Thomas Richey v. Steven Sinclair

MEMORANDUM

Petitioner Thomas Richey (“Richey”) appeals the district court’s finding that his petition for a writ of habeas corpus was a “second or successive habeas corpus application” under 28 U.S.C. § 2244 (b). We issued a certificate of appealability on the limited issue of “whether the 2010 amended state court judgment is a new, intervening judgment as described in Magwood v. Patterson, 561 U.S. 320 , 130 S.Ct. 2788 , 177 L.Ed.2d 592 (2010), and Wentzell v. Neven, 674 F.3d 1124, 1126-28 (9th Cir.2012).” We have jurisdiction under 28 U.S.C. § 2253 .

We review de novo a district court’s determination that a petition is “second or successive” under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Wentzell, 674 F.3d at 1126 (citing United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir.2009)).

The U.S. Supreme Court in Magwood held that a habeas petition challenging a new, intervening judgment resulting from a re-sentencing was not a “second or successive application” under 28 U.S.C. § 2244 (b). 561 U.S. at 342 , 130 S.Ct. 2788 . We extended Magwood in Wentzell and held that an amended judgment that vacates a conviction and sentence is a new, intervening…