Alquandre Turner v. Renee Baker ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALQUANDRE H. TURNER, No. 17-72044
Petitioner,
v. OPINION
RENEE BAKER, Warden,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Argued and Submitted November 16, 2018
San Francisco, California
Filed January 15, 2019
Before: A. WALLACE TASHIMA and MILAN D.
SMITH, JR., Circuit Judges, and LAWRENCE L.
PIERSOL, * District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Lawrence L. Piersol, United States District Judge
for the District of South Dakota, sitting by designation.
2 TURNER V. BAKER
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TURNER V. BAKER 3
COUNSEL
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.
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
4 TURNER V. BAKER
amended judgment. So we deny his application as
unnecessary.
FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial in Clark County, Nevada, Turner
was convicted of, among other counts, sexual assault while
possessing a deadly weapon (Count 5). For Count 5, the
Clark County District Court sentenced Turner to life with the
possibility of parole after 10 years, plus a consecutive life
sentence, with the possibility of parole after 10 years, for the
deadly weapon enhancement. The court’s judgment,
however, contained a mistake. It stated that, as to Count 5,
Turner was sentenced to life with the possibility of parole
after ten years, plus an enhancement of “ten (20) years
minimum” for use of a deadly weapon. Moreover, the
judgment of conviction listed no credit for time served by
Turner before sentencing. On direct appeal, the Nevada
Supreme Court affirmed Turner’s judgment.
Turner filed a federal petition for writ of habeas corpus.
That petition was denied without prejudice. Turner then
filed a state petition for postconviction relief. It was also
denied, and Turner did not appeal. Turner filed another
federal habeas petition. It was denied again—this time with
prejudice.
Turner later moved to amend his judgment of conviction
in the Clark County District Court. Turner argued that his
sentence for Count 5 contained a clerical error—the
enhancement for use of a deadly weapon should have stated
“Ten (10) Years” instead of “Ten (20) Years.” Turner also
argued that he was entitled to credit for 154 days of jail time
that he served before he was sentenced.
TURNER V. BAKER 5
The court granted the motion and issued Turner’s
amended judgment. The amended judgment revised the
deadly weapon enhancement on Count 5 to “Ten (10)
Years.” The amended judgment also gave Turner credit for
154 days of time served. The Nevada Supreme Court
affirmed Turner’s amended judgment on June 10, 2015, and
remittitur issued on July 6, 2015.
On April 17, 2017, Turner filed a third federal habeas
petition challenging his conviction and sentence. The
district court dismissed the petition without prejudice as an
unauthorized successive petition. The court reasoned that
because Turner had previously filed two federal habeas
petitions challenging his judgment of conviction, the current
petition was a successive petition that required the
authorization of this court.
Turner then filed an application for leave to file a second
or successive petition pursuant to 28 U.S.C. § 2254. We
appointed counsel for Turner and requested a supplemental
application addressing whether Turner’s amended judgment
constituted a new judgment.
ANALYSIS
I. Turner’s Amended Judgment
The question is whether Turner’s amended judgment
awarding him credit for time served is a new judgment. We
hold that it is.
A. The Meaning of a New Judgment
Among other purposes, AEDPA was enacted to ensure
greater finality of state and federal court judgments in
criminal cases. See Miller-El v. Cockrell, 537 U.S. 322, 337
6 TURNER V. BAKER
(2003). To this end, AEDPA places strict restrictions on “the
repeated filing of habeas petitions that attack the prisoner’s
underlying conviction.” Rishor v. Ferguson, 822 F.3d 482,
490 (9th Cir. 2016) (quoting Leal Garcia v. Quarterman,
573 F.3d 214, 220 (5th Cir. 2009)). A defendant wishing to
file a “second or successive” habeas petition with the district
court must first obtain leave from the appropriate court of
appeals. 28 U.S.C. § 2244(b)(3)(A).
“Second or successive,” however, ought not be
interpreted literally—it is a “term of art.” Slack v. McDaniel,
529 U.S. 473, 486 (2000). Just as consideration in contracts
doesn’t refer to thoughtful deliberation, and standing in
federal courts doesn’t refer to being in an upright position,
so too does “second or successive” not “refe[r] to all § 2254
applications filed second or successively in time.” Panetti
v. Quarterman, 551 U.S. 930, 944 (2007).
In Magwood v. Patterson, the Supreme Court held that
“the phrase ‘second or successive’ must be interpreted with
respect to the judgment challenged.” 561 U.S. 320, 332–33
(2010). Thus, “where . . . there is a ‘new judgment
intervening between the two habeas petitions,’ [the petition]
challenging the resulting new judgment is not ‘second or
successive’ at all.” Id. at 341–42 (citation omitted) (quoting
Burton v. Stewart, 549 U.S. 147, 156 (2007)).
The holding in Magwood leads to the question of what
constitutes a “new judgment.” The Court did not provide a
comprehensive answer—it simply held that the prisoner’s
resentencing in that case was a new judgment. Id. at 342.
Consequently, since Magwood, lower courts have had to
decide how significant the change to a judgment must be to
create a new judgment.
TURNER V. BAKER 7
We confronted that question in Gonzalez. Our decision
provided an example of a change to a judgment that does not
constitute a new judgment: the correction of a scrivener’s
error. Gonzalez, 873 F.3d at 769, 772. “A scrivener’s error
occurs when there is a discrepancy between the court’s oral
pronouncement of the judgment and the written record of
that judgment in the minute order or in the abstract of
judgment.” Id. at 772. We reasoned that when an amended
judgment corrects a scrivener’s error, it does not change the
underlying judgment, but “only the written record that
erroneously reflects that judgment.” Id. As a result, an
amended judgment correcting a scrivener’s error has no legal
consequences, and thus is not a new judgment.
Gonzalez contrasted the correction of a scrivener’s error
with “a court’s recalculation and alteration of the number of
time-served or other similar credits awarded to a petitioner,”
which does constitute a new judgment. Id. at 769. In so
holding, we relied on—and limited our holding to—
California law. Id. California requires prison officials to
subtract a defendant’s time served from the number of days
to which the defendant would have otherwise been
sentenced. Cal. Penal Code § 2900.5(a). Therefore, when
an amended judgment awards a prisoner credit for time
served, it affects “the number of days a convicted individual
will spend in prison.” Gonzalez, 873 F.3d at 769.
“Critical[]” to our holding in Gonzalez was the fact that
a judgment that does not include a prisoner’s credit for time
served is legally invalid. Id. California law requires courts
to correct a judgment that does not include a prisoner’s time
served whenever it is discovered. Id. (citing People v.
Karaman, 842 P.2d 100, 109 n.15 (1992); People v. Taylor,
14 Cal. Rptr. 3d 550, 563 (Ct. App. 2004)). Thus, an
amended judgment awarding a defendant credit for time
8 TURNER V. BAKER
served “remove[s] an invalid basis for incarcerating [the
defendant], and provide[s] a new and valid intervening
judgment to which” the defendant is held in custody. Id. at
770.
B. Whether a Judgment Awarding Credit for Time
Served is a New Judgment in Nevada
Turner argues that Nevada law compels the same
conclusion. Citing Derijk v. State, 373 P.3d 909 (Table)
(Nev. 2011), and Kuykendall v. State, 926 P.2d 781 (Nev.
1996), he contends that a judgment that does not include a
prisoner’s credit for time served is also legally invalid.
We begin with the statutory text. See Hughey v. United
States, 495 U.S. 411, 415 (1990). Nevada Revised Statute
(N.R.S.) § 176.055 governs the credit defendants receive for
time served. That statute states, in relevant part, that
“whenever a sentence of imprisonment . . . is imposed, the
court may order that credit be allowed against the duration
of the sentence.” N.R.S. § 176.055(1). The use of the word
“may” suggests that, unlike in California, the decision
whether to award defendants time served against their
sentences is discretionary, not mandatory. See United States
v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’
when used in a statute, usually implies some degree of
discretion.”).
The Nevada Supreme Court, however, has interpreted
the statute differently. It has held that “despite its
discretionary language, the purpose of [§] 176.055 is to
‘ensure that all time served is credited towards a defendant’s
ultimate sentence.’” State v. Second Judicial Dist. Court ex
rel. County of Washoe, 116 P.3d 834, 836 (Nev. 2005)
(quoting Kuykendall, 926 P.2d at 783). In so ruling, the
Nevada Supreme Court adopted the reasoning of the
TURNER V. BAKER 9
California Supreme Court, which held that courts must
award prisoners credit for time served. See Kuykendall,
926 P.2d at 783.
To be sure, California and Nevada law are not identical.
As Gonzalez recognized, a judgment that does not include a
defendant’s credit for time served is “considered invalid or
‘unlawful’” under California law. 873 F.3d at 769 (quoting
Karaman, 842 P.2d 100, 109 n.15). Nevada courts have not
made such a definitive pronouncement.
Nevertheless, the Nevada Supreme Court has twice
remanded cases to the trial court with instructions that it
amend the defendant’s judgment to include credit for time
served, see Derijk, 373 P.3d at 909; Kuykendall, 926 P.3d at
783, and appellate courts do not remand cases unless the
lower court’s ruling is erroneous. See, e.g., Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 201–02 (2012)
(“[W]hen we reverse . . . we typically remand for resolution
of any claims the lower courts’ error prevented them from
addressing.”). Thus, those decisions implicitly demonstrate
that judgments that do not include a defendant’s credit for
time served are invalid.
Our decision in Gonzalez, although based on California
law, applies to amended judgments awarding defendants
credit for time served in Nevada. California and Nevada law
are sufficiently similar to compel that conclusion. Thus, we
construe Turner’s petition to be a first petition, which does
not require authorization from this court.
II. Timeliness of Turner’s Petition
The government argues that we should deny Turner’s
petition because it was not timely. That issue, however, is
not properly before us. “In reviewing an application for a
10 TURNER V. BAKER
second or successive habeas petition, we do not assess the
cognizability of that petition.” Clayton v. Biter, 868 F.3d
840, 846 (9th Cir. 2017); accord Henry v. Spearman,
899 F.3d 703, 710 (9th Cir. 2018) (“The requirement of a
mere prima facie showing [in an application for leave to file
a second or successive petition] ‘render[s] irrelevant other
possible grounds for dismissal such as ultimate lack of merit,
nonexhaustion, procedural default, and the like.’”) (quoting
Hertz & Liebman, Federal Habeas Corpus Practice and
Procedure § 28.3[d] (7th ed. 2017)).
Having determined that Turner’s petition is a first
petition, we may proceed no further. We transfer the petition
to the district court to consider it as a first petition. See
Clayton, 868 F.3d at 846.
CONCLUSION
Under Nevada law, Turner’s petition is not a second or
successive petition because it challenges a new judgment.
As a result, he does not have to obtain authorization from
this court before filing it. We deny the application as
unnecessary and transfer the petition to the United States
District Court for the District of Nevada with instructions to
consider it as a first habeas petition.
APPLICATION DENIED and PETITION
TRANSFERRED. No costs.