NOT FOR PUBLICATION FILED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.

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