1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AARON KIRKPATRICK, ) No. CV 17-08917-CAS (AGR) ) 12 Petitioner, ) ) AMENDED ORDER ACCEPTING 13 ) FINDINGS AND v. ) RECOMMENDATION OF UNITED 14 ) STATES MAGISTRATE JUDGE T. FOSS, Warden, ) 15 ) Respondent. ) 16 ) 17 18 Pursuant to

, the Court has reviewed the entire file, including 19 the First Amended Petition for Writ of Habeas Corpus, the Report and 20 Recommendation (“Report”) of the United States Magistrate Judge, and the 21 Objections filed by Petitioner. Further, the Court has engaged in a de novo review of 22 those portions of the Report to which objections were made. The Court agrees with 23 the Report. 24 In his objections, Petitioner argues that the First Amended Petition is not 25 barred by the one-year statute of limitations under the AEDPA because the Superior 26 Court recently denied a petition pursuant to

. Petitioner 27 contends that the denial of his petition constitutes a new judgment. When “there is a 28 1 challenging the resulting new judgment is not second or successive at all.” Magwood 2 v. Patterson,

(2010) (citation omitted). 3 After receiving the objections, the magistrate judge issued an order that 4 required Respondent to lodge both the petitions and any state court decisions, and 5 ordered supplemental briefing by the parties. On September 10, 2019, Respondent 6 lodged the documents and filed a supplemental brief. (Dkt. Nos. 37-38.) On 7 September 30, 2019, Petitioner filed a supplemental objection. (Dkt. No. 39.) 8 On July 11, 2019, the Superior Court denied the petition for two reasons: (1) 9 Petitioner is not eligible for relief pursuant to

and 10 189(e)(1); and (2)

is unconstitutional for various reasons. 11 (Dkt. No. 38-8.) See also People v. Gutierrez-Salazar,

, 419 12 (2019) (finding defendant was not entitled to relief under amended law). The 13 Superior Court “heard the evidence and remains convinced that [Petitioner] and his 14 brother both intentionally and deliberately shot an unarmed gang rival to death on 15 May 16, 2011, that [Petitioner] admitted he was one of the killers, and that as one of 16 two actual killers he is not eligible for sentencing relief pursuant to Penal Code §§ 17 1170.95 and 189(e)(1). (Id. at 2.) 18 The First Amended Petition does not challenge state court’s denial of the 19 petition filed under

. The judgment under which Petitioner 20 is being held in custody and challenged in the First Amended Petition is the judgment 21 that became final on April 26, 2016. (Report at 4); compare Clayton v. Biter, 868

, 844 (9th Cir. 2017) (holding denial of petition for resentencing under Cal. 23 Penal Code § 1170.126 “results in the entry of a new appealable order or judgment” 24 and “therefore constitutes a new judgment”; finding federal habeas petition 25 challenging denial of that petition and not underlying conviction is therefore not 26 second or successive), with Davis v. Sullivan,

, *1 (9th 27 Cir. July 13, 2018) (distinguishing Clayton when federal habeas petition does not 28 challenge denial of resentencing but rather original judgment of conviction). 1 Petitioner’s remaining objections are without merit. 2 IT IS ORDERED that Respondent’s motion to dismiss the First Amended 3 Petition for Writ of Habeas Corpus is GRANTED. 4 IT IS FURTHER ORDERED that Judgment be entered denying the First 5 Amended Petition for Writ of Habeas Corpus as untimely and dismissing the action. 6 Nothing in this order prevents Petitioner from filing a petition for writ of habeas corpus 7 challenging the denial of his state court petition pursuant to

1170.95. The court expresses no view on the merits of such a habeas petition. 9 There is no amendment to the Judgment. 10 11 12 13 DATED: October 2, 2019 CHRISTINA A. SNYDER 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28