                            NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                           OCT 4 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


TONY RAY AMATI,                                  No.   18-72277

              Applicant,

 v.                                              ORDER*

BRIAN WILLIAMS, Warden,

              Respondent.


                     Application to File Second or Successive
                        Motion Under 28 U.S.C. § 2254

                             Submitted July 19, 2019**
                             San Francisco, California

Before: PAEZ, RAWLINSON, and MURPHY,*** Circuit Judges

      Tony Ray Amati (Amati) applies for leave to file a second or successive

habeas petition under 28 U.S.C. § 2254 (§ 2254). We have jurisdiction under 28

U.S.C. § 2244.


      *
             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 Michael Murphy, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
      A habeas petitioner may be permitted to file a second or successive habeas

petition if, as relevant here: (1) the petitioner presents a new claim not previously

raised, and (2) the petitioner establishes 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.” 28 U.S.C. § 2244(b)(1)-(2); see also

Henry v. Spearman, 899 F.3d 703, 705 (9th Cir. 2018).

      Amati seeks relief under Byford v. State, 994 P.2d 700 (Nev. 2000).

However, Amati’s conviction was not final when Byford was decided, and Amati

had the opportunity to include a Byford claim in his previous habeas petition in

state court. His failure to do so resulted in a procedural default of that claim. See

Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004). Consequently, the

current posture of Amati’s proceedings is one of procedural default rather than

retroactive application of case authority. See id. This procedural posture does not

meet the standard for permission to file a second or successive habeas petition. See

Henry, 899 F.3d at 705.

      APPLICATION DENIED.




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