Howard Young v. Christian Pfeiffer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD ALLEN YOUNG, No. 19-70286
Applicant,
v. OPINION
CHRISTIAN PFEIFFER, Warden,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Submitted July 2, 2019 *
San Francisco, California
Filed August 12, 2019
Before: M. Margaret McKeown, Jay S. Bybee,
and John B. Owens, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 YOUNG V. PFEIFFER
SUMMARY **
Habeas Corpus
Denying an application for authorization to file a second
or successive 28 U.S.C. § 2254 habeas corpus petition, the
panel held that the Supreme Court has not made Riley v.
California, 573 U.S. 373 (2014) (holding that a warrant is
“generally required” to search a cell phone’s data),
retroactive; and that the applicant has therefore not made a
prima face showing that his application to file a second or
successive § 2254 petition meets the requirements of
18 U.S.C. § 2244(b)(2)(A).
COUNSEL
Howard Allen Young, Vacaville, California, pro se
Applicant.
Gregory A. Ott, Deputy Attorney General; Peggy S. Ruffra,
Supervising Deputy Attorney General; Jeffrey M. Laurence,
Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondent.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
YOUNG V. PFEIFFER 3
OPINION
PER CURIAM:
Howard Allen Young was convicted in California state
court of second-degree burglary, grand theft, and selling
stolen property. He seeks authorization to file a second or
successive 28 U.S.C. § 2254 petition for writ of habeas
corpus. Young argues that Riley v. California, 573 U.S. 373
(2014), announced a “new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(2)(A). We hold that it did not, and deny Young’s
application for authorization to file another habeas petition.
I. Factual and Procedural Background
In 2006, a California jury convicted Young of fourteen
counts of second-degree burglary, fourteen counts of grand
theft, and one count of selling stolen property, with
enhancements. He was sentenced to state prison for thirty
years and eight months. The California Court of Appeal
affirmed his conviction and the California Supreme Court
denied his petition for review.
Young later challenged his conviction in federal district
court with a § 2254 habeas petition, which was denied on the
merits.
In the years following the district court’s denial, Young
has filed several applications in this court for authorization
to file a second or successive § 2254 petition. Most recently,
he filed a motion to reconsider the denial of his application,
which we deemed another application for authorization.
Young asserted that his conviction was unconstitutional
because there was an unreasonable search of his cell phone
4 YOUNG V. PFEIFFER
based on Riley, which held that a warrant is “generally
required” to search a cell phone’s data. 573 U.S. at 401. We
requested that respondent address whether the Supreme
Court’s decision in Riley meets § 2244(b)(2)(A)’s
requirements for authorization of a second or successive
petition.
II. DISCUSSION
“The Antiterrorism and Effective Death Penalty Act
(‘AEDPA’) imposes significant limitations on the power of
federal courts to award relief to prisoners who file second or
successive habeas petitions.” Ezell v. United States,
778 F.3d 762, 765 (9th Cir. 2015) (internal quotation marks
and citation omitted). However, we may authorize the filing
of a second or successive § 2254 habeas petition if the
application makes a prima facie showing that “the claim
relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. §§ 2244(b)(2)(A),
(b)(3)(C).
Under § 2244(b)(2)(A), “the Supreme Court is the only
entity that can ‘ma[k]e’ a new rule retroactive.” Tyler v.
Cain, 533 U.S. 656, 663 (2001) (alteration in original).
Moreover, “a new rule is not ‘made retroactive to cases on
collateral review’ unless the Supreme Court holds it to be
retroactive.” Id. The Supreme Court can make a rule
retroactive explicitly or through a combination of holdings
that “logically dictate[]” the new rule’s retroactivity. Garcia
v. United States, 923 F.3d 1242, 1246 (9th Cir. 2019)
(quoting Tyler, 533 U.S. at 666–67).
“A new rule applies retroactively in a collateral
proceeding only if (1) the rule is substantive or (2) the rule
is a watershed rul[e] of criminal procedure implicating the
YOUNG V. PFEIFFER 5
fundamental fairness and accuracy of the criminal
proceeding.” Whorton v. Bockting, 549 U.S. 406, 416
(2007) (alteration in original) (internal quotation marks and
citation omitted). “New constitutional rules of criminal
procedure . . . generally do not apply retroactively to cases
on collateral review.” Garcia, 923 F.3d at 1245 (citing
Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality
opinion)). A new procedural rule “must be one without
which the likelihood of an accurate conviction is seriously
diminished. This class of rules is extremely narrow, and it
is unlikely that any . . . ha[s] yet to emerge.” Schriro v.
Summerlin, 542 U.S. 348, 352 (2004) (emphasis and
alteration in original) (internal quotation marks and citations
omitted).
Here, Young has not shown that the Supreme Court
made Riley retroactive. Riley does not itself hold that it is
retroactive, 573 U.S. at 386, nor does Young offer a string
of cases “logically dictat[ing]” that conclusion. Garcia,
923 F.3d at 1246 (citation omitted). 1
Accordingly, Young has not made a prima facie showing
that his application to file a second or successive § 2254
petition meets the requirements of § 2244(b)(2)(A). His
application is therefore DENIED.
1
We join our sister circuits in concluding that the Supreme Court
has not made Riley retroactive. See, e.g., In re Baker, 2019 U.S. App.
LEXIS 893, at *3 (11th Cir. Jan. 9, 2019) (unpublished); Austin v. United
States, 2017 U.S. App. LEXIS 28010, at *4 (6th Cir. Feb. 16, 2017)
(unpublished).