Opinion
No. 18-70281
05-24-2019
JONATHON SILVERSKY, Applicant, v. MICHAEL FLETCHER, Respondent.
NOT FOR PUBLICATION
ORDER Application to File Second or Successive Petition Under 28 U.S.C. § 2254 Argued and Submitted May 14, 2019 Seattle, Washington Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
Montana state prisoner Jonathon Silversky's ("Silversky") application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition is denied. Silversky has not made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:
(A) 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; 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, if proven and viewed in light of the evidence as a whole, 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.
Regarding § 2244(b)(2)(A), any rule announced in Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), "regulate[s] only the manner of determining the defendant's culpability" and thus is not substantive. Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016) (alteration in original) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). The Supreme Court has not otherwise made Williams retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 665-67 (2001).
Regarding § 2244(b)(2)(B), Silversky has not identified, let alone articulated why the newly discovered facts on which his claims rely "could not have been discovered previously through the exercise of due diligence." 28 U.S.C. § 2244(b)(2)(B). Further, none of his claims, if proven, would show he is "actually innocent" of the crime to which he pleaded guilty. See King v. Trujillo, 638 F.3d 726 (9th Cir. 2011).
Silversky's motion for a ruling on the merits (Dkt. 19) is denied as moot.
No further filings will be entertained in this case.
DENIED.