1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NICHOLAS ADAM COX, Case No. 19-cv-05996-JD

8 Petitioner, ORDER DISMISISNG PETITION 9 v. WITH LEAVE TO AMEND

10 RALPH DIAZ, Respondent. 11

12 13 Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus 14 pursuant to

. Petitioner was convicted in Contra Costa County, which is in this 15 district, so venue is proper here. See

(d). He has paid the filing fee. 16 DISCUSSION 17 STANDARD OF REVIEW 18 The Court may consider a petition for writ of habeas corpus “in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.”

(a); Rose v. 21 Hodges,

(1975). Habeas corpus petitions must meet heightened pleading 22 requirements. McFarland v. Scott,

(1994). An application for a federal writ of 23 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 24 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 25 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases,

. “‘[N]otice’ 26 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 27 1 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine,

688, 689 (1st Cir. 1970)). 3 LEGAL CLAIM 4 Petitioner seeks relief regarding a conviction for shooting at an occupied building, shooting 5 from a vehicle and being a violent felon in possession of a firearm. Court records indicate that 6 petitioner already filed a habeas petition in this Court regarding that same conviction. See Cox v. 7 W.L. Muniz, No. 17-cv-5723 JD. Petitioner filed the first petition on October 4, 2017 and the 8 petition was denied on the merits on September 4, 2018. In this second petition, petitioner argues 9 that the state appellate court violated his federal rights when it denied his petition regarding a new 10 and intervening judgment in his case and his request for resentencing based on California Senate 11 Bill 620. Petition at 6. While it appears that petitioner has presented a successive petition, a brief 12 recitation of the background regarding his petition and claim is necessary. 13 In August 2014, petitioner was sentenced to a term of 42 years to life. Petition at 35. On 14 July 12, 2017, the California Department of Corrections and Rehabilitation informed the 15 sentencing judge and petitioner of a possible error in his sentence.

. In August 16 2017, an amended abstract of judgment was issued reflecting a sentence of 41 years to life (instead 17 of 42 years to life).

. 18 On October 11, 2017, the California Governor approved Senate Bill 620 which allowed 19 trial courts at the time of sentencing to strike or dismiss enhancements otherwise required to be 20 imposed pursuant to Penal Code section 12022.52.

The trial court could also apply this at 21 resentencing.

Petitioner filed habeas petitions in state court arguing that his August 2017 22 amended abstract of judgment should be eligible for review under Senate Bill 620 which was 23 enacted two months later. The state courts denied the petitions noting that Senate Bill 620 became 24 effective several months after his amended abstract judgment was filed.

. The state 25 courts noted that under California law, amendments to the penal code are not retroactive unless 26 expressly declared.

California law states that Senate Bill 620 only applies retroactively to 27 nonfinal cases.

. The state courts denied his petitions because petitioner’s amended 1 Bill 620; therefore, he was not entitled to the retroactive benefit and may not seek relief under the 2 bill.

Petitioner then filed this second federal habeas petition. 3 “A claim presented in a second or successive habeas corpus application under section 4 2254 that was not presented in a prior application shall be dismissed . . .”

(b)(2). 5 This is the case unless,

6 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by 7 the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been 8 discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in 9 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no 10 reasonable factfinder would have found the applicant guilty of the underlying offense. 11

(b)(2). 12 “Before a second or successive application permitted by this section is filed in the district 13 court, the applicant shall move in the appropriate court of appeals for an order authorizing the 14 district court to consider the application.”

(b)(3)(A). 15 However, in certain circumstances, a petitioner may present a new habeas petition where 16 there has been a new judgment. A petition challenging a new or intervening judgment is not 17 second or successive even where the intervening judgment left in place an earlier challenged 18 conviction and sentence. Clayton v. Biter,

(9th Cir. 2017). “[W]here . . . there 19 is a ‘new judgment intervening between the two habeas petitions,’ an application challenging the 20 resulting new judgment is not ‘second or successive’ at all.” Smith v. Williams,

, 687 21 (9th Cir. 2017) (quoting Magwood v. Patterson,

(2010)); Wentzell v. Neven, 22

(9th Cir. 2012) (petition not “second or successive” under AEDPA 23 because it was first petition to challenge new, intervening judgment of conviction that was entered 24 after initial, partially successful habeas petition lead to new, amended judgment). 25 In this case the amended judgment was issued in August 2017 before petitioner filed the 26 first petition and well before the Court denied the first petition on the merits. Petitioner had the 27 opportunity to present his claim in the first petition or seek to stay the federal case while he 1 exhausted the new claim. Because the new judgment was not issued between the two habeas 2 petitions, but rather before both petitions, petitioner has presented a second or successive petition 3 and does not indicate that he received permission from the Ninth Circuit. 4 The Court notes that this second petition contains exhibits indicating that while petitioner 5 knew the trial court was considering issuing an amended abstract of judgment, he was not aware 6 that a new abstract had been issued until November 2018, after the first petition was denied. 7 Petition at 54. To the extent that petitioner could perhaps argue that he was not aware of the 8 amended judgment and it therefore qualifies as a new judgment after the first habeas petition was 9 denied, he is still not entitled to relief. Petitioner has only presented a claim regarding state law 10 and the state court’s interpretation of state law. Federal habeas relief is not available for an 11 alleged state law error. See Estelle v. McGuire,

, 67–68 (1991) (a federal habeas court 12 cannot reexamine a state court's interpretation and application of state law). Nor can petitioner 13 make a state law claim into a federal one simply by classifying it under “due process.” See 14 Langford v. Day,

(9th Cir. 1996) (litigant cannot “transform a state-law issue 15 into a federal one merely by asserting a violation of due process”). This second petition is 16 dismissed, and petitioner will be provided one opportunity to amend to address these deficiencies. 17 CONCLUSION 18 1. Within twenty-eight (28) days of service of this order, petitioner must file an 19 amended petition. Failure to file an amended petition within the designated time may result in the 20 dismissal of this action. 21 2. Petitioner must keep the Court informed of any change of address and must comply 22 with the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 23 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.

F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 25 26 27 1 IT IS SO ORDERED. 2 Dated: October 21, 2019 3 4 JAMES TO 5 United Stftes District Judge 6 7 8 9 10 11 a 12

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 NICHOLAS ADAM COX, 4 Case No. 19-cv-05996-JD Plaintiff, 5 ‘ Vv. CERTIFICATE OF SERVICE

5 RALPH DIAZ, Defendant. 8 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 That on October 21, 2019, ISERVED a true and correct copy(ies) of the attached, by 13 = placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 15 receptacle located in the Clerk's office. Q 16

17 || Nicholas Adam Cox ID: AU6159 P.O. Box 8500 42 18 || Coalinga, CA 93210 19 20 Dated: October 21, 2019 21 22 Susan Y. Soong 73 Clerk, United States District Court 24 25 Bf Map . 6 LISA&¢. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28