NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP MINOR, No. 19-15822

Petitioner-Appellant, D.C. No. 2:15-cv-02005-RFB-PAL

v.

MEMORANDUM*

RENEE BAKER, Warden; ATTORNEY

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Richard Boulware, District Judge, Presiding

Submitted January 14, 2021** San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. We write primarily for the parties who are familiar with the facts. Appellant

Phillip Minor appeals from the dismissal of his federal habeas petition as untimely.

The Nevada state trial court had previously entered a judgment of conviction in 1986

sentencing Minor to life in prison without the possibility of parole after he had

pleaded guilty to first-degree murder. On November 26, 2013, the state trial court

entered a second amended judgment of conviction, modifying the amount of

presentence credit by eight days. Almost two years later, on October 16, 2015,

Minor filed a federal habeas petition under 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The district court dismissed Minor’s petition as untimely under AEDPA’s

one-year statute of limitations, 28 U.S.C. § 2244(d). In order for Minor’s petition to

have been timely, he needed the limitations period to run from the date that the

second amended judgment became final, and he needed to qualify for statutory

tolling under 28 U.S.C. § 2242(d)(2) for the period of time his state petition was

pending.1 Although the district court concluded that the limitations period began to

run from the date the second amended judgment became final, the district court also

determined that Minor’s petition was not “properly filed” for purposes of statutory

tolling under 28 U.S.C. § 2244(d)(2) because the state courts held that the petition

was untimely.

1 Minor’s state petition was pending between September 2, 2014 and July 13, 2015.

2 Our court granted a certificate of appealability with respect to whether

Minor’s 28 U.S.C. § 2254 petition was timely filed.

We review de novo the question whether a petitioner’s application for federal

habeas relief was timely filed. Rudin v. Myles, 781 F.3d 1043, 1053 (9th Cir. 2014).

We also review de novo the question whether AEDPA’s statute of limitations should

be tolled. Id. We conclude that the district court correctly determined that the statute

of limitations began to run from the date the second amended judgment became final,

and that the district court properly dismissed Minor’s petition as untimely because

Minor was disqualified from statutory tolling.

1. Under AEDPA, a one-year limitations period exists for federal habeas

petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). The limitations period runs

from, as relevant here, “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A). The “judgment” refers to “the state judgment pursuant

to which the petitioner is being held.” Smith v. Williams, 871 F.3d 684, 687 (9th Cir.

2017) (interpreting 28 U.S.C. § 2244(d)(1)); see also Magwood v. Patterson, 561

U.S. 320, 330–33 (2010) (interpreting 28 U.S.C. § 2244(b) and holding that

whenever there is a “new judgment,” the procedural limitation on second or

successive habeas petitions refreshes). Where there is a new, amended judgment

pursuant to which the petitioner is being held, the statute of limitations runs from the

3 date of that new judgment. Smith, 871 F.3d at 687–88. The Supreme Court “did not

provide a comprehensive answer” to what constitutes a “new judgment.” Turner v.

Baker, 912 F.3d 1236, 1239 (9th Cir. 2019). Under Nevada law, however, our court

has held that a state court’s amended judgment awarding a defendant credit for time

served constitutes a new judgment. Turner, 912 F.3d at 1240. Accordingly, Minor’s

amended judgment awarding him presentence credit constitutes a new judgment. See

also Gonzalez v. Sherman, 873 F.3d 763, 773 n.5 (9th Cir. 2017) (“For AEDPA

purposes, it does not matter whether the error in the judgment was minor or major.”).

Therefore, the district court properly determined that AEDPA’s one-year limitations

period began to run from the date the second amended judgment became final.

2. AEDPA’s one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1)

must be tolled during the time in which “a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or claim

is pending.” 28 U.S.C. § 2244(d)(2). “When a post-conviction petition is untimely

under state law, that is the end of the matter for purposes of § 2244(d)(2).” Pace v.

DiGuglielmo, 544 U.S. 408, 414 (2005) (quotations and alteration omitted). The

Nevada Supreme Court concluded that Minor’s petition was untimely under state

law, and we are “not at liberty to second guess that court’s decision when it was

acting on direct appeal of the state post-conviction court’s judgment.” Rudin, 781

F.3d at 1054. Thus, Minor’s petition was not properly filed per 28 U.S.C.

4 § 2244(d)(2), and the limitations period does not toll during the time in which the

state petition was pending. Minor’s petition was not timely filed.

AFFIRMED.

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