NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR TORRES, No. 18-56605

Petitioner-Appellant, D.C. No. 2:18-cv-09469-JVS-KS v.

ROD GODWIN, Acting Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted May 5, 2021 Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,** District Judge.

Arthur Torres appeals the district court’s denial of his petition1 for habeas

corpus relief from his California state conviction and three consecutive sentences

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 1 We substitute Acting Warden Rod Godwin in place of the originally named Respondent, Warden Scott Frauenheim, pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure. of life in prison without the possibility of parole. See 28 U.S.C. § 2254. The district

court found the petition to be a “second or successive” petition. See id.

§ 2244(b)(1). We have jurisdiction under 28 U.S.C. § 1291 and review de novo a

district court’s finding that a habeas petition is “second or successive.” See Clayton

v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). We reverse and remand for further

proceedings.

1. In 2018, Torres filed a habeas petition in federal court, raising the

same challenges that he raised in a prior petition. Between these petitions, the

California Supreme Court amended Torres’s judgment to correct his sentence of

three consecutive terms of life imprisonment without the possibility of parole by

adding one more day of credit for presentence custody. The amended judgment,

Torres argued to the district court, constituted a new judgment, and his subsequent

habeas petition therefore was not a “second or successive” petition. The district

court disagreed and dismissed the petition.

2. The parties agree that the district court erred. We concur. The Anti-

Terrorism and Effective Death Penalty Act requires district courts to dismiss a

claim raised in a “second or successive” § 2254 habeas petition that was also

presented in a prior petition. 28 U.S.C. § 2244(b)(1). Not all later petitions,

however, are “second or successive.” See Magwood v. Patterson, 561 U.S. 320,

332 (2010). Instead, because § 2254 discusses challenges from a petitioner in

2 “custody pursuant to a state-court judgment,” § 2254 petitions are tied to

judgments. Id. at 332-33 (emphasis in original). Thus, when there is “a ‘new

judgment intervening between the two habeas petitions,’ [the petition] challenging

the resulting new judgment is not ‘second or successive’ at all.” Id. at 341-42

(quoting Burton v. Stewart, 549 U.S. 147, 156 (2007)). Additionally, because

“[f]inal judgment in a criminal case means sentence,” Burton, 549 U.S. at 156, a

new sentence constitutes a new judgment on which a state prisoner may file a new

habeas petition. See Magwood, 561 U.S. at 342. The later petition may even

challenge undisturbed portions of the original judgment (i.e., the underlying,

undisturbed conviction). See Wentzell v. Neven, 674 F.3d 1124, 1126-28 (9th Cir.

2012)

3. We look to state law to determine whether a change in a petitioner’s

sentence constitutes a new sentence. See Clayton, 868 F.3d at 844. Under

California law, a “sentence that fails to award legally mandated custody credit is

unauthorized.” Gonzalez v. Sherman, 873 F.3d 763, 769 (9th Cir. 2017) (quoting

People v. Taylor, 14 Cal. Rptr. 3d 550, 564 (Cal. Ct. App. 2004)). A California

Superior Court decision correcting a prisoner’s presentence custody credit is a new

sentence that constitutes a new judgment. Id.

4. The California Superior Court entered a new judgment when it

corrected Torres’s sentence. Thus, Torres’s 2018 federal habeas petition was his

3 first petition under the new judgment. The district court erred in finding that the

petition was a “second or successive” petition.

REVERSED AND REMANDED.

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