                                                                               FILED
                                                                   United States Court of Appeals
                                       PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                        April 23, 2013

                                                                       Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                          Clerk of Court


In re: LEO D. GRAHAM,
                                                            No. 13-3082
             Movant.                              (D.C. No. 6:99-CR-10023-JTM-2)
                                                              (D. Kan.)


                                        ORDER


Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.

PER CURIAM.


      In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery.

He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255.

See United States v. Graham, 312 F. App’x 79 (10th Cir. 2008). He now moves for

authorization to file a second or successive § 2255 motion based on Missouri v. Frye,

132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012). We deny

authorization.

      Congress has placed strict limitations on second or successive § 2255 motions,

requiring that a movant obtain this court’s authorization before filing in district court.

See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler,

Mr. Graham must show that these decisions establish “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” Id. § 2255(h)(2). To date, however, every circuit court to

consider the question has held that Frye and Lafler do not establish a new rule of

constitutional law. See Gallagher v. United States, __ F.3d __, No. 13-547,

2013 WL 1235668, at *1 (2d Cir. Mar. 28, 2013) (per curiam); Williams v. United

States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States,

697 F.3d 1137, 1140 (9th Cir. 2012); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012)

(per curiam); Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir. 2012); In re

Perez, 682 F.3d 930, 932-34 (11th Cir. 2012) (per curiam). We substantially agree

with the reasoning of those decisions. We did not hold to the contrary in United

States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012).

      Both Frye and Lafler concern the Sixth Amendment right to the effective

assistance of counsel in the plea bargaining process. Frye held that counsel’s failure

to inform his client of a plea offer may constitute ineffective assistance of counsel.

132 S. Ct. at 1408, 1410-11. Lafler held that an attorney who rendered

constitutionally deficient advice to reject a plea bargain was ineffective where his

advice caused his client to reject the plea and go to trial, only to receive a much

harsher sentence. 132 S. Ct. at 1383, 1390-91. In each case, the Court reached its

decision by applying the well-established principles regarding the assistance of

counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).

See Frye, 132 S. Ct. at 1409-11; Lafler, 132 S. Ct. at 1384, 1390-91.




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      “[T]he Supreme Court’s language in Lafler and Frye confirm that the cases are

merely an application of the Sixth Amendment right to counsel, as defined in

Strickland, to a specific factual context.” Perez, 682 F.3d at 932; see also Hare,

688 F.3d at 879 (“The Frye Court merely applied the Sixth Amendment right to

effective assistance of counsel according to the test first articulated in Strickland

. . .”). Accordingly, “Lafler and Frye are not new rules because they were dictated

by Strickland.” Perez, 682 F.3d at 933; see also Buenrostro, 697 F.3d at 1140

(“Because the Court in Frye and Lafler repeatedly noted its application of an

established rule to the underlying facts, these cases did not break new ground or

impose a new obligation on the State or Federal Government.”).

      Moreover, “any doubt as to whether Frye and Lafler announced new rules is

eliminated because the Court decided these cases in the post conviction context.”

Perez, 682 F.3d at 933; see also Hare, 688 F.3d at 879. Lafler recognized that for a

federal court to grant habeas relief, the state court’s decision must be contrary to or

an unreasonable application of clearly established federal law, and it held that the

state court’s failure to apply Strickland was contrary to clearly established federal

law. See Lafler, 132 S. Ct. at 1390; see also Williams v. Jones, 571 F.3d 1086,

1090-91 (10th Cir. 2009) (recognizing Strickland as clearly established federal law

with regard to a habeas claim that counsel was constitutionally deficient when he

persuaded the applicant to reject a plea bargain). But where the law is clearly




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established, then the rule “must, by definition, have been an old rule,” not a new one.

Perez, 682 F.3d at 933; see also Hare, 688 F.3d at 879.

      Frye and Lafler do not satisfy § 2255(h)(2) because they do not establish a

new rule of constitutional law. Mr. Graham’s motion for authorization therefore is

denied. This denial of authorization “shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C.

§ 2244(b)(3)(E).




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