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Smith v. Williams

United States Court of Appeals, Ninth Circuit

September 8, 2017

Taniko C. Smith, Petitioner-Appellant,
v.
Brian E. Williams, Sr.; Attorney General of the State of Nevada, Respondents-Appellees.

          Argued and Submitted June 8, 2017

         Appeal from the United States District Court for the District of Nevada No. 2:12-cv-00952-APG-VCF Andrew P. Gordon, District Judge, Presiding

          Jonathan M. Kirshbaum (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

          Dennis C. Wilson (argued), Senior Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

         Before: Stephen Reinhardt and Alex Kozinski, Circuit Judges, and Terrence Berg, [*] District Judge.

         SUMMARY [**]

         Habeas Corpus

         The panel reversed the district court's judgment dismissing as untimely Taniko Smith's federal habeas corpus petition, and remanded for further proceedings, in a case in which the state trial court entered a Second Amended Judgment reinstating Smith's murder and attempted murder convictions after the Nevada Supreme Court reversed the state trial court's amended judgment overturning and vacating the convictions.

         The panel held that Smith's federal petition challenging his conviction and sentence under the Second Amended Judgment was timely filed. The panel explained that "the judgment" in 28 U.S.C. § 2244(d)(1) can only refer to the state judgment pursuant to which the petitioner is being held, and that the statute of limitations must therefore run from the judgment pursuant to which the petitioner is being held. The panel observed that the Supreme Court reached the same conclusion when determining in Magwood v. Patterson, 561 U.S. 320 (2010), how to decide whether a petition challenging a prisoner's state conviction is second or successive. The panel wrote that it is of no moment that the Second Amended judgment reinstated counts on which Smith had originally been convicted rather than adding new counts of conviction.

          OPINION

          REINHARDT, CIRCUIT JUDGE:

         BACKGROUND

         Taniko Smith was convicted of first degree murder, attempted murder, two counts of robbery, and attempted robbery in a Nevada superior court on March 28, 1997. Following the conclusion of direct appeal, he filed a series of state and federal habeas petitions between 1999 and 2006, all of which were denied.[1] On January 31, 2007, Smith filed his third state habeas petition, arguing that under the Nevada Supreme Court's intervening decision in Sharma v. State, 56 P.3d 868 (Nev. 2002), the jury had not been properly instructed on the specific intent required to convict him of murder or attempted murder based on an aiding and abetting theory. The state trial court agreed, overturning and vacating Smith's convictions and sentences for first degree murder and attempted murder. It entered an amended judgment of conviction on August 21, 2007.

         The Nevada Supreme Court reversed the state trial court in 2009, concluding that Smith's petition was untimely and that Smith had not shown good cause to excuse the procedural defect. It remanded the case to the trial court with instructions to reinstate Smith's murder and attempted murder convictions and sentences by entering a Second Amended Judgment of Conviction. On March 14, 2012, the state trial court entered the Second Amended Judgment, which reinstated the murder and attempted murder convictions and sentences.

         On May 22, 2012, Smith filed pro se a federal habeas petition challenging his conviction and sentence under the Second Amended Judgment. The district court dismissed the petition as untimely, reasoning that the statute of limitations ran from the time of Smith's initial conviction in 1997 because the amended judgment created no new issues for petitioner to appeal. In part, the district court relied on United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000), which held that an amended federal judgment of conviction doesn't become final for purposes of 28 U.S.C. § 2255(f) until the time for appealing the amended judgment has passed but limited its holding to cases in which the trial court "either partially or wholly reverse[s] a defendant's conviction or sentence, or both, and expressly remand[s] to the district court, " stating that it need not reach a conclusion for cases that did not present the same procedural history. Colvin, 204 F.3d at 1225. The district court assumed that Colvin's limited holding would apply to an amended state court judgment of conviction, which is controlled by 28 U.S.C. § 2241(d)(1)(A), and determined that the statute of limitations had never restarted because Smith's case was never reversed and expressly remanded to the state trial court. This assumption is incorrect for the reasons we will explain in this opinion.

         STANDARD ...


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