                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 15 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOHN F. FRIEDLANDER,                              No. 13-70918

              Petitioner,

  v.                                              ORDER*

UNITED STATES OF AMERICA,

              Respondent.


                      Application to File Second or Successive
                         Petition Under 28 U.S.C. § 2255

                            Submitted October 8, 2013**
                               Seattle, Washington

Before:      TASHIMA, GRABER, and MURGUIA, Circuit Judges.

       John Friedlander was charged as an adult in federal district court for a

murder committed when he was sixteen. On January 20, 1988, he pleaded guilty to

Second Degree Murder in violation of 18 U.S.C. § 1111(a), and Assault with Intent


       *     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this motion suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

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to Commit Murder in violation of 18 U.S.C. § 113(a). He was sentenced to life in

prison for the murder charge, and a concurrent term of twenty years for the assault

charge. In 1992, the district court denied his first pro se motion under 28 U.S.C.

§ 2255. Friedlander has now filed an application for leave to file a second or

successive motion under § 2255. We have jurisdiction under 28 U.S.C. § 2255(h).

      We may authorize the filing of a second or successive motion under § 2255

if, among other things, the application makes a prima facie showing that the

motion would “contain . . . 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. § 2255; 28 U.S.C. § 2244(b)(C). Friedlander contends that his sentence

is contrary to Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that a

mandatory sentence of life without the possibility of parole for a juvenile homicide

offender violates the Eighth Amendment. We need not decide whether Miller

announced a new, retroactive rule of constitutional law because, even if it did,

Friedlander’s application would fail.

      Miller is inapplicable because Friedlander was not sentenced to life without

parole. Friedlander admits that he “has seen the parole board approximately 8

time[s] . . . and [has] a forth coming [sic] hearing in February of 2014.”

      The application to file a second or successive motion under § 2255 is


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DENIED.




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