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Gonzalez v. Sherman

United States Court of Appeals, Ninth Circuit

October 11, 2017

Uriel Gonzalez, Petitioner-Appellant,
v.
Stuart Sherman, Respondent-Appellee.

          Argued and Submitted June 8, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding D.C. No. 2:13-cv-05248-PA-PLA

          Vivian Fu (argued), San Francisco, California, for Petitioner-Appellant.

          Stephanie C. Brenan (argued) and Kenneth C. Byrne, Supervising Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

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

         SUMMARY[**]

         Habeas Corpus

         Reversing the district court's dismissal of a California state prisoner's habeas corpus petition and remanding, the panel held that a state court's alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment which renders a subsequent federal habeas petition a first rather than second or successive petition under 28 U.S.C. § 2244(b)(1).

          OPINION

          REINHARDT, Circuit Judge

         Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner is ordinarily prohibited from filing more than one federal petition for writ of habeas corpus challenging his conviction or sentence. 28 U.S.C. § 2244(b). We have previously held, however, that when a state trial court amends a prisoner's judgment of conviction, it creates a new, intervening judgment which a prisoner may challenge in a federal habeas petition without that petition being denied as "second or successive" under AEDPA. See Wentzell v. Neven, 674 F.3d 1124, 1125 (9th Cir. 2012); see also Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (holding that a new judgment renders a second-in-time petition challenging that judgment not second or successive). The question in this case is whether a state court's alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment under Wentzell. We hold that it does.

         BACKGROUND

         Uriel Gonzalez was convicted of four counts of attempted murder in 2001. As part of its determination of guilt, the jury found true firearm and gang allegations. Gonzalez was sentenced to serve a term in state prison of 65 years to life. At sentencing, the Superior Court judge determined that Gonzalez was entitled to 464 days of time served credits and 69 days of good time credits for a total of 533 days to be credited against the sentence imposed. On direct appeal, the California Court of Appeal affirmed the judgment. The California Supreme Court denied review on October 23, 2002.

         Gonzalez filed a federal petition for writ of habeas corpus on October 20, 2011. While Gonzalez's federal habeas petition was pending, he filed a state petition for postconviction relief in Superior Court on November 7, 2011. Notice of Lodging at 2, Gonzalez v. Trimble, No. CV 11-8690-PA (PLA), 2013 WL 571760 (C.D. Cal. Feb. 12, 2013). His state petition was denied on December 14, 2011. Id. Gonzalez filed a "Request for Reconsideration" with the Superior Court on December 23, 2011, which was denied on December 30, 2011. Id. On March 22, 2012, Gonzalez filed a state habeas petition in the California Court of Appeal, which was denied on April 5, 2012. Id. at 3. He then filed a state petition with the California Supreme Court on February 14, 2012, which was denied on May 9, 2012. The district court denied Gonzalez's federal habeas petition with prejudice as time-barred on February 12, 2013.

         On April 10, 2013, Gonzalez filed a motion for correction of the record in the California Superior Court pursuant to California Penal Code section 1237.1, contending that he was entitled to 482 days in time served credits and 72 days in good time credits for a total of 554 days of presentence credit, instead of the 533 days that the trial court had awarded him. On April 24, 2013, the court granted his motion, ordered Gonzalez's credits amended, and directed that an amended abstract of judgment be prepared reflecting the additional credit granted. The amended abstract of judgment was filed April 26, 2013. Gonzalez then filed a motion for reconsideration of the court's order, requesting a formal resentencing hearing and a motion for correction of the record in the trial court. The Superior Court denied the motion, the Court of Appeal denied the appeal, and the California Supreme Court denied review.

         On June 6, 2013, Gonzalez filed a new federal habeas petition in district court challenging both his conviction and sentence. See Petition for Writ of Habeas Corpus by a Person in State Custody, Gonzalez v. Brazelton, No. 2:13-cv-04053-PA-PLA (C.D. Cal. June 6, 2013). The district court summarily dismissed the petition without prejudice as second or successive on June 13, 2013. See Order Dismissing Successive Petition Without Prejudice, Gonzalez v. Brazelton, No. 2:13-cv-04053-PA-PLA (C.D. Cal. June 13, 2013).

         Gonzalez filed an identical federal habeas petition on July 19, 2013, along with a motion for the district court to take judicial notice of this circuit's decision in Wentzell. The district court dismissed the petition without prejudice as an unauthorized second or successive petition on October 29, 2014 based on the report and recommendation of the magistrate judge. In his report and recommendation, the magistrate judge rejected the argument that the Superior Court's amendment to the number of credits due to petitioner was an intervening judgment, stating that the court was "merely fixing a computational error, " and that there was "nothing to indicate that the modification of credits had any effect on the finality of petitioner's judgment of sentence." The magistrate judge reasoned that this conclusion was supported by the fact that, although not expressly labeled as such, "it appears that the order operates as [a 'nunc pro tunc' order]" because it directed the award of custody credits amended as of the original sentencing date, which order the magistrate judge called "retroactive." The court interpreted Magwood and Wentzell as limited to "the finality of petitioner's judgment of sentence, " and found that Gonzalez's initial sentence remained final. The parties agreed that for purposes of AEDPA, the July 19 petition is the first federal petition filed after the Superior Court amended Gonzalez's credits.

         We granted a certificate of appealability with respect to whether the district court properly dismissed ...


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