Pagan-San Miguel v. United States

United States Court of Appeals
For the First Circuit
No. 13-1343
CARLOS PÁGAN-SAN MIGUEL,
Petitioner,
v.
UNITED STATES,
Respondent.
APPLICATION FOR LEAVE TO FILE A SECOND OR
SUCCESSIVE MOTION PURSUANT TO 28 U.S.C. § 2255Before
Howard, Thompson and Kayatta,
Circuit Judges.
Carlos Págan-San Miguel pro se.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant U.S. Attorney.
November 20, 2013
Per Curiam. Petitioner Carlos Pagan-San-Miguel seeks leave to
file a second or successive petition under 28 U.S.C. § 2255. He
relies upon the Supreme Court's recent decisions in Missouri v.
Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376(2012), and upon Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
Trevino v. Thaler, 133 S.Ct. 1911 (2013). However, none of those
cases establishes a "new rule of constitutional law, made
retroactive to cases on collateral review," as 28 U.S.C. §
2255(h)(2) requires.
We agree with every other circuit to have considered the issue
that neither Frye nor Cooper established a "new rule of
constitutional law." See In re Liddell, 722 F.3d 737, 738 (6th Cir.
2013)(per curiam)(citing cases). As the Seventh Circuit pointed
out, "the Court's language repeatedly and clearly spoke of applying
an established rule to the present facts" and both cases were
"decided in the post-conviction context, where state courts
ordinarily are not held to proper application of new rules." Hare
v. United States, 688 F.3d 878, 879 (7th Cir. 2012). "The Supreme
Court in both cases merely applied the Sixth Amendment right to
effective assistance of counsel according to the test articulated
in Strickland v. Washington, 466 U.S. 668, 686 (1984), and
established in the plea-bargaining context in Hill v. Lockhart, 474
U.S. 52 (1985)." Buenrostro v. United States, 697 F.3d 1137, 1140
(9th Cir. 2012).
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We also join the circuits that have considered the question in
holding that Martinez did not announce a new rule of constitutional
law. See Jones v. Ryan, ___ F.3d ___, 2013 WL 5676467, *14 (9th
Cir.)(citing cases), cert. denied 2013 WL 5733725 (2013). As the
Ninth Circuit explained, "Martinez 'qualifie[d] Coleman by
recognizing a narrow exception' to that case's rule," and the Court
itself "characterized its decision in Martinez as an 'equitable
ruling,' and not a 'constitutional' one." Id.; see also Adams v.
Thaler, 679 F.3d 312, 323 n.6 (5th Cir. 2012)(same). Therefore,
petitioner's reliance upon Martinez and Trevino v. Thaler, supra,(applying Martinez exception where a state's procedural framework
"makes it highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal") is unavailing.
Petitioner's application for leave to file a second or
successive motion pursuant to 28 U.S.C. § 2255 is denied.1
1
"Th[is] . . . denial of an authorization . . . to file a
second or successive application shall not be appealable and shall
not be the subject of a petition for rehearing or for a writ of
certiorari." 28 U.S.C. § 2244(b)(3)(E); see Lykus v. Corsini, 565
F.3d 1 (1st Cir. 2009).
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