Oshay Johnson v. Brian Duffy

MEMORANDUM

O’Shay Johnson appeals from the district court’s dismissal of his 2013 federal habeas petition as “second or successive” under 28 U.S.C. § 2244 (b). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

Johnson first filed a petition for federal habeas relief in 2008. See Johnson v. Sis-to, No. 2:08-cv-0496 MCE KJMP (E.D.Cal.2008). We previously upheld the dismissal of his 2008 petition as untimely under AEDPA, finding no applicable exceptions. See Johnson v. Singh, 542 F. App’x 615 (9th Cir.2013) (unpublished). After the abstract of judgment was amended in March 2011, Johnson filed his second federal habeas petition in 2013. The federal district court dismissed Johnson’s 2013 habeas petition as “second or successive.”

First, contrary to Johnson’s assertion that a new judgment was entered against him when the California clerk’s office amended the abstract of his 1993 judgment in March 2011, an amendment to an abstract is a clerical change in California, not a new judgment. See People v. Mitchell, 26 Cal.4th 181, 185 , 109 Cal.Rptr.2d 303 , 26 P.3d 1040 (2001) (“An abstract of judgment is not the judgment of conviction; it does not control if…