                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        MAR 1 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ADAM GORDY,                                      No.   17-70402

                Petitioner,

 v.

DEBBIE ASUNCION, Warden,                         ORDER*

                Respondent.

                     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.
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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