Woods v. Carey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARNEST CASSELL WOODS, II,  No. 05-55302
Petitioner,
v.  D.C. No.
CV-04-00915-NAJ
TOM L. CAREY,
OPINION
Respondent.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Submitted April 11, 2008*
Pasadena, California
Filed May 12, 2008
Before: Alfred T. Goodwin, Harry Pregerson, and
Dorothy W. Nelson, Circuit Judges.
Opinion by Judge D.W. Nelson
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5299
WOODS v. CAREY 5301
COUNSEL
Kurt David Hermansen, Law Office of Kurt David Herman-
sen, San Diego, California, for the petitioner.
Heather Bushman, Office of the Attorney General, San Diego,
California, for the respondent.
OPINION
D.W. NELSON, Senior Circuit Judge:
Earnest Cassell Woods, a California state prisoner, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas cor-
pus petition. The district court dismissed the petition, con-
cluding it was barred as successive under 28 U.S.C.
§ 2244(b). We vacate and remand, with instructions that the
district court construe Woods’s pro se petition as a motion to
amend the habeas petition that was still pending before the
district court at the time this new petition was filed.
FACTUAL AND PROCEDURAL BACKGROUND
In 1987, Woods was convicted by a jury in the San Diego
County Superior Court of second degree murder and unlawful
5302 WOODS v. CAREY
use of a firearm. Woods is currently incarcerated in a Califor-
nia State Prison, serving a sentence of seventeen years to life.
Woods has filed multiple habeas petitions under 28 U.S.C.
§ 2254. That section provides that “a district court shall enter-
tain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
I. Previous Petition Challenging Denial of Parole
On October 29, 2003, Woods filed a pro se habeas petition
(“2003 petition”) under § 2254 alleging that: (1) the Califor-
nia Board of Prison Terms (“BPT”) failed to consider relevant
information concerning his eligibility for parole; (2) the Cali-
fornia Court of Appeal refused to grant him an evidentiary
hearing regarding the evidence he wanted to present to the
BPT; (3) there was insufficient evidence for the BPT to find
him ineligible for parole; and (4) the BPT abused its discre-
tion by using the wrong standard in declining to set a parole
date. That petition was denied by the district court on Septem-
ber 24, 2004. This court affirmed the district court’s denial on
October 1, 2007. Woods v. Carey, No. 04-57191, 2007 WL
2859716 (9th Cir. Oct. 1, 2007).
II. Current Petition Challenging Classification
On April 30, 2004, before the 2003 petition had been adju-
dicated by the district court, Woods filed another pro se
habeas petition (“2004 petition”). This petition alleges that:
(1) the California Department of Corrections (“CDC”) and
BPT have improperly reclassified him as a “life prisoner”; (2)
this reclassification has deprived him of earned good-time
credits; and (3) the CDC and BPT are improperly forcing him
to attend parole hearings in violation of the California Penal
Code.
WOODS v. CAREY 5303
On December 30, 2004, the district court dismissed
Woods’s petition as successive. It pointed out that under 28
U.S.C. § 2244(b)(3)(A), a district court may not review a
“second or successive” habeas petition unless the petitioner
obtains authorization from the court of appeals. As Woods
had not sought such authorization, his application was dis-
missed. Woods filed a timely pro se notice of appeal on Janu-
ary 12, 2005. On August 13, 2007, this court issued an order
appointing counsel for the petitioner.
JURISDICTION
This court has jurisdiction over final orders of the district
court in habeas proceedings pursuant to 28 U.S.C. § 2253(a).
A state prisoner does not need to obtain a certificate of
appealability under 28 U.S.C. § 2253(c) when challenging an
administrative decision regarding the execution of his sen-
tence. White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004).
STANDARD OF REVIEW
This court reviews de novo a district court’s denial of a
habeas petition. King v. Lamarque, 464 F.3d 963, 965 (9th
Cir. 2006). A district court’s determination that petitioner
failed to establish eligibility under § 2244 to file a successive
petition is reviewed de novo. United States v. Villa-Gonzalez,
208 F.3d 1160, 1165 (9th Cir. 2000); Thompson v. Calderon,
151 F.3d 918, 921 (9th Cir. 1998) (en banc). A district court’s
refusal to review successive claims is reviewed for abuse of
discretion. Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.
1996).
DISCUSSION
[1] “Generally, a new petition is ‘second or successive’ if
it raises claims that were or could have been adjudicated on
their merits in an earlier petition.” Cooper v. Calderon, 274
F.3d 1270, 1273 (9th Cir. 2001). The Antiterrorism and Effec-
5304 WOODS v. CAREY
tive Death Penalty Act (“AEDPA”) implemented a gatekeeper
function, requiring that successive § 2254 petitions be dis-
missed unless they meet one of the exceptions outlined in 28
U.S.C. § 2244(b)(2). Under that provision, a successive appli-
cation is permissible only if it rests on a new rule of constitu-
tional law, facts that were previously unavailable, or facts that
would be sufficient to show constitutional error in the peti-
tioner’s conviction. 28 U.S.C. § 2244(b)(2). Even if a peti-
tioner can demonstrate that he qualifies for one of these
exceptions, he must seek authorization from the court of
appeals before filing his new petition with the district court.
28 U.S.C. § 2244(b)(3).
When Woods filed this petition in April 2004, his previous
habeas petition was still pending before the district court.
Rather than treating the new petition as a motion to amend,
the district court dismissed it as successive for failure to com-
ply with § 2244(b). Woods argues that this was in error. He
urges this court to follow the Second Circuit by holding that,
where a new pro se petition is filed before the adjudication of
a prior petition is complete, the new petition should be con-
strued as a motion to amend the pending petition rather than
as a successive application.1 See Grullon v. Ashcroft, 374 F.3d
137, 138 (2d Cir. 2004) (per curiam); Ching v. United States,
298 F.3d 174, 177 (2d Cir. 2002).
In Ching, the petitioner filed a § 2241 habeas petition
before a final decision had been issued with respect to his
§ 2255 motion.2 Ching, 298 F.3d at 176. Ching’s initial
motion had been denied by the district court, but it was pend-
1
This court has taken the same approach in a previous unpublished
memorandum disposition. See Markay v. Brown, No. 03-16055, 2005 WL
66018 (9th Cir. Jan. 12, 2005).
2
Whereas § 2254 permits a state prisoner to seek post-conviction relief,
§ 2255 applies to federal prisoners. See 28 U.S.C. § 2255. Section 2241
embodies the traditional writ of habeas corpus, permitting an individual to
challenge the legality of his custody in situations where a § 2255 motion
would be inadequate or ineffective. See 28 U.S.C. § 2255.
WOODS v. CAREY 5305
ing before the Second Circuit at the time Ching filed his sec-
ond petition. Id. When the appellate court remanded the initial
petition for further consideration, the district court issued an
order simultaneously dismissing the first petition and holding
that the second petition was successive and therefore must
meet the requirements of § 2244. Id.
[2] The Second Circuit disagreed. It framed the inquiry
before it as “whether [petitioner’s later motion] was in fact
second or successive within the meaning of the statute, or if
instead, the district court should have construed it as a motion
to amend his original § 2255 motion.” Id. at 176-77. The Sec-
ond Circuit noted that AEDPA does not define what consti-
tutes a “second or successive” habeas petition. Id. at 177.
However, “it is clear that for a petition to be ‘second or suc-
cessive’ . . . , it must at a minimum be filed subsequent to the
conclusion” of a proceeding that has “reached final decision.”
Id. (citing Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir.
2001)). The Second Circuit emphasized that this concern is
particularly important in the AEDPA context, “where the
gatekeeping provisions of the statute stringently limit a peti-
tioner’s ability to raise further issues in a subsequent action.”
Id. Accordingly, the court held that “when a § 2255 motion is
filed before adjudication of an initial § 2255 motion is com-
plete, the district court should construe the second § 2255
motion as a motion to amend the pending § 2255 motion.” Id.
In fashioning its holding, the Second Circuit noted the “ten-
sion between the liberal amendment policy embodied in Fed.
R. Civ. P. 15 . . . and the AEDPA’s restrictions on bringing
successive collateral attacks to criminal convictions.” Id. at
179. The court reconciled that tension by noting that “the
decision to grant a motion to amend is committed to the sound
discretion of the district court” and that “the district court may
deny that leave where necessary to thwart tactics that are dila-
tory, unfairly prejudicial or otherwise abusive.” Id. at 180.
This discretion assuaged the Second Circuit’s concern that
prisoners would exploit the ability to amend their pending
5306 WOODS v. CAREY
petitions, thereby undermining AEDPA’s goals of efficiency
and conservation of judicial resources. Thus, Ching’s petition
was transferred back to the district court for reconsideration.
Id. at 182.
[3] In Grullon v. Ashcroft, the Second Circuit extended
Ching to cover successive petitions filed under § 2241. 374
F.3d at 138. There, Grullon filed a third § 2241 petition while
his first petition was pending before the appellate court and
the second was before the district court. Id. at 139. The Sec-
ond Circuit noted that it was “unclear whether a § 2241 claim
is subject to the restrictions on successive petitions,” but
found it “need not decide this question.” Id. at 140. Under
Ching, even if the restrictions did apply, the court held that
the later petition “should not be considered successive, as
[petitioner] ha[d] a prior § 2241 petition pending in the [dis-
trict court], and an appeal from a grant of another § 2241 peti-
tion pending in the [appellate court].” Id.
[4] The Second Circuit’s logic applies with special force in
the context of pro se litigants. “A document filed pro se is ‘to
be liberally construed,’ and a ‘pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’ ” Erickson v.
Pardus, ___ U.S. ___, ___, 127 S. Ct. 2197, 2200 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))
(internal citations omitted); see also Corjasso v. Ayers, 278
F.3d 874, 878 (9th Cir. 2002) (“Pro se habeas petitioners may
not be held to the same technical standards as litigants repre-
sented by counsel.”); United States v. Seesing, 234 F.3d 456,
462 (9th Cir. 2001) (“Pro se complaints and motions from
prisoners are to be liberally construed.”). If Woods had the
benefit of counsel at the time he filed the instant petition, that
counsel certainly would have filed the 2004 claims as an
amendment to the 2003 petition. Accordingly, we follow the
persuasive reasoning of the Second Circuit, and see no reason
why its treatment of petitions filed under § 2255 and § 2241
should not extend equally to petitions filed under § 2254.
WOODS v. CAREY 5307
Thus, we hold that the district court should have construed
Woods’s pro se habeas petition as a motion to amend his
pending habeas petition. The district court then has the discre-
tion to decide whether the motion to amend should be granted.3
[5] Because we decide that the district court should treat
this pro se petition as a motion to amend, we need not reach
the question of whether leave of the court under 28 U.S.C.
§ 2244(b)(3)(A) was required before Woods filed his 2004
petition. Construed as a motion to amend, the 2004 petition
was not a successive petition under the terms of § 2244.
CONCLUSION
For the foregoing reasons, the district court’s order dismiss-
ing the instant petition is vacated. The matter is remanded
with instructions that the district court construe the 2004 peti-
tion as a motion to amend Woods’s earlier petition.
VACATED and REMANDED.
3
We note that in this case, Woods’s 2003 petition has already been
amended once. Accordingly, under Fed. R. Civ. P. 15(a)(2), Woods could
amend the petition again “only with the opposing party’s written consent
or the court’s leave. The court should freely give leave when justice so
requires.”