Tony Goodrum v. Timothy Busby , 824 F.3d 1188 ( 2016 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TONY GOODRUM,                         No. 13-55010
    Petitioner-Appellant,
    D.C. No.
    v.                  3:11-cv-02262-IEG-JMA
    TIMOTHY E. BUSBY,
    Warden,                                   OPINION
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    Irma E. Gonzalez, Senior District Judge, Presiding
    Argued and Submitted January 5, 2016
    Pasadena, California
    Filed June 9, 2016
    Before: Milan D. Smith, Jr., Paul J. Watford,
    and Michelle T. Friedland, Circuit Judges.
    Opinion by Judge Watford
    2                      GOODRUM V. BUSBY
    SUMMARY*
    Habeas Corpus
    Reversing the district court’s dismissal of a habeas corpus
    petition, the panel held that the petition was not “second or
    successive,” and the petitioner was not required to meet the
    standard for obtaining relief under 
    28 U.S.C. § 2244
    (b).
    The panel held that, just as a new petition filed in the
    district court while a first petition remains pending is not
    second or successive, a new petition filed in the court of
    appeals while a first petition remains pending also is not a
    second or successive petition subject to the stringent standard
    set forth in § 2244(b).
    COUNSEL
    Tony Faryar Farmani (argued), Farmani, APLC, San Diego,
    California, for Petitioner-Appellant.
    Kevin Vienna (argued), Supervising Deputy Attorney
    General; Kamala D. Harris, Attorney General of California;
    Gerald A. Engler, Chief Assistant Attorney General; Office
    of the Attorney General, San Diego, California, for
    Respondent-Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    GOODRUM V. BUSBY                         3
    OPINION
    WATFORD, Circuit Judge:
    Tony Goodrum is a California state prisoner serving a 21-
    year sentence for voluntary manslaughter. The district court
    denied his petition for a writ of habeas corpus under 
    28 U.S.C. § 2254
    . The court held that Goodrum’s petition
    constituted a “second or successive” petition under 
    28 U.S.C. § 2244
    (b), and that he failed to meet that statute’s stringent
    standard for obtaining relief. Goodrum argues that he should
    not have been required to meet § 2244(b)’s stringent standard
    because his petition is not, in fact, “second or successive.”
    We agree with Goodrum.
    I
    Because the facts underlying Goodrum’s conviction are
    not directly relevant to this appeal, a brief summary will
    suffice. The State charged Goodrum with murder after he
    shot and killed an acquaintance of his, Dwayne Stamps,
    during a heated argument in the garage of Goodrum’s home.
    At trial, Goodrum testified that he shot Stamps in self-defense
    when Stamps charged at him armed with a metal pipe. The
    key contested issue at trial was whether Stamps actually had
    a metal pipe in his hands at the time Goodrum shot him.
    Police officers found a metal pipe under Stamps’ body at the
    crime scene, but investigators recovered only a partial print
    from the pipe that could not be matched to anyone present in
    the garage. The prosecution’s case rested to a significant
    extent on testimony from four individuals who saw all or part
    of the encounter between Goodrum and Stamps. Each of
    them testified that they did not see Stamps with a metal pipe
    in his hands. The jury convicted Goodrum of voluntary
    4                   GOODRUM V. BUSBY
    manslaughter, most likely on the theory that he acted in self-
    defense but that his belief in the need for use of deadly force
    was objectively unreasonable.
    Following his conviction, Goodrum unsuccessfully
    pursued a direct appeal in the California appellate courts
    challenging mainly the jury instructions given at trial.
    Goodrum then filed a series of habeas corpus petitions in state
    court that asserted, as relevant here, claims of police and
    prosecutorial misconduct and ineffective assistance of
    counsel. Those claims were predicated on allegations that
    officers had mishandled the metal pipe found at the crime
    scene (thereby destroying potentially recoverable prints); and
    on an affidavit from Howard Herring, one of the four
    witnesses mentioned above, who asserted that Stamps had in
    fact been armed with a metal pipe but that the police and
    prosecutor had coerced him into providing false testimony at
    trial by threatening him with criminal charges if he refused to
    cooperate with them. Goodrum claimed that he received
    ineffective assistance of counsel because his trial lawyer
    failed to investigate and expose this misconduct.
    The state trial court and Court of Appeal denied habeas
    relief on these claims. To exhaust the remedies available in
    state court, Goodrum filed another habeas petition raising the
    same claims in the California Supreme Court.
    In April 2007, while his habeas petition remained pending
    before the California Supreme Court, Goodrum filed a pro se
    habeas petition in federal court raising only the claims he had
    already exhausted on direct appeal. Less than two months
    later, on June 13, 2007, the California Supreme Court denied
    relief, rendering his claims for police and prosecutorial
    misconduct and ineffective assistance of counsel exhausted.
    GOODRUM V. BUSBY                          5
    On June 20, 2007, Goodrum sought to add these newly
    exhausted claims to his federal habeas proceeding. But
    instead of filing a motion in the district court to amend his
    pending federal habeas petition, Goodrum filed in our court
    an “Application for Leave to File Second or Successive
    Petition.” As is customary, he attached to his application the
    new habeas petition he sought leave to file.
    Goodrum thought he needed our court’s permission to file
    the new petition because state prisoners must obtain
    authorization from the court of appeals before filing a
    “second or successive” petition in the district court.
    
    28 U.S.C. § 2244
    (b)(3)(A). Goodrum assumed, not
    unreasonably for a lay person, that he needed to obtain such
    authorization because he had already filed one federal petition
    two months earlier. But, as we will explain shortly,
    Goodrum’s new petition was not a “second or successive”
    petition as that term is used in § 2244. He did not need our
    court’s permission to file it; he could have filed it in the
    district court straight away. Instead of telling Goodrum that,
    though, we issued an order in September 2007 that stated the
    following:
    This application for authorization to file a
    second or successive 
    28 U.S.C. § 2254
     habeas
    corpus petition in the district court is denied
    without prejudice to refiling should petitioner
    receive an unfavorable disposition of the first
    petition that is currently pending in the district
    court.
    Goodrum understandably interpreted this order to mean,
    not that his request for leave to file the new petition was
    unnecessary, but rather that it was premature, in the sense that
    6                    GOODRUM V. BUSBY
    he needed to finish litigating his pending April 2007 petition
    before our court would consider the application. Goodrum
    read the order to say that he could return to our court and
    renew his request for leave to file the new petition if he failed
    to win relief on the claims raised in his first petition.
    Goodrum followed that course of action. He litigated the
    claims raised in his April 2007 petition, and the district court
    ultimately denied relief. On appeal, our court affirmed. We
    denied Goodrum’s petition for rehearing en banc on
    September 3, 2010, and the Supreme Court subsequently
    denied his petition for certiorari.
    On October 29, 2010, as instructed, Goodrum returned to
    our court and refiled his “Application for Leave to File
    Second or Successive Petition.” In his application, Goodrum
    noted that the September 2007 order had said he could refile
    his application if he received an unfavorable disposition of
    his first petition. “Now that this has happened,” he wrote,
    “Petitioner now renews his Application in compliance with
    that order.” On August 31, 2011, we granted him leave to file
    the new petition.
    On September 23, 2011, Goodrum filed his new habeas
    petition in the district court. On December 1, 2011, he
    amended that petition with the district court’s permission.
    (The claims alleged in the December 2011 petition are not
    identical to the claims alleged in the petition Goodrum sought
    leave to file back in June 2007. We address the implications
    of that fact at the end of this opinion.)
    The district court dismissed the new petition with
    prejudice. The court began by rejecting Goodrum’s argument
    that his petition should not be deemed “second or successive”
    at all. That classification matters because a petitioner raising
    GOODRUM V. BUSBY                         7
    new claims in a second or successive petition must meet a
    more demanding standard to obtain relief than the standard
    applicable to claims raised in a first petition. See 
    28 U.S.C. § 2244
    (b)(2). Goodrum argued that our court had erred by
    denying his earlier application in September 2007. Rather
    than denying the application, Goodrum asserted, we should
    have construed it as a request to amend his then-pending
    April 2007 petition and transferred the new petition, which he
    had attached to his application, to the district court. His
    claims would then have been reviewed, along with his other
    pending claims, under the less demanding standard
    applicable to first petitions. See 
    28 U.S.C. § 2254
    (d)–(e). As
    Goodrum pointed out, we held less than a year after issuing
    the September 2007 order that when a pro se petitioner files
    a new petition in the district court while an earlier-filed
    petition is still pending, the district court must construe the
    new petition as a motion to amend the pending petition rather
    than as an unauthorized second or successive petition. Woods
    v. Carey, 
    525 F.3d 886
    , 887–90 (9th Cir. 2008).
    The district court held that Woods v. Carey applies only
    when a pro se petitioner files a new petition in the district
    court—not, as in this case, when the petitioner files his new
    petition in the court of appeals. The district court concluded
    that Goodrum therefore had to meet the more demanding
    standard applicable to second or successive petitions, and
    that he could not do so. The court nonetheless granted
    Goodrum a certificate of appealability on his claims for
    police and prosecutorial misconduct and ineffective
    assistance of counsel.
    8                           GOODRUM V. BUSBY
    II
    Section 2244(b) states that “[a] claim presented in a
    second or successive habeas corpus application under section
    2254 that was not presented in a prior application shall be
    dismissed,” subject to two narrow exceptions (one requiring
    reliance on a new rule of constitutional law made retroactive
    to cases on collateral review, the other requiring proof of
    newly discovered facts). 
    28 U.S.C. § 2244
    (b)(2).1 Congress
    added this provision as part of the Antiterrorism and Effective
    Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104–132,
    § 106(b), 
    110 Stat. 1214
    , 1220–21. Its purpose was to codify,
    in modified form, the judge-made “abuse of the writ” doctrine
    that federal courts had devised to combat serial filings by
    1
    Section 2244(b)(2) provides:
    A claim presented in a second or successive habeas
    corpus application under section 2254 that was not
    presented in a prior application shall be dismissed
    unless—
    (A) the applicant shows that the claim relies on a new
    rule of constitutional law, made retroactive to cases on
    collateral review by the Supreme Court, that was
    previously unavailable; or
    (B)(i) the factual predicate for the claim could not have
    been discovered previously through the exercise of due
    diligence; and
    (ii) the facts underlying the claim, if proven and viewed
    in light of the evidence as a whole, would be sufficient
    to establish by clear and convincing evidence that, but
    for constitutional error, no reasonable factfinder would
    have found the applicant guilty of the underlying
    offense.
    GOODRUM V. BUSBY                         9
    habeas petitioners. See Felker v. Turpin, 
    518 U.S. 651
    , 664
    (1996). The doctrine developed around the premise that
    habeas petitioners should generally be “entitled to one, but
    only one, full and fair opportunity to wage a collateral
    attack.” Beyer v. Litscher, 
    306 F.3d 504
    , 508 (7th Cir. 2002)
    (quoting O’Connor v. United States, 
    133 F.3d 548
    , 550 (7th
    Cir. 1998)). Petitioners seeking habeas relief were thus
    required to conduct a diligent investigation before filing so
    that all reasonably available claims could be included in their
    first petition. McCleskey v. Zant, 
    499 U.S. 467
    , 490–91, 498
    (1991); see Johnson v. United States, 
    196 F.3d 802
    , 805 (7th
    Cir. 1999). Claims raised in a second or successive petition
    were subject to dismissal as an abuse of the writ. Slack v.
    McDaniel, 
    529 U.S. 473
    , 486 (2000).
    The pre-AEDPA abuse-of-the-writ doctrine required
    courts to answer two distinct questions: Is the petition at
    issue second or successive; and if so, should it be dismissed
    as an abuse of the writ? To answer the former question,
    courts developed a set of rules to determine when a
    numerically second (or third, or fourth, etc.) petition should
    be deemed second or successive. To answer the latter
    question, courts developed a standard, which evolved over
    time, to determine when a petition properly classified as
    second or successive should be dismissed as an abuse of the
    writ. At the time of AEDPA’s enactment, that standard
    required courts to dismiss claims asserted in a second or
    successive petition unless the petitioner could show either
    “cause and prejudice” (basically a legitimate excuse for not
    raising the claims in an earlier petition) or a fundamental
    miscarriage of justice (that is, a showing of probable
    innocence). McCleskey, 
    499 U.S. at
    493–94.
    10                 GOODRUM V. BUSBY
    When Congress enacted AEDPA, it changed the standard
    used to determine when a petition properly classified as
    second or successive should be dismissed as an abuse of the
    writ. See 2 Randy Hertz & James S. Liebman, Federal
    Habeas Corpus Practice and Procedure § 28.3[e], at 1725 (7th
    ed. 2016) (Hertz & Liebman). Under AEDPA’s new
    standard, if a second or successive petition presents claims
    that were already raised in an earlier petition and denied on
    the merits, those claims must be dismissed, period. 
    28 U.S.C. § 2244
    (b)(1). If a second or successive petition presents new
    claims that were not previously raised, those claims must be
    dismissed as well, unless the petitioner meets the stringent
    standard mentioned above requiring reliance on a new rule of
    constitutional law or proof of newly discovered facts.
    § 2244(b)(2).
    Congress did not, however, alter the set of rules federal
    habeas courts had developed to determine whether a petition
    is second or successive. Section 2244(b) incorporates the
    phrase “second or successive,” and by its terms applies only
    to claims raised in a “second or successive” petition, but
    Congress did not attempt to define what “second or
    successive” means. So courts have naturally assumed that the
    term carries the same meaning it did under the pre-AEDPA
    abuse-of-the-writ doctrine. Hill v. State of Alaska, 
    297 F.3d 895
    , 897–98 (9th Cir. 2002); Crouch v. Norris, 
    251 F.3d 720
    ,
    723–24 (8th Cir. 2001); Muniz v. United States, 
    236 F.3d 122
    ,
    127 (2d Cir. 2001) (per curiam). Whether a petition is second
    or successive remains a threshold question under § 2244(b),
    just as it was under the pre-AEDPA regime. Magwood v.
    Patterson, 
    561 U.S. 320
    , 336–37 (2010); Muniz, 
    236 F.3d at 125
    . In other words, § 2244(b)’s demanding standard applies
    only if a petition is properly classified as second or
    successive.
    GOODRUM V. BUSBY                         11
    “Second or successive” is a term of art in habeas corpus
    law. Slack, 
    529 U.S. at 486
    . The Supreme Court “has
    declined to interpret ‘second or successive’ as referring to all
    § 2254 applications filed second or successively in time, even
    when the later filings address a state-court judgment already
    challenged in a prior § 2254 application.” Panetti v.
    Quarterman, 
    551 U.S. 930
    , 944 (2007). Instead, courts have
    held that in certain circumstances petitions that follow an
    earlier-filed petition should not be deemed second or
    successive because, as a categorical matter, they do not
    constitute an abuse of the writ. For example, if a petitioner
    files a first petition that the court dismisses on technical
    procedural grounds without reaching the merits, a subsequent
    petition will not be deemed second or successive even if it
    attacks the same judgment. See, e.g., Muniz, 
    236 F.3d at 129
    (first petition erroneously dismissed as untimely); Phillips v.
    Seiter, 
    173 F.3d 609
    , 610 (7th Cir. 1999) (first petition
    dismissed because it was filed in the wrong court); Hamilton
    v. Vasquez, 
    882 F.2d 1469
    , 1473 (9th Cir. 1989) (first petition
    dismissed without prejudice because it contained unexhausted
    claims). As a general principle, the rule that emerged is that
    a petition will not be deemed second or successive unless, at
    a minimum, an earlier-filed petition has been finally
    adjudicated. Woods, 
    525 F.3d at 889
    ; 2 Hertz & Liebman
    § 28.3[b], at 1674–75. Thus, when a petitioner files a new
    petition while his first petition remains pending, courts have
    uniformly held that the new petition cannot be deemed
    second or successive. See, e.g., United States v. Sellner,
    
    773 F.3d 927
    , 931–32 (8th Cir. 2014); Ching v. United States,
    
    298 F.3d 174
    , 177 (2d Cir. 2002).
    We adopted the rule just mentioned as the law of our
    circuit in Woods v. Carey, 
    525 F.3d 886
     (9th Cir. 2008).
    There, a pro se petitioner filed his first habeas petition in the
    12                   GOODRUM V. BUSBY
    district court. Before that petition had been finally
    adjudicated, he filed a second petition in the same court. The
    district court dismissed the second petition on the ground that
    it was “second or successive” under § 2244(b)(3) and that the
    petitioner needed, but had not obtained, our court’s
    authorization to file it. We held that the district court erred
    by regarding the new petition as second or successive
    because, at the time the new petition was filed, the first
    petition remained pending and had not been finally
    adjudicated. Id. at 888–90. We further held that, because the
    petitioner was proceeding pro se, the district court was
    required to construe the new petition as a motion to amend
    the first petition. Id. at 890. We vacated the district court’s
    order dismissing the new petition and remanded for the court
    to exercise its discretion in deciding whether to permit
    amendment under Federal Rule of Civil Procedure 15. (The
    petitioner had already amended his first petition once, so he
    was not entitled to amend it again as a matter of right. Id. at
    890 n.3.)
    The reason for the rule reflected in Woods is simple: A
    petitioner who seeks to assert new claims before his first
    petition has been finally adjudicated is not, by any stretch,
    abusing the writ. He is instead attempting, as the abuse-of-
    the-writ doctrine requires, to litigate all available claims in a
    single proceeding. See Hill, 
    297 F.3d at
    897–99. If the
    district court improperly dismisses the second-in-time
    petition instead of construing it as a motion to amend, the
    case must be remanded so that the petition can be adjudicated
    under the standard applicable to first petitions. See Muniz,
    
    236 F.3d at 129
    .
    In our view, the dispositive question raised by this appeal
    is whether our holding in Woods should apply not just to
    GOODRUM V. BUSBY                          13
    district courts, but to our court as well. For the only
    difference between this case and Woods is that Goodrum filed
    his second-in-time petition in this court—he attached it to his
    June 2007 application—whereas the petitioner in Woods filed
    his second-in-time petition in the district court. We can think
    of no sound reason why the same obligation we imposed on
    district courts in Woods should not apply to our court (with
    one caveat discussed below). If a pro se petitioner files an
    application under § 2244(b)(3) requesting leave to file a new
    petition while his first petition remains pending, our court,
    too, should be obligated to construe the application as a
    motion to amend the pending petition. That rule is necessary
    because pro se petitioners are prone to make the same
    mistake made by the district court in Woods: They may
    erroneously assume that a new petition filed while their first
    petition remains pending constitutes a “second or successive”
    petition under § 2244(b)(3). And in cases involving doubt
    about whether a petition will be deemed second or successive,
    we want petitioners to seek authorization in our court first,
    rather than filing directly in the district court. See Benton v.
    Washington, 
    106 F.3d 162
    , 165 (7th Cir. 1996). When pro se
    petitioners follow that prudent course, they should not receive
    less protection than petitioners who barrel ahead in the
    district court.
    There is one caveat, as mentioned above. When a new
    petition is filed in the district court, that court is presumed to
    know whether the earlier-filed petition remains pending.
    That is not always true of our court. When we receive an
    application for permission to file a new petition, we will not
    necessarily know the status of an earlier-filed petition unless
    the petitioner tells us. We do not have an obligation to
    research the status of earlier-filed petitions to determine
    whether a pro se petitioner is requesting leave to file a
    14                    GOODRUM V. BUSBY
    petition that is not in fact second or successive. See Pliler v.
    Ford, 
    542 U.S. 225
    , 231 (2004). But when the petitioner
    informs us that an earlier-filed petition remains pending (as
    will typically be the case, since our court’s form application
    specifically requests this information), we are no differently
    situated from district courts with respect to the obligation
    imposed by Woods. There is thus no reason in such cases
    why the rule in Woods should not apply to our court as well.
    Upon construing an application under § 2244(b)(3) as a
    motion to amend, our court’s obligation obviously differs
    from the district court’s in terms of what to do next. When a
    district court construes a new petition as a motion to amend,
    that court’s obligation is to rule on the motion, in accordance
    with the standards for permitting amendment established by
    Federal Rule of Civil Procedure 15. See 
    28 U.S.C. § 2242
    ;
    Woods, 
    525 F.3d at 890
    . Our court lacks authority to rule on
    such a motion in the first instance. But at least two options
    are available to satisfy our obligation under Woods. We can
    issue an order advising the pro se petitioner that his
    application is being denied as unnecessary on the ground that
    the new petition he seeks leave to file is not second or
    successive, and that he is therefore free to file it in the district
    court. See, e.g., Benton, 
    106 F.3d at 165
     (using similar
    language). The petitioner presumably will do so, which will
    then trigger the district court’s obligation under Woods.
    Alternatively, if the petitioner attaches the new petition to his
    application, as our Circuit Rule 22-3(a)(1) requires, we can
    transfer the petition to the district court under 
    28 U.S.C. § 2241
    (b) and Federal Rule of Appellate Procedure 22(a).
    See Martinez-Villareal v. Stewart, 
    118 F.3d 628
    , 634–35 (9th
    Cir. 1997) (per curiam), aff’d, 
    523 U.S. 637
     (1998). That,
    too, will trigger the district court’s obligation to construe the
    new petition as a motion to amend under Woods.
    GOODRUM V. BUSBY                         15
    In light of the above, we conclude that our court erred by
    issuing the September 2007 order in the form that we did.
    Most critically, we failed to inform Goodrum that the petition
    he sought leave to file was not second or successive, and that
    he was therefore free to file it in the district court. We
    instead told him that his application was being denied
    “without prejudice to refiling” it at a later time, in the event
    that Goodrum received “an unfavorable disposition of the
    first petition that is currently pending in the district court.”
    Our order was affirmatively misleading (albeit
    unintentionally so) because it suggested that Goodrum’s
    application had been filed too early—that it would not be ripe
    for our court’s consideration until after he had tried, but
    failed, to win relief on the claims already pending before the
    district court. That suggestion was inaccurate and, absent our
    corrective here, would undoubtedly have prejudiced
    Goodrum: By following our suggested course of action, he
    would have forfeited any opportunity to have his new claims
    adjudicated under the standard applicable to first petitions,
    and would instead have been forced to satisfy the more
    demanding standard applicable to second or successive
    petitions under § 2244(b)(2). Goodrum should not be the one
    to pay the price for our court’s unforced error.
    The State contends that our holding is inconsistent with
    the Supreme Court’s decision in Pliler, which held that
    federal courts are not obligated to make case-specific
    assessments of the options open to a pro se litigant and then
    to advise the litigant about the wisdom of choosing one
    option over another. Pliler, 
    542 U.S. at
    231–34. But that is
    not the sort of obligation we are imposing here, any more
    than it is the obligation we imposed on district courts in
    Woods. We are simply applying a well-settled maxim—that
    pleadings filed by pro se litigants are to be liberally
    16                   GOODRUM V. BUSBY
    construed—to the pleadings filed in our own court. Far from
    requiring our court to make any case-specific advisements to
    pro se petitioners about the wisdom of pursuing one option
    over another, we hold only that our court has an obligation
    when ruling on a pro se petitioner’s application under
    § 2244(b)(3) not to affirmatively mislead him as to the reason
    the application was denied. That is unfortunately what we
    did here, and remedying the error does not, as the State
    contends, require us “to act as counsel or paralegal” to
    Goodrum. Id. at 231.
    The question that remains is what we should do to remedy
    the error. We think the most sensible remedy is to place
    Goodrum in the position he would have occupied had our
    court not erred in the first place. Had we properly construed
    his June 2007 application under § 2244(b)(3) as a motion to
    amend, we would have told him that he did not need our
    court’s permission to file his new petition in the district court,
    and he presumably would have done that forthwith. Or,
    alternatively, we would have transferred his new petition to
    the district court. In either event, the district court would
    have been required to decide whether to allow amendment of
    Goodrum’s pending first petition in accordance with the
    standards set by Federal Rule of Civil Procedure 15. Here,
    however, unlike in Woods, the district court would not have
    had the discretion to deny leave to amend. Goodrum was
    entitled to amend his petition as of right in June 2007 because
    at that point the State had not yet filed a response to his
    original petition. See Mayle v. Felix, 
    545 U.S. 644
    , 663
    (2005). For that reason, we remand this case to the district
    court with instructions to adjudicate the petition Goodrum
    filed with this court in June 2007 as a first petition, not as a
    second or successive petition. See Muniz, 
    236 F.3d at 129
    .
    GOODRUM V. BUSBY                               17
    We recognize that there are some differences between the
    claims alleged in Goodrum’s June 2007 petition and the
    claims alleged in the amended petition he eventually filed in
    the district court in December 2011. We leave it to the
    district court to decide on remand whether the claims alleged
    in the December 2011 petition reflect permissible
    amendments to the claims alleged in the June 2007 petition.
    Goodrum is entitled to litigate the set of claims alleged in the
    June 2007 petition, including permissible amendments to
    those claims, see Mayle, 
    545 U.S. at 664
    ; Hebner v. McGrath,
    
    543 F.3d 1133
    , 1137–38 (9th Cir. 2008), under the standard
    applicable to first petitions. 
    28 U.S.C. § 2254
    (d)–(e).
    Whether Goodrum is entitled to relief under that standard is
    a matter the district court must resolve in the first instance,
    after conducting an evidentiary hearing if necessary.2
    REVERSED and REMANDED.
    2
    To the extent Goodrum’s December 2011 petition raises claims that do
    not qualify as permissible amendments to the June 2007 petition, those
    claims are subject to the standard governing second or successive petitions
    under § 2244(b)(2).