FILED

NOT FOR PUBLICATION

JAN 12 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LACEY MARK SIVAK, No. 19-35713

Petitioner-Appellant, D.C. No. 1:16-cv-00189-BLW

v.

MEMORANDUM*

JAY CHRISTENSEN,

Respondent-Appellee.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted November 9, 2021 Portland, Oregon

Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS,** District Judge. Concurrence by Judge CHRISTEN

Petitioner Lacey Sivak, an Idaho state prisoner, appeals the district court’s

dismissal of his petition for habeas corpus brought under 28 U.S.C. § 2254.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Reviewing de novo questions of law, Rhoades v. Henry, 638 F.3d 1027, 1034 (9th

Cir. 2011), we reverse and remand.

1. The issues were adequately preserved. See Kamen v. Kemper Fin.

Servs., Inc., 500 U.S. 90, 99 (1991); United States v. Ullah, 976 F.2d 509, 514 (9th

Cir. 1992).

2. The district court erred when it required Petitioner’s claims to be

exhausted again because of the imposition of a different sentence. When it comes

to exhaustion, the default rule is that a claim must be presented to the state court

once. See O’Sullivan v. Boerckel, 526 U.S. 839, 844 (1999); Castille v. Peoples,

489 U.S. 346, 350 (1989). Thus, to the extent that Petitioner’s guilt-phase claims

have been exhausted already, the new sentence did not require Petitioner to exhaust

the very same guilt-phase claims again.

Magwood v. Patterson, 561 U.S. 320 (2010), is not to the contrary for two

reasons. First, Magwood pertains to a different procedural rule. See id. at 341–42

(“[W]here . . . there is a new judgment intervening between the two habeas

petitions, an application challenging the resulting new judgment is not second or

successive at all.” (internal quotation marks and citation omitted)); see also

Gonzalez v. Sherman, 873 F.3d 763, 774 (9th Cir. 2017) (recognizing Magwood’s

2 holding “that an intervening amended sentence starts an entirely new petition cycle

for purposes of second or successive petitions” (emphasis added)).

Second, Magwood held that “the phrase ‘second or successive’ must be

interpreted with respect to the judgment challenged.” 561 U.S. at 332–33. That

explanation arose from the text of the statute, which connects the petitions to the

judgments. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas

corpus on behalf of a person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that—(A) the applicant has exhausted the

remedies available in the courts of the State . . . .” (emphasis added)). The text

makes plain that a second or successive application pertains to the judgment,

whereas exhaustion does not; exhaustion depends on available remedies. See

O’Sullivan, 526 U.S. at 842 (“Before a federal court may grant habeas relief to a

state prisoner, the prisoner must exhaust his remedies in state court. In other

words, the state prisoner must give the state courts an opportunity to act on his

claims before he presents those claims to a federal court in a habeas petition.”

(emphasis added)). Applying the analysis in Magwood thus makes clear that the

judgment is relevant to analyzing whether an application is “second or successive,”

but is not relevant to an exhaustion analysis.

3 We reject Respondent’s argument that focuses on one sentence from

Magwood: “A petitioner may not raise in federal court an error that he failed to

raise properly in state court in a challenge to the judgment reflecting the error.”

Magwood, 561 U.S. at 340 (emphasis added). According to Respondent, this

means that exhaustion relates to the judgment. But that reading is a strained one

because the sentence connects exhaustion to the challenge; it does not connect

exhaustion to the judgment.

3. The district court denied relief without having before it any record of the

claims from the first federal petition. Thus, we do not—and cannot—know

whether any of the guilt-phase claims had ever been raised in state court. In other

words, we do not know whether Petitioner has exhausted any of the claims in this

case.

Respondent concedes that the record is inadequate for us to determine what

claims were exhausted in state court. Accordingly, we remand this case to the

district court to make the following determinations. First, did Petitioner raise any

guilt-phase claims in state court? Any claims alleged here that were not previously

raised are defaulted and must be dismissed. Second, as to any guilt-phase claims

that Petitioner raised in state court, the district court should determine the

appropriate disposition of such claims.

4 We reverse the dismissal and remand for further proceedings consistent with

this disposition. All pending motions are denied.

REVERSED AND REMANDED.

5

FILED

JAN 12 2022

Sivak v. Christensen, No. 19-35713 CHRISTEN, Circuit Judge, concurring in the judgment. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur with my colleagues’ decision to reverse and remand the district

court’s ruling that Sivak was required to re-exhaust his guilt-phase claims after the

imposition of a new sentence. I write separately because I question our circuit’s

interpretation of Magwood v. Patterson, 561 U.S. 320 (2010), in Wentzell v. Neven,

674 F.3d 1124, 1127 (9th Cir. 2012).

The district court held that Sivak’s second-in-time habeas petition, filed after

an amended judgment, was not “second or successive” for purposes of 28 U.S.C. §

2244(b). In Wentzell, our court interpreted Magwood and determined that, “where

a first habeas petition results in an amended judgment, a subsequent petition is not

successive, even if its claims could have been raised in a prior petition or the

petitioner effectively challenges an unamended component of the judgment.” 674

F.3d at 1127 (internal quotation marks omitted). The petitioner in Wentzell

received conviction and sentencing relief after filing a habeas petition in state

court. Id. at 1125. Wentzell then filed a second federal habeas petition with guilt-

phase and sentencing-phase claims challenging unaltered components of his

original judgment. Id. at 1126-27. While the State argued that Wentzell’s petition

was still “second or successive” because the amended judgment did not alter the

other convictions and sentences that he now challenged, our court held that his claims were not “second or successive.” Id. at 1127 (“[W]e must interpret

successive applications with respect to the judgment challenged and not with

respect to particular components of that judgment.” (citation omitted)). The district

court in our case understood Wentzell’s holding to extend to Sivak’s guilt-phase

claims even though the new judgment in his case imposed only a new sentence.

Other circuits have also read Magwood broadly. See Johnson v. United

States, 623 F.3d 41, 46 (2d Cir. 2010); In re Brown, 594 F. App’x 726, 729 (3d

Cir. 2014) (per curiam); In re Gray, 850 F.3d 139, 142 (4th Cir. 2017); King v.

Morgan, 807 F.3d 154, 158 (6th Cir. 2015); Insignares v. Sec’y, Fla. Dep’t of

Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (per curiam). But in Magwood, the

Supreme Court made clear that it did not reach whether a petitioner who only

receives sentencing relief may challenge his underlying conviction in a

subsequently filed habeas petition. 561 U.S. at 342 (“This case gives us no

occasion to address that question, because Magwood has not attempted to

challenge his underlying conviction.” (footnote omitted)).

Magwood was sentenced to death and he filed a federal habeas petition that

raised both guilt- and sentencing-phase claims. Id. at 323. Only the sentencing

claim was successful. Id. After the trial court reimposed the death sentence,

Magwood filed another habeas petition challenging the new sentence. Id. The

2 district court again found sentencing error but the Eleventh Circuit reversed,

concluding the district court lacked jurisdiction because the subsequently filed

habeas petition was “second or successive” pursuant to 28 U.S.C. § 2244(b). Id.

In a split decision, the Supreme Court disagreed. Id. at 323–24. The Magwood

plurality explained that the phrase “second or successive” in § 2244(b) “must be

interpreted with respect to the judgment challenged,” id. at 333, and held that,

because Magwood had not yet challenged the new judgment, his petition was not

second or successive, see id. at 331–33.

The district court concluded that Wentzell forecloses holding that Sivak’s

petition is “second or successive” pursuant to its interpretation of Magwood, 674

F.3d at 1127. But I question whether Magwood requires that a second-in-time

habeas petition may include guilt-phase claims where a new judgment offers only

sentencing relief. Neither Magwood nor Wentzell presented that scenario. In

Wentzell, petitioner received guilt-phase and sentencing-phase relief. 674

F.3d at 1127. And the Magwood plurality was careful to assuage worries that the

Court’s decision would allow future petitioners who receive only sentencing relief

to raise “any challenge to the guilt phase of the criminal judgment against [them] in

. . . second application[s],” 561 U.S. at 352 (Kennedy, J., dissenting). Rather than

signaling that a complete do-over must be allowed whenever a new judgment is

3 entered, my read is that Magwood stands for the limited proposition that a habeas

petition filed in response to a new judgment is not “second or successive,” and that

the outcome of the claims asserted in such a petition must satisfy the usual rules to

avoid procedural default. Id. at 340 (“If a petitioner does not satisfy the procedural

requirements for bringing an error to the state court’s attention — whether in trial,

appellate or habeas proceedings, as state law may require — procedural default

will bar federal review.” (citing Coleman v. Thompson, 501 U.S. 722, 729–30

(1991)); see also Wentzell, 674 F.3d at 1127 (“[P]rocedural default rules—rather

than the rules governing “second or successive” petitions—are the more

appropriate tools for sorting out new claims from the old.” (citing Magwood, 561

U.S. at 339–41)).

Magwood stops short of allowing all exhausted claims to be pursued in a

subsequently filed habeas petition, 561 U.S. at 340, but Wentzell suggests

otherwise, 674 F.3d at 1127–28. I am not persuaded that there is a basis for

allowing petitioners to raise guilt-phase claims in second-in-time petitions when a

new judgment only affects the petitioner’s sentence, nor is it clear to me that

Wentzell goes that far. But because Magwood holds a petition challenging a new

intervening judgment is not second or successive, 561 U.S. at 340–42, I concur in

the majority’s decision.

4