Alquandre H. Turner, Petitioner,
Renee Baker, Warden, Respondent.
and Submitted November 16, 2018 San Francisco, California
Application to File Second or Successive Petition Under 28
U.S.C. § 2254
L. Qualls (argued), Reno, Nevada, for Petitioner.
P. Stern (argued), Chief Deputy Attorney General, Office of
the Attorney General, Las Vegas, Nevada, for Respondent.
Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit
Judges, and LAWRENCE L. PIERSOL, [*] District Judge.
panel denied as unnecessary Alquandre Turner's
application to file a second or successive habeas corpus
petition challenging his Nevada state conviction and
sentence, and transferred the petition to the district court
with instructions to consider it as a first habeas petition.
panel held that a Nevada state court's amended judgment
awarding a defendant credit for time served constitutes a new
judgment, and that Turner's habeas petition is therefore
the first petition challenging his amended judgment, which
does not require authorization from this court.
panel wrote that the issue of the timeliness of Turner's
petition is not properly before this court after this court
determined, in an application for authorization to file a
second or successive petition, that Turner's petition is
a first petition.
SMITH, CIRCUIT JUDGE
Petitioner Alquandre Turner filed his third federal habeas
petition, the district court dismissed it in accordance with
the Antiterrorism and Effective Death Penalty Act of
1996's (AEDPA) general rule prohibiting a state prisoner
from filing more than one federal petition for writ of habeas
corpus challenging his conviction or sentence. Like most
rules, however, AEDPA has an exception: It does not bar
successive petitions when a prisoner challenges a new
judgment. Turner now files this application for authorization
to file a second or successive petition under 28 U.S.C.
§ 2254. But the title of his application is deceiving:
Turner's argument is that his petition is not a second or
successive, but rather a first petition challenging a new
judgment that added credit for the time he served before
recently held that, under California law, a state court's
amended judgment awarding a defendant credit for time served
constitutes a new judgment. Gonzalez v. Sherman, 873
F.3d 763, 769 (9th Cir. 2017). We reach the same conclusion
today as to Nevada law. Turner's habeas petition,
therefore, is the first petition challenging his amended
judgment. So we deny his application as unnecessary.