NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT STEARNS, No. 19-35472

Petitioner-Appellant, D.C. No. 9:18-cv-00169-DLC-JCL v.

LYNN GUYER, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted June 4, 2020** Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.

The Eighth Amendment proportionality claim raised by Stearns’ petition is

barred by the rule against second or successive habeas petitions codified at 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. U.S.C. § 2244(b). Stearns cannot make a showing that he is entitled to relief from

that rule under any of the criteria set forth under section 2244(b)(2). Specifically,

Stearns’ Eighth Amendment claim does not rely on a new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court, and the

factual predicate for the claim was known to Stearns at the time he filed his initial

petition. See 28 U.S.C. § 2244(b)(2)(A), (B). Accordingly, construing Stearns’

appeal as a request for authorization to file a second or successive petition, see id.

§ 2244(b)(3)(A), we deny the request.

Moreover, section 2244(b) notwithstanding, Stearns’ Eighth Amendment

proportionality claim is procedurally barred because it was not presented to the

Montana state courts. See Zichko v. Idaho, 247 F.3d 1015, 1021–22 (9th Cir. 2001)

(citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). His claim is also

untimely under AEDPA’s one-year statute of limitations. 28 U.S.C. § 2244(d)(1).

Stearns’ appeal is therefore denied and the order dismissing his petition

affirmed.

AFFIRMED.

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