MCGEE v. UNITED STATES (2020)

United States Court of Appeals, Ninth Circuit.

Anthony MCGEE, Applicant, v. UNITED STATES of America, Respondent.

No. 18-72243

Decided: January 10, 2020

Before: THOMAS, Chief Judge, and TASHIMA and WARDLAW, Circuit Judges.

Todd M. Borden, FPDCA - Federal Public Defenders Office, San Francisco, CA, for Petitioner Merry Jean Chan, Assistant U.S. Attorney, DOJ-USAO, San Francisco, CA, Daniel Kane, DOJ - U.S. Department of Justice, Washington, DC, for Respondent

ORDER *

The application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court is denied. The applicant seeks to rely on McCoy v. Louisiana, ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018), but has not demonstrated that even if McCoy were held to be retroactive to cases on collateral review, it would govern the facts of his case. The applicant has therefore not made a prima facie showing under 28 U.S.C. § 2255(h) of “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

Any pending motions are denied as moot.

No further filings will be entertained in this case.

DENIED.

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