rule of constitutional law,” Gordy had until March
21, 2013, to file a second habeas petition. See 28 U.S.C. § 2244(d)(1)(C). Because
Gordy did not seek leave to file his second petition until February 2017, it clearly
would be untimely, and authorizing its filing would be pointless.
DENIED.

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