FILED
NOT FOR PUBLICATION
SEP 12 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER S. SCOTT, No. 16-55688
Plaintiff-Appellant, DC No. 2:15-CV-06125-R-DTB
v.
MEMORANDUM*
DEBBIE ASUNCION, Warden,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 9, 2018
Pasadena, California
Before: TASHIMA and CHRISTEN, Circuit Judges, and RUFE,** District
Judge.
Walter Scott appeals the district court’s dismissal of his second-in-time 28
U.S.C. § 2254 habeas corpus petition. Scott’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
court dismissed Scott’s petition as an unauthorized second or successive petition,
concluding that the California Court of Appeal’s amendment to Scott’s presentence
credit award did not constitute a new, intervening judgment. We reverse.
1. The district court erred in dismissing Scott’s habeas petition. Scott
filed the petition after the Court of Appeal amended his judgment of conviction to
correct his presentence credits pursuant to California Penal Code § 1237.1. Under
California law, a state court’s amendment to a presentence credit award under §
1237.1 “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).” Gonzalez v. Sherman, 873 F.3d 763, 769 (9th Cir. 2017).
Gonzalez, which was decided after the district court’s order, dictates that Scott’s
petition was not second or successive.
The State contends that Scott’s sentence – life without the possibility of
parole, among other terms – ensures that the amendment to his presentence credits
“realistically will never have any impact whatsoever.” But Gonzalez dispensed
with that argument, as “it does not matter whether the error in the judgment was
minor or major. What matters is whether there is an amended judgment.” Id. at
773 n.5. Even though Scott’s judgment was “not substantively changed,” the
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amendment still “constitutes a new, intervening judgment . . . .” See id. Therefore,
Scott’s 2015 petition was not second or successive.
2. The State also contends that Scott’s petition should be dismissed as
time-barred under AEDPA. However, the amendment to Scott’s presentence credit
award constituted a “new judgment, starting a new one-year statute of limitations.”
See Smith v. Williams, 871 F.3d 684, 688 (9th Cir. 2017). Scott filed his petition
within one year from when “the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” See 28 U.S.C. §
2244(d)(1)(A). Therefore, Scott’s petition was timely.
• ! •
The judgment of the district court is REVERSED and the case is
REMANDED for further proceedings.
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FILED
SEP 12 2018
Scott v. Asuncion, No. 16-55688 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTEN, Circuit Judge, with whom RUFE, District Judge, joins, concurring:
I concur in the court’s memorandum disposition because we are bound by
Magwood v. Patterson, 561 U.S. 320 (2010) and California law, as interpreted by
Gonzalez v. Sherman, 873 F.3d 763, 768 (9th Cir. 2017). I write separately to
explain that, in my view, applying Magwood to cases like this one leads to
paradoxical results.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
generally prohibits a state prisoner from filing a “second or successive” federal
habeas petition to challenge a conviction or a sentence. See 28 U.S.C. § 2244(b).
After the Supreme Court’s decision in Magwood, a habeas petition challenging a
“new” state judgment is no longer considered second or successive for purposes of
AEDPA. 561 U.S. at 340–42. In Wentzell v. Neven, 674 F.3d 1124 (9th Cir.
2012), we followed Magwood and held that a habeas petition filed after a new
state-court judgment is “not second or successive even if the petition challenges
only undisturbed portions of the original judgment.” Gonzalez, 873 F.3d at 768
(citing Wentzell, 674 F.3d at 1126–28).
Whether a correction to a state judgment amounts to a “new judgment” is a
question for the state, not a federal court. But in practice, only federal courts are
presented directly with whether a correction or amendment results in a “new
judgment” for purposes of AEDPA. Thus, our interpretation of state law in this
context necessarily relies on inferences drawn from state law.
In a criminal case, “[t]he sentence is the judgment,” so a new sentence
results in a new judgment. Id. at 769 (emphasis and alteration in original) (citing
Burton v. Stewart, 549 U.S. 147, 156 (2007)). Under California law a sentence is
considered unauthorized, and therefore unlawful, if it does not award a prisoner all
credits to which he is entitled. Id.; see People v. Karaman, 842 P.2d 100, 109 n.15
(1992) (holding that an unauthorized sentence “is considered invalid or
‘unlawful’”). Our court reasoned in Gonzalez that a state trial court’s recalculation
and alteration of the number of presentence or other similar credits “to which a
prisoner is entitled is a legally significant act: it replaces an invalid sentence with a
valid one.” 873 F.3d at 76. In line with Gonzalez, and absent some indication
otherwise, in California a “new judgment” is entered pursuant to Magwood when a
state court corrects the number of credits awarded to a prisoner. Id.
Petitioner Walter Scott was convicted of 33 felony counts—including two
counts of first degree murder—and sentenced to state prison for life without the
2
possibility of parole, along with other terms.1 Scott’s 1997 state habeas petition
was summarily denied. In 1998, Scott filed his first federal habeas petition, which
was dismissed with prejudice as time-barred. Then in 2014, the California Court
of Appeal determined that Scott was entitled to an additional 108 days of custody
credits for time served and directed the trial court to forward to the Department of
Corrections an amended abstract of judgment reflecting the correct amount of
presentence credits. Scott filed a new federal habeas petition in 2015 reasserting
the same seven claims. Opposing this new petition, the State rightly argues that in
light of Scott’s life-without-parole sentence, the amendment to his presentence
credits “realistically will never have any impact whatsoever.” Regardless, because
the amendment yielded a new state judgment, under Magwood Scott is able to file
a second federal habeas petition in district court—identical in substance to his first,
time-barred federal petition.
I agree with the majority that we are bound by Magwood and California law
to reach this result, but it is entirely contrary to AEDPA’s statutory scheme. Until
the Supreme Court clarifies what constitutes a “new judgment” under Magwood,
1
Specifically, the trial court sentenced Scott to life without the
possibility of parole, plus consecutive terms of 25 years to life, and two terms of
life plus a determinate term of 139 years and 8 months. Concurrent with this
sentence, the trial court also imposed an additional life term and a determinate term
of 57 years.
3
any new state-court judgment, as defined by state law, will allow a petitioner to
circumvent AEDPA’s bar on second or successive habeas petitions.
4