United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
In its order (Dkt. #14) of April 11, 2013, the court did two things. First, it directed petitioner to show cause why the action should not be dismissed as unexhausted, because petitioner's direct appeal from the second amended judgment of conviction still was pending in the Nevada Supreme Court. On May 15, 2013, the Nevada Supreme Court affirmed the second amended judgment. Ex. F (Dkt. #19). The question of exhaustion due to a pending direct appeal no longer is an issue.
Second, the court determined that this action was not a second or successive petition, subject to the restrictions of 28 U.S.C. § 2244(b), because the petition was challenging the second amended judgment of conviction for the first time. Order, at 2-3 (#14) (quoting Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012), cert. denied 133 S.Ct. 2336 (2013)). Respondents have filed a motion for reconsideration, docketed as objections (#19), to this determination. The court is not persuaded, and the court denies the motion.
The Supreme Court first addressed the interplay of amended judgments and the successive-petition bar of § 2244(b) in Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788 (2010). In 1981, Magwood, the petitioner, was convicted of murder and sentenced to death. In a federal habeas corpus petition filed in 1983,  he received relief from the death penalty because the state trial court had failed to find statutory mitigating circumstances. Id. at 2793. The state trial court held a new sentencing proceeding in 1986, made the required findings, again sentenced Magwood to death, and entered an amended judgment. Id. In a federal habeas corpus petition filed in 1997, Magwood claimed that his sentence was unconstitutional because he did not receive fair warning at the time of the offense that he would be subject to the death penalty. Id. at 2794. Magwood could have raised this claim in his 1983 federal petition, but he did not. Magwood also claimed in his 1997 federal petition that his counsel in the 1986 resentencing proceeding provided ineffective assistance. Magwood could not have raised that claim in his 1983 federal petition because the events had not occurred.
The Court rejected the argument that § 2244(b) allows a petitioner only one opportunity to present a particular claim. The text did not support a one-opportunity rule:
Magwood, in contrast, reads § 2244(b) to apply only to a "second or successive" application challenging the same state-court judgment. According to Magwood, his 1986 resentencing led to a new judgment, and his first application challenging that new judgment cannot be "second or successive" such that § 2244(b) would apply. We agree.
Id. at 2796 (emphasis in original). The Court also rejected the argument that a one-opportunity rule was consistent with the purpose behind § 2244(b). Congress allowed the filing of a second or successive petition if the petitioner could satisfy certain requirements. 28 U.S.C. § 2244(b)(2). The Court determined that the one-opportunity rule would dilute some of those requirements. 130 S.Ct. at 2799.
Magwood involved only a challenge to a sentence imposed in an amended judgment. It did not involve a challenge to the underlying conviction for murder. The 1986 amended judgment did not change the conviction for murder. The Supreme Court left open the question whether a subsequent habeas corpus petition challenging parts of an amended judgment of conviction that were not disturbed could be a second or successive petition within the meaning of § 2244(b). 130 S.Ct. at 2802-03.
The Court of Appeals for the Ninth Circuit answered that question in Wentzell v. Neven . Wentzell pleaded guilty in 1996 in Nevada state court to solicitation to commit murder, principal to the crime of attempted murder, and principal to the crime of theft. In 1998, he filed a federal habeas corpus petition in this court, which dismissed the petition because it was untimely. Wentzell then filed a post-conviction habeas corpus petition in state court. The state court granted relief, ruling that he could not have been convicted of both solicitation to commit murder and principal to the crime of attempted murder. In 2009, the state court entered an amended judgment of conviction that convicted Wentzell of principal to the crime of attempted murder and principal to the crime of theft. The sentences for those two crimes remained the same. In 2010, Wentzell filed another federal habeas corpus petition, challenging the amended judgment of conviction. This court dismissed the petition as untimely and successive. The court of appeals reversed on both reasons. On the question of whether the petition was successive, the court of appeals held, "[W]e conclude, as a matter of first impression, that the basic holding of Magwood applies here: the latter of two petitions is not second or successive' if there is a new judgment intervening between the two habeas petitions.'" Wentzell, 674 F.3d at 1127 (quoting Magwood, 130 S.Ct. at 2802). The Ninth Circuit adopted the reasoning of the Court of Appeals for the Second Circuit. "In light of Magwood, we must interpret successive applications with respect to the judgment challenged and not with respect to particular components of that judgment." Johnson v. U.S., 623 F.3d 41, 46 (2d Cir. 2010).
To the extent that a petition challenging an amended judgment of conviction raised claims that could have been raised in an earlier petition, both Wentzell and Magwood noted that the proper method of disposing of such claims is through application of procedural default rules. Wentzell, 674 F.3d at 1127 (citing Magwood, 130 S.Ct. at 2801-02).
In the current action, petitioner ultimately never has received any relief. On March 28, 1997, petitioner was convicted in state district court of first-degree murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, two counts of robbery with the use of a deadly weapon, and attempted robbery with the use of a deadly weapon. Ex. A (Dkt. #19). Petitioner appealed, and the Nevada Supreme Court affirmed on December 3, 1998. Smith v. State, 988 P.2d 864 (Nev. 1998) (table disposition). Petitioner then filed a federal habeas corpus petition in this court on December 2, 1999, case number 2:99-cv-01691-PMP-LRL. The court dismissed the petition because petitioner had not exhausted his available state-court remedies. Petitioner filed a post-conviction habeas corpus petition in state court on October 30, 2000. Ultimately, the Nevada Supreme Court determined that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726(1). Smith v. State, No. 37387 (Nev. Nov. 20, 2001).
On January 30, 2002, petitioner filed another post-conviction habeas corpus petition in state court. The Nevada Supreme Court determined that this petition was untimely pursuant to Nev. Rev. Stat. § 34.726(1). Smith v. State, No. 39860 (Nev. Apr. 10, 2003). While that state-court petition was pending, petitioner filed another federal habeas corpus petition in this court, case number 3:02cv-00121-DWH-VPC. The court appointed the Federal Public Defender to represent petitioner. The court determined that the petition was untimely pursuant to 28 U.S.C. § 2244(d), and the court of appeals denied a certificate of appealability. On February 23, 2005, petitioner filed in state district court a motion to correct an illegal sentence. The state district court denied the motion. The Nevada Supreme Court affirmed, noting that petitioner's arguments were outside the narrow scope allowed for such a motion. Smith v. State, No. 45258 (Nev. Nov. 10, 2005). Petitioner filed another federal habeas corpus petition, case number 2:06-cv-00976-RCJ-RJJ. The court dismissed this action as successive pursuant to 28 U.S.C. § 2244(b).
On January 30, 2007, petitioner filed in state district court another post-conviction habeas corpus petition. This time, the state district court granted petitioner relief, overturning and vacating the convictions and sentences for first-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. It entered an amended judgment on August 21, 2007. Ex. B (Dkt. #19). The respondents appealed. On January 20, 2009, the Nevada Supreme Court reversed the district court. It found that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726 and that petitioner had not shown good cause to excuse the procedural defect. The Nevada Supreme Court remanded the case to the district court for further proceedings. Ex. C (Dkt. #19). On July 2, 2009, before the state district court did anything on the remand, petitioner asked the court of appeals for authorization to file a second or successive petition, case number 09-72049. The court of appeals denied that request on January 20, 2010. On March 14, 2012, the state district court entered a second amended judgment of conviction that reinstated the convictions and sentences for first-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. Ex. E (Dkt. #19). Petitioner appealed. The Nevada Supreme Court affirmed on May 15, 2013. Ex. F (Dkt. #19).
The court is not persuaded by respondents' attempt to distinguish Wentzell. Respondents note that the amended judgment at issue in Wentzell was a change from the original judgment. In contrast, respondents argue, the second amended judgment is identical to the original judgment and by the trial judge's ...