NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY DARRELL COLBERT, No. 20-73839
Applicant,
v. MEMORANDUM*
RON HAYNES,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Submitted August 10, 2021**
Seattle, Washington
Before: BEA, BRESS, and VANDYKE, Circuit Judges.
Bobby Colbert applies for leave to file a second or successive federal habeas
petition challenging his 2005 state conviction and sentence for rape. See Colbert v.
Haynes, 954 F.3d 1232, 1234–35 (9th Cir. 2020). Colbert acknowledges that he
cannot meet the standard for a second or successive petition, but argues that his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition is not actually a second or successive petition because a 2017 order that
changed his community custody (the “2017 Order”) effected a new judgment. The
2017 Order changed his community custody on one count from a variable term to a
fixed term, in compliance with a 2009 statutory amendment that prohibited
variable terms. This reduced Colbert’s community custody on that count to a fixed
term of 36 months instead of the prior variable range of 36 to 48 months. We deny
the application.
A petition is not second or successive if it is the first petition to challenge a
“new judgment.” Id. at 1235 (citation omitted). “Critical to this analysis is
whether the [change in sentence] ‘replaces an invalid sentence with a valid one.’”
Id. at 1236 (citation omitted). “In Washington, only sentencing errors stemming
from a trial court exceeding its statutory authority render a sentencing judgment
invalid.” Id. Because a variable custody term was lawful when the state court
imposed it in 2005—four years before Washington’s statutory amendment
requiring fixed terms—the 2005 judgment remains valid, and the 2017 Order did
not create a new judgment.
Further, even if there were an error, “sentencing errors correctible through
ministerial action . . . are not errors that render the original sentence invalid.” Id.
“[R]eset[ting] the end date for community custody [is] a purely ministerial
function,” as evidenced by the Washington legislature’s delegation to the
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Department of Corrections of the power to modify community custody terms in
accordance with the 2009 statutory amendment. State v. Franklin, 172 Wash. 2d
831, 843 (2011) (en banc).
For these reasons, the 2017 Order did not create a new judgment, and
Colbert’s petition is therefore second or successive. Accordingly, Colbert must
satisfy the requirements for filing a second or successive petition under 28 U.S.C.
§ 2244(b)(2), which he concedes that he does not do. Thus, Colbert’s application
to file his petition is DENIED.
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