Robert STEARNS, Petitioner-Appellant, v. Lynn GUYER, Respondent-Appellee.
Decided: June 10, 2020
Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.
David F. Ness, Assistant Federal Public Defender, FDMT - Federal Defenders of Montana, Great Falls, MT, for Petitioner-Appellant Roy Brown, Assistant Attorney General, C. Mark Fowler, Assistant Attorney General, AGMT - Office of the Montana Attorney General, Helena, MT, for Respondent-Appellee
The Eighth Amendment proportionality claim raised by Stearns’ petition is barred by the rule against second or successive habeas petitions codified at 28 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (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.
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