FILED
NOT FOR PUBLICATION OCT 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN F. FRIEDLANDER, No. 13-70918
Petitioner,
v. ORDER*
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Submitted October 8, 2013**
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
John Friedlander was charged as an adult in federal district court for a
murder committed when he was sixteen. On January 20, 1988, he pleaded guilty to
Second Degree Murder in violation of 18 U.S.C. § 1111(a), and Assault with Intent
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this motion suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
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to Commit Murder in violation of 18 U.S.C. § 113(a). He was sentenced to life in
prison for the murder charge, and a concurrent term of twenty years for the assault
charge. In 1992, the district court denied his first pro se motion under 28 U.S.C.
§ 2255. Friedlander has now filed an application for leave to file a second or
successive motion under § 2255. We have jurisdiction under 28 U.S.C. § 2255(h).
We may authorize the filing of a second or successive motion under § 2255
if, among other things, the application makes a prima facie showing that the
motion would “contain . . . 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. § 2255; 28 U.S.C. § 2244(b)(C). Friedlander contends that his sentence
is contrary to Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that a
mandatory sentence of life without the possibility of parole for a juvenile homicide
offender violates the Eighth Amendment. We need not decide whether Miller
announced a new, retroactive rule of constitutional law because, even if it did,
Friedlander’s application would fail.
Miller is inapplicable because Friedlander was not sentenced to life without
parole. Friedlander admits that he “has seen the parole board approximately 8
time[s] . . . and [has] a forth coming [sic] hearing in February of 2014.”
The application to file a second or successive motion under § 2255 is
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DENIED.
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