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Turner v. Baker

United States Court of Appeals, Ninth Circuit

January 15, 2019

Alquandre H. Turner, Petitioner,
v.
Renee Baker, Warden, Respondent.

          Argued and Submitted November 16, 2018 San Francisco, California

          Application to File Second or Successive Petition Under 28 U.S.C. § 2254

          Thomas L. Qualls (argued), Reno, Nevada, for Petitioner.

          Heidi 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.

         SUMMARY [**]

         Habeas Corpus

         The 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.

         The 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.

         The 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.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         When 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 sentencing.

         We 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.

         FACTUAL AND ...


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