Turner v. Baker
| Decision Date | 15 January 2019 |
| Docket Number | No. 17-72044,17-72044 |
| Citation | 912 F.3d 1236 |
| Parties | Alquandre H. TURNER, Petitioner, v. Renee BAKER, Warden, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
912 F.3d 1236
Alquandre H. TURNER, Petitioner,
v.
Renee BAKER, Warden, Respondent.
No. 17-72044
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 16, 2018 San Francisco, California
Filed January 15, 2019
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.
Application to File Second or Successive Petition Under 28 U.S.C. § 2254
Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and LAWRENCE L. PIERSOL,* District Judge.
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 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.
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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
In Magwood v. Patterson , the Supreme Court held that "the phrase ‘second or successive’ must be interpreted with respect...
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