FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS BUENROSTRO, 

Petitioner, No. 12-71253

v. 

ORDER

UNITED STATES OF AMERICA,

Respondent. 

Application to File Second or Successive

Petition Under 28 U.S.C. § 2255

Submitted to Motions Panel July 9, 2012*

Filed October 9, 2012

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and

Sandra S. Ikuta, Circuit Judges.

COUNSEL

Jose Luis Buenrostro, Mendota, California, filed the application for leave to file a second or successive motion for the

petitioner.

No appearance on behalf of the respondent. 

*The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2). 

12195
ORDER

Petitioner Jose Luis Buenrostro was tried and convicted of

conspiracy to manufacture more than thirty-one kilograms of

methamphetamine. Because Buenrostro had two prior felony

drug convictions, the district court sentenced him to a mandatory minimum term of life imprisonment without parole. See

21 U.S.C. §§ 846, 851(d)(1), 841(a)(1), (b)(1)(A)(viii). We

affirmed Buenrostro’s conviction on direct appeal. See United

States v. Buenrostro, 163 F.3d 608 (9th Cir. 1998). He then

moved the district court to vacate his sentence under 28

U.S.C. § 2255, which the district court denied on the merits.

After the district court concluded Buenrostro’s § 2255 proceeding, Buenrostro moved to reopen the proceeding under

Federal Rule of Civil Procedure 60(b) due to a newly discovered ineffective assistance of counsel claim. According to

Buenrostro, his trial lawyer received a plea offer five months

before trial and had Buenrostro accepted that offer, he would

have received a maximum sentence of fourteen years. Buenrostro contends that his trial lawyer did not realize that Buenrostro faced the possibility of a life sentence, and the lawyer

rejected the offer without informing Buenrostro of the offer.

Buenrostro asked the district court to set aside its denial of his

original § 2255 motion and to hold an evidentiary hearing on

this new claim. 

The government moved in the district court to dismiss

Buenrostro’s motion as, in substance, an unauthorized second

or successive § 2255 motion. 28 U.S.C. §§ 2255(h),

2244(b)(3)(A). The district court agreed and dismissed Buenrostro’s Rule 60(b) motion for lack of jurisdiction. See Burton

v. Stewart, 549 U.S. 147, 149, 127 S.Ct. 793, 166 L.Ed.2d

628 (2007) (per curiam). We affirmed the district court’s dismissal. See United States v. Buenrostro, 163 Fed. Appx. 524

(9th Cir. Jan. 17, 2006).

Buenrostro has now filed an application for authorization to

file a second or successive 28 U.S.C. § 2255 motion in the

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district court, a motion for permission to expand the record,

and a motion for release pending review. Additionally, in his

motion to expand the record, he requests appointment of

counsel. Buenrostro again wishes to raise an ineffective assistance of trial counsel claim based on the failure to communicate the plea offer. He further contends his post-conviction

counsel was ineffective because she failed to raise the trial

lawyer’s failure to communicate the plea offer in the original

§ 2255 motion. 

We grant the motion for permission to expand the record

but we deny the application for authorization to file a second

or successive motion because Buenrostro has not made the

requisite prima facie showing under 28 U.S.C. § 2255. 

Section 2255 provides:

A second or successive motion must be certified . . .

by a panel of the appropriate court of appeals to

contain— 

(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that no reasonable factfinder would have

found the defendant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court,

that was previously unavailable.

Buenrostro grounds his second or successive motion in subsection (2), contending that the Supreme Court’s recent decisions in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182

L.Ed.2d 272 (2012), Missouri v. Frye, ___ U.S. ___, 132

S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper,

___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d. 398 (2012), constitute new rules of constitutional law. This contention fails.

BUENROSTRO v. UNITED STATES 12197
First, Martinez cannot form the basis for an application for

a second or successive motion because it did not announce a

new rule of constitutional law. In Martinez, the Supreme

Court noted that Coleman v. Thompson, 501 U.S. 722, 746-47

(1991), held that “an attorney’s negligence in a postconviction

proceeding does not establish cause” to excuse procedural

default. See 132 S.Ct. at 1319. The Court recognized that

Coleman “left open . . . a question of constitutional law:

whether a prisoner has a right to effective counsel in collateral

proceedings which provide the first occasion to raise a claim

of ineffective assistance at trial.” See id. at 1315. However,

the Court did not resolve this constitutional question in Martinez. Id. Instead, the Court “qualifie[d] Coleman by recognizing a narrow exception: inadequate assistance of counsel at

initial-review collateral proceedings may establish cause for

a prisoner’s procedural default of a claim of ineffective assistance at trial.” See id. The Court characterized its decision as

an “equitable ruling,” and not a constitutional one. See id. at

1319. Thus, Martinez did not decide a new rule of constitutional law as required to grant an application under 28 U.S.C.

§ 2255. 

Second, Martinez cannot form the basis for Buenrostro’s

application because Martinez concerns procedural default

based on ineffective assistance of habeas counsel in state

habeas proceedings. See id. (stating “[w]here, under state law,

claims of ineffective assistance of trial counsel must be raised

in an initial-review collateral proceeding, a procedural default

will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.”). Here, Buenrostro is a federal

prisoner who wishes to collaterally attack the legality of his

federal conviction or sentence under 28 U.S.C. § 2255. Martinez is inapplicable to federal convictions and thus inapplicable to Buenrostro’s application. 

Finally, neither Frye nor Lafler can form the basis for an

application for a second or successive motion because neither

12198 BUENROSTRO v. UNITED STATES
case decided a new rule of constitutional law. 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,

104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), and established

in the plea-bargaining context in Hill v. Lockhart, 474 U.S.

52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See Frye, 132 S.Ct.

at 1404-08 (stating “[t]his application of Strickland to the

instances of an uncommunicated, lapsed plea does nothing to

alter the standard laid out in Hill); Lafler, 132 S.Ct. at 1384

(stating that the “question for this Court is how to apply Strickland’s prejudice test where ineffective assistance results in

a rejection of the plea offer and the defendant is convicted at

the ensuing trial.”) Because the Court in Frye and Lafler

repeatedly noted its application of an established rule to the

underlying facts, these cases did not break new ground or

impose a new obligation on the State or Federal Government.

Therefore, we join the Eleventh Circuit in concluding that neither case decided a new rule of constitutional law. See In re

Perez, 682 F.3d 930, 933-34 (11th Cir. 2012). 

Buenrostro has not made the showing necessary for this

court to grant his application because Martinez, Frye, and

Lafler did not decide a new rule of constitutional law as

required under 28 U.S.C. § 2255, and because Martinez is not

applicable to Buenrostro’s application for authorization to file

a second or successive motion. Accordingly, his application

is denied. 

The pending motions for release pending review and counsel are denied as moot.

DENIED.

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