          United States Court of Appeals
                     For the First Circuit

No. 13-1343

                    CARLOS PÁGAN-SAN MIGUEL,

                          Petitioner,

                               v.

                         UNITED STATES,

                          Respondent.


            APPLICATION FOR LEAVE TO FILE A SECOND OR
         SUCCESSIVE MOTION PURSUANT TO 28 U.S.C. § 2255



                             Before

                 Howard, Thompson and Kayatta,
                        Circuit Judges.



     Carlos Págan-San Miguel pro se.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant U.S. Attorney.



                       November 20, 2013
       Per Curiam. Petitioner Carlos Pagan-San-Miguel seeks leave to

file a second or successive petition under 28 U.S.C. § 2255.                            He

relies upon the Supreme Court's recent decisions in Missouri v.

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

(2012), and upon Martinez v. Ryan, 132 S. Ct. 1309 (2012), and

Trevino v. Thaler, 133 S.Ct. 1911 (2013).                   However, none of those

cases      establishes         a   "new    rule    of   constitutional         law,    made

retroactive      to    cases       on   collateral      review,"   as    28    U.S.C.    §

2255(h)(2) requires.

       We agree with every other circuit to have considered the issue

that    neither       Frye     nor      Cooper    established      a    "new    rule    of

constitutional law." See In re Liddell, 722 F.3d 737, 738 (6th Cir.

2013)(per curiam)(citing cases).                  As the Seventh Circuit pointed

out, "the Court's language repeatedly and clearly spoke of applying

an established rule to the present facts" and both cases were

"decided    in    the      post-conviction         context,   where      state    courts

ordinarily are not held to proper application of new rules." Hare

v. United States, 688 F.3d 878, 879 (7th Cir. 2012).                      "The Supreme

Court in both cases merely applied the Sixth Amendment right to

effective assistance of counsel according to the test articulated

in   Strickland       v.     Washington,     466    U.S.   668,    686    (1984),       and

established in the plea-bargaining context in Hill v. Lockhart, 474

U.S. 52 (1985)."           Buenrostro v. United States, 697 F.3d 1137, 1140

(9th Cir. 2012).


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        We also join the circuits that have considered the question in

holding that Martinez did not announce a new rule of constitutional

law. See Jones v. Ryan, ___ F.3d ___, 2013 WL 5676467, *14 (9th

Cir.)(citing cases), cert. denied 2013 WL 5733725 (2013).                As the

Ninth       Circuit   explained,   "Martinez   'qualifie[d]         Coleman   by

recognizing a narrow exception' to that case's rule," and the Court

itself "characterized its decision in Martinez as an 'equitable

ruling,' and not a 'constitutional' one." Id.; see also Adams v.

Thaler, 679 F.3d 312, 323 n.6 (5th Cir. 2012)(same).                 Therefore,

petitioner's reliance upon Martinez and Trevino v. Thaler, supra,

(applying Martinez exception where a state's procedural framework

"makes it highly unlikely in a typical case that a defendant will

have a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal") is unavailing.

        Petitioner's    application   for   leave   to   file   a    second   or

successive motion pursuant to 28 U.S.C. § 2255 is denied.1




        1
      "Th[is] . . . denial of an authorization . . . to file a
second or successive application 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); see Lykus v. Corsini, 565
F.3d 1 (1st Cir. 2009).

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