                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBERT STEARNS,                                 No.    19-35472

                Petitioner-Appellant,           D.C. No.
                                                9:18-cv-00169-DLC-JCL
 v.

LYNN GUYER,                                     MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Montana
                   Dana L. Christensen, District Judge, Presiding

                             Submitted June 4, 2020**
                                Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.

      The Eighth Amendment proportionality claim raised by Stearns’ petition is

barred by the rule against second or successive habeas petitions codified at 28



      *
             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 Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
U.S.C. § 2244(b). Stearns cannot make a showing that he is entitled to relief from

that rule under any of the criteria set forth under section 2244(b)(2). Specifically,

Stearns’ Eighth Amendment claim does not rely on a new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court, and the

factual predicate for the claim was known to Stearns at the time he filed his initial

petition. See 28 U.S.C. § 2244(b)(2)(A), (B). Accordingly, construing Stearns’

appeal as a request for authorization to file a second or successive petition, see id.

§ 2244(b)(3)(A), we deny the request.

      Moreover, section 2244(b) notwithstanding, Stearns’ Eighth Amendment

proportionality claim is procedurally barred because it was not presented to the

Montana state courts. See Zichko v. Idaho, 247 F.3d 1015, 1021–22 (9th Cir. 2001)

(citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). His claim is also

untimely under AEDPA’s one-year statute of limitations. 28 U.S.C. § 2244(d)(1).

      Stearns’ appeal is therefore denied and the order dismissing his petition

affirmed.

      AFFIRMED.




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