Richard Bryan v. Pat Glebe

MEMORANDUM

Richard Wesley Bryan appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as second or successive. We have jurisdiction under 28 U.S.C. § 2253 . We review de novo, see Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir.2012), and we reverse and remand.

Bryan contends that his 2014 habeas petition is not second or successive to the habeas petition he filed in 2013. We agree. Bryan’s 2013 petition challenged sanctions imposed pursuant to a prison disciplinary proceeding, whereas Bryan’s 2014 habeas petition challenged, for the first time, his underlying conviction. Because different state conduct is at issue, the latter petition is not second or successive. See Magwood v. Patterson, 561 U.S. 320, 333 , 130 S.Ct. 2788 , 177 L.Ed.2d 592 (2010) (“the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged”); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir.2002) (later petition was not second or successive because “Hill’s claims relating to mandatory parole challenge the calculation of his release date rather than the sentence itself’). The state’s reliance on Burton v. Stewart, 549 U.S. 147 , 127 S.Ct. 793 , 166…