                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSE LUIS BUENROSTRO,                     
                            Petitioner,
                                          
                                                  No. 12-71253
                 v.
                                                     ORDER
UNITED   STATES OF AMERICA,
                       Respondent.
                                          
          Application to File Second or Successive
              Petition Under 28 U.S.C. § 2255
          Submitted to Motions Panel July 9, 2012*

                      Filed October 9, 2012

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and
             Sandra S. Ikuta, Circuit Judges.


                            COUNSEL

Jose Luis Buenrostro, Mendota, California, filed the applica-
tion for leave to file a second or successive motion for the
petitioner.

No appearance on behalf of the respondent.




  *The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).

                               12195
12196             BUENROSTRO v. UNITED STATES
                            ORDER

   Petitioner Jose Luis Buenrostro was tried and convicted of
conspiracy to manufacture more than thirty-one kilograms of
methamphetamine. Because Buenrostro had two prior felony
drug convictions, the district court sentenced him to a manda-
tory minimum term of life imprisonment without parole. See
21 U.S.C. §§ 846, 851(d)(1), 841(a)(1), (b)(1)(A)(viii). We
affirmed Buenrostro’s conviction on direct appeal. See United
States v. Buenrostro, 163 F.3d 608 (9th Cir. 1998). He then
moved the district court to vacate his sentence under 28
U.S.C. § 2255, which the district court denied on the merits.

   After the district court concluded Buenrostro’s § 2255 pro-
ceeding, Buenrostro moved to reopen the proceeding under
Federal Rule of Civil Procedure 60(b) due to a newly discov-
ered ineffective assistance of counsel claim. According to
Buenrostro, his trial lawyer received a plea offer five months
before trial and had Buenrostro accepted that offer, he would
have received a maximum sentence of fourteen years. Buen-
rostro contends that his trial lawyer did not realize that Buen-
rostro faced the possibility of a life sentence, and the lawyer
rejected the offer without informing Buenrostro of the offer.
Buenrostro asked the district court to set aside its denial of his
original § 2255 motion and to hold an evidentiary hearing on
this new claim.

   The government moved in the district court to dismiss
Buenrostro’s motion as, in substance, an unauthorized second
or successive § 2255 motion. 28 U.S.C. §§ 2255(h),
2244(b)(3)(A). The district court agreed and dismissed Buen-
rostro’s Rule 60(b) motion for lack of jurisdiction. See Burton
v. Stewart, 549 U.S. 147, 149, 127 S.Ct. 793, 166 L.Ed.2d
628 (2007) (per curiam). We affirmed the district court’s dis-
missal. See United States v. Buenrostro, 163 Fed. Appx. 524
(9th Cir. Jan. 17, 2006).

   Buenrostro has now filed an application for authorization to
file a second or successive 28 U.S.C. § 2255 motion in the
                 BUENROSTRO v. UNITED STATES             12197
district court, a motion for permission to expand the record,
and a motion for release pending review. Additionally, in his
motion to expand the record, he requests appointment of
counsel. Buenrostro again wishes to raise an ineffective assis-
tance of trial counsel claim based on the failure to communi-
cate the plea offer. He further contends his post-conviction
counsel was ineffective because she failed to raise the trial
lawyer’s failure to communicate the plea offer in the original
§ 2255 motion.

  We grant the motion for permission to expand the record
but we deny the application for authorization to file a second
or successive motion because Buenrostro has not made the
requisite prima facie showing under 28 U.S.C. § 2255.

  Section 2255 provides:

    A second or successive motion must be certified . . .
    by a panel of the appropriate court of appeals to
    contain—

    (1) newly discovered evidence that, if proven and
    viewed in light of the evidence as a whole, would be
    sufficient to establish by clear and convincing evi-
    dence that no reasonable factfinder would have
    found the defendant guilty of the offense; or

    (2) a new rule of constitutional law, made retroactive
    to cases on collateral review by the Supreme Court,
    that was previously unavailable.

   Buenrostro grounds his second or successive motion in sub-
section (2), contending that the Supreme Court’s recent deci-
sions in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182
L.Ed.2d 272 (2012), Missouri v. Frye, ___ U.S. ___, 132
S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper,
___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d. 398 (2012), con-
stitute new rules of constitutional law. This contention fails.
12198             BUENROSTRO v. UNITED STATES
   First, Martinez cannot form the basis for an application for
a second or successive motion because it did not announce a
new rule of constitutional law. In Martinez, the Supreme
Court noted that Coleman v. Thompson, 501 U.S. 722, 746-47
(1991), held that “an attorney’s negligence in a postconviction
proceeding does not establish cause” to excuse procedural
default. See 132 S.Ct. at 1319. The Court recognized that
Coleman “left open . . . a question of constitutional law:
whether a prisoner has a right to effective counsel in collateral
proceedings which provide the first occasion to raise a claim
of ineffective assistance at trial.” See id. at 1315. However,
the Court did not resolve this constitutional question in Marti-
nez. Id. Instead, the Court “qualifie[d] Coleman by recogniz-
ing a narrow exception: inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective assis-
tance at trial.” See id. The Court characterized its decision as
an “equitable ruling,” and not a constitutional one. See id. at
1319. Thus, Martinez did not decide a new rule of constitu-
tional law as required to grant an application under 28 U.S.C.
§ 2255.

   Second, Martinez cannot form the basis for Buenrostro’s
application because Martinez concerns procedural default
based on ineffective assistance of habeas counsel in state
habeas proceedings. See id. (stating “[w]here, under state law,
claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.”). Here, Buenrostro is a federal
prisoner who wishes to collaterally attack the legality of his
federal conviction or sentence under 28 U.S.C. § 2255. Marti-
nez is inapplicable to federal convictions and thus inapplica-
ble to Buenrostro’s application.

  Finally, neither Frye nor Lafler can form the basis for an
application for a second or successive motion because neither
                 BUENROSTRO v. UNITED STATES              12199
case decided a new rule of constitutional law. 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,
104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), and established
in the plea-bargaining context in Hill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See Frye, 132 S.Ct.
at 1404-08 (stating “[t]his application of Strickland to the
instances of an uncommunicated, lapsed plea does nothing to
alter the standard laid out in Hill); Lafler, 132 S.Ct. at 1384
(stating that the “question for this Court is how to apply Str-
ickland’s prejudice test where ineffective assistance results in
a rejection of the plea offer and the defendant is convicted at
the ensuing trial.”) 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.
Therefore, we join the Eleventh Circuit in concluding that nei-
ther case decided a new rule of constitutional law. See In re
Perez, 682 F.3d 930, 933-34 (11th Cir. 2012).

   Buenrostro has not made the showing necessary for this
court to grant his application because Martinez, Frye, and
Lafler did not decide a new rule of constitutional law as
required under 28 U.S.C. § 2255, and because Martinez is not
applicable to Buenrostro’s application for authorization to file
a second or successive motion. Accordingly, his application
is denied.

   The pending motions for release pending review and coun-
sel are denied as moot.

  DENIED.
