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Clayton v. Biter

United States Court of Appeals, Ninth Circuit

August 21, 2017

Curtis Lavell Clayton, AKA Curtis Moore, Petitioner,
v.
Martin Biter, Warden, Respondent.

          Argued and Submitted December 8, 2016 Pasadena, California

         Application to File Second or Successive Petition Under 28 U.S.C. § 2254, D.C. No. 2:14-cv-06001-JFW-FFM

          Jan B. Norman (argued), Tujunga, California, for Petitioner.

          Michael C. Keller (argued) and Jonathan J. Kline, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent.

          Before: Stephen Reinhardt and Richard A. Paez, Circuit Judges, and Paul L. Friedman, [*] District Judge.

         SUMMARY[**]

         Habeas Corpus

         The panel denied as unnecessary California state prisoner Curtis Clayton's application for permission to file a second or successive habeas corpus petition challenging the state court's denial of his petition for resentencing under section 1170.126 of the California Penal Code, and transferred the matter to the district court with instructions to treat Clayton's habeas petition as a first petition.

         The panel explained that under California law, a resentencing petition under section 1170.126 does not challenge the underlying conviction or sentence; rather it seeks to obtain the benefits of Proposition 36, which entitles defendants with a non-serious and non-violent third strike to petition for resentencing, and results in the entry of a new or appealable order of judgment. The panel held that Clayton, accordingly, is not subject to the "second or successive" petition bar imposed by 28 U.S.C. § 2244(b)(2), and may seek habeas relief from the denial of his resentencing position.

         The panel also held that cognizability of a claim in the habeas petition plays no role in the court of appeals' adjudication of an application for permission to file a second or successive petition, and that it is the province of the district court to consider cognizability of a habeas petition.

          OPINION

          PAEZ, CIRCUIT JUDGE

         After the district court dismissed Petitioner Curtis Clayton's petition for a writ of habeas corpus as second or successive, he applied to this court for permission to file a second or successive petition. 28 U.S.C. § 2244(b). Clayton's habeas petition challenges the state court's denial of his petition for resentencing under section 1170.126 of the California Penal Code. He argues that the state court's adverse ruling deprived him of a federally protected liberty interest without affording him procedural due process protections.

         We review Clayton's application pursuant to 28 U.S.C. § 2244(b)(3), and we deny the application as unnecessary and transfer the matter to the district court with instructions ...


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