William Berry, Sr. v. Brian Williams, Sr. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM JAMES BERRY, SR., No. 18-70711
Petitioner,
v.
BRIAN WILLIAMS, Sr. ORDER*
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Argued and Submitted July 19, 2019
San Francisco, California
Before: MURPHY,** PAEZ, and RAWLINSON, Circuit Judges.
Petitioner Berry has applied for permission to file a second or successive
habeas corpus application to present a claim that a jury instruction given during his
trial violated his right to due process by eliminating an element of first-degree
murder. See Sandstrom v. Montana, 442 U.S. 510, 521 (1979).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael R. Murphy, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
“The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing
that the application satisfies the requirements of [' 2244(b)].” 28 U.S.C. '
2244(b)(3)(C); see also 9th Cir. Rule 22-3(a)(4) (providing that an application to
file a second or successive ' 2254 petition must “state how the requirements of
section[] 2244(b) . . . have been satisfied”). Section 2244(b)(2) provides as
follows:
A claim presented in a second or successive habeas corpus application
. . . that was not presented in a prior application shall be dismissed
unless C
(A) the applicant shows that the claim relies on a new rule of
constitutional law . . . or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and (ii)
the facts underlying the claim . . . would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. ' 2244(b)(2).
Berry has made neither showing. He does not assert that the factual
predicate for his claim could not have been discovered previously. Nor has he
shown that his claim relies on a new rule of constitutional law. The Supreme
Court cases on which he relies, Montgomery v. Louisiana, 136 S. Ct. 718 (2016)
and Welch v. United States, 136 S. Ct. 1257 (2016), do not require retroactive
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application of a change in state law, like that adopted by the Nevada Supreme
Court in Byford v. State, 994 P.2d 700 (Nev. 2000), to cases on collateral review.
The application is DENIED.
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