Montalvo v. California Department of Corrections & Rehabilitation ( 2015 )

FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MONTALVO, No. 14-15768
Petitioner - Appellant, D.C. No. 2:13-cv-01276-MCE
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
John Montalvo appeals from the district court’s dismissal of his 28 U.S.C.
§ 2254 habeas petition as second or successive. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 2253. We review de novo, see Wentzell v. Neven, 674 F.3d 1124, 1126
(9th Cir. 2012), and we reverse and remand.
Montalvo contends that his habeas petition is not second or successive under
section 2244(b) because it is his first challenge to the March 1, 2011, decision by
the California Board of Parole Hearings (“the Board”) denying him parole. As an
initial matter, we deny as unnecessary Montalvo’s request to expand the certificate
of appealability (“COA”) to address this issue because it is encompassed within the
district court’s order granting a COA. See Tillema v. Long, 253 F.3d 494, 502 n.11
(9th Cir. 2001) (court may consider meaning of language contained in AEDPA’s
statute of limitations provisions when the district court certified the question of
whether the habeas petition was timely), abrogated in part on other grounds in
Pliler v. Ford, 542 U.S. 225 (2004).
The district court concluded that Montalvo’s 2012 habeas petition is second
or successive to his 2008 habeas petition.1 The latter petition, however, challenged
the Board’s 2006 decision denying Montalvo parole. In contrast, Montalvo’s 2012
habeas petition pertains to a different state action – the Board’s 2011 decision –
that occurred after the district court denied Montalvo’s 2008 habeas petition. We,
1
We grant appellant’s request for judicial notice of documents from Eastern
District of California case numbers 2:08-cv-1197-GEB-EFB, and 2:08-cv-01224-
LKK-CKD.
2 14-15768
accordingly, agree with Montalvo that his 2012 habeas petition is not second or
successive under section 2244(b), notwithstanding the similarity of some of the
claims in the two petitions. See Wentzell, 674 F.3d at 1126-28 (a second-in-time
habeas petition filed after a new, intervening judgment is not second or successive
even though it challenges unchanged portions of the original judgment); United
States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (per curiam) (prisoner may
file a second-in-time petition raising claims that became ripe for adjudication after
conclusion of first habeas proceeding).
We decline to address appellee’s argument that the dismissal of Montalvo’s
petition should be affirmed on the alternate ground that it is untimely, which the
district court can address in the first instance on remand.
REVERSED and REMANDED for further proceedings.
3 14-15768