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Ninth Circuit: Proposition 47 Creates New, Intervening Judgment to Allow Another Federal Habeas Petition Attacking Entire Case

The U.S. Court of Appeals for the Ninth Circuit held on January 30, 2020, that the “reclassification” of a prior conviction as a misdemeanor under Proposition 47 created a new judgment in the case that allowed a new federal habeas corpus petition attacking the entire case, which would not be a “second or successive” petition.

Nicolas Morales long ago filed a federal habeas corpus petition under 28 U.S.C. § 2254 challenging his 2009 California attempted robbery conviction and 35-year three-strikes sentence.

That petition was denied by the district court as untimely filed. Years later, the state court granted Morales’ motion to “reclassify” his grand and petty theft convictions in the same case as misdemeanors but left his robbery conviction and sentence intact.

Morales then filed another federal habeas petition challenging his robbery conviction, raising the same claims as his previous petition that was dismissed. The district court this time dismissed Morales’ petition as an unauthorized “second or successive” petition, finding that Proposition 47 did not create a new judgment in the state case and Morales was therefore trying to challenge the same judgment as before, which is prohibited under the Antiterrorism and Death Penalty Act without authorization from the Court of Appeals.

Without requiring a certificate of appealability, the Ninth Circuit agreed with Morales that Proposition 47 created a new judgment to allow a second-in-time § 2254 habeas petition.

Under 28 U.S.C. § 2244(b), a federal habeas petition is deemed “second or successive” and cannot be heard in the district court without authorization from the Court of Appeals if it challenges the same judgment as the earlier petition. In Magwood v. Patterson, 561 U.S. 320 (2010), however, the Supreme Court held that when a “new, intervening judgment” is entered by the court, another habeas petition challenging that new judgment is not “second or successive.”

The remedy under Proposition 47, the Ninth Circuit determined, met the qualifications under Magwood. In Morales’ case, the state court had “recalled” its original sentence and then resentenced him to 180 days in county jail (time served) for those counts reduced to misdemeanors. Even though the court never changed the robbery conviction or sentence, the Ninth Circuit still concluded that it was a new, intervening judgment on all of the counts. The Court reasoned that “because these actions led to a change in the sentence and judgment, the abstract of judgment had to be amended as well.”

And not only did Proposition 47 create a new judgment to allow another federal habeas petition in Morales’ robbery case, it even allowed Morales to raise the same claims he had raised in his earlier petition years ago. The rule in the Ninth Circuit is that another habeas petition challenging a new judgment allows an attack on the entire judgment, not just the changed portion of it. Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012). [Writer’s note: The circuits are split on this, with some allowing another petition to challenge only the new changes to the judgment.] Thus, the Court ruled that Morales’ petition was not “second or successive” because Proposition 47 created a “new, intervening judgment” to allow another habeas petition attacking that entire judgment.

Related legal case

Morales v. Sherman

 

 

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