Uriel Gonzalez v. Stuart Sherman

Filing

FILED OPINION (STEPHEN REINHARDT, ALEX KOZINSKI and TERRENCE BERG) REVERSED AND REMANDED. Judge: SR Authoring. FILED AND ENTERED JUDGMENT. [10612510]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
URIEL GONZALEZ,
Petitioner-Appellant,

No. 14-56855

v.

D.C. No.
2:13-cv-05248-PA-PLA

STUART SHERMAN,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted June 8, 2017
Pasadena, California
Filed October 11, 2017
Before: Stephen Reinhardt and Alex Kozinski, Circuit
Judges, and Terrence Berg, * District Judge.
Opinion by Judge Reinhardt

The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
*

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GONZALEZ V. SHERMAN
SUMMARY **
Habeas Corpus

Reversing the district court’s dismissal of a California
state prisoner’s habeas corpus petition and remanding, the
panel held that a state court’s alteration of the number of
presentence credits to which a prisoner was entitled under
California law constitutes a new, intervening judgment
which renders a subsequent federal habeas petition a first
rather than second or successive petition under 28 U.S.C.
§ 2244(b)(1).
COUNSEL
Vivian Fu (argued), San Francisco, California, for
Petitioner-Appellant.
Stephanie C. Brenan (argued) and Kenneth C. Byrne,
Supervising Deputy Attorneys General; Lance E. Winters,
Senior Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Los Angeles,
California; for Respondent-Appellee.

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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OPINION
REINHARDT, Circuit Judge:
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a state prisoner is ordinarily prohibited
from filing more than one federal petition for writ of habeas
corpus challenging his conviction or sentence. 28 U.S.C.
§ 2244(b). We have previously held, however, that when a
state trial court amends a prisoner’s judgment of conviction,
it creates a new, intervening judgment which a prisoner may
challenge in a federal habeas petition without that petition
being denied as “second or successive” under AEDPA. See
Wentzell v. Neven, 674 F.3d 1124, 1125 (9th Cir. 2012); see
also Magwood v. Patterson, 561 U.S. 320, 341–42 (2010)
(holding that a new judgment renders a second-in-time
petition challenging that judgment not second or
successive). The question in this case is whether a state
court’s alteration of the number of presentence credits to
which a prisoner was entitled under California law
constitutes a new, intervening judgment under Wentzell. We
hold that it does.
BACKGROUND
Uriel Gonzalez was convicted of four counts of
attempted murder in 2001. As part of its determination of
guilt, the jury found true firearm and gang allegations.
Gonzalez was sentenced to serve a term in state prison of
65 years to life. At sentencing, the Superior Court judge
determined that Gonzalez was entitled to 464 days of time
served credits and 69 days of good time credits for a total of
533 days to be credited against the sentence imposed. On
direct appeal, the California Court of Appeal affirmed the
judgment. The California Supreme Court denied review on
October 23, 2002.

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Gonzalez filed a federal petition for writ of habeas
corpus on October 20, 2011. While Gonzalez’s federal
habeas petition was pending, he filed a state petition for
postconviction relief in Superior Court on November 7,
2011. Notice of Lodging at 2, Gonzalez v. Trimble, No. CV
11-8690-PA (PLA), 2013 WL 571760 (C.D. Cal. Feb. 12,
2013). His state petition was denied on December 14, 2011.
Id. Gonzalez filed a “Request for Reconsideration” with the
Superior Court on December 23, 2011, which was denied on
December 30, 2011. Id. On March 22, 2012, Gonzalez filed
a state habeas petition in the California Court of Appeal,
which was denied on April 5, 2012. Id. at 3. He then filed
a state petition with the California Supreme Court on
February 14, 2012, which was denied on May 9, 2012. The
district court denied Gonzalez’s federal habeas petition with
prejudice as time-barred on February 12, 2013.
On April 10, 2013, Gonzalez filed a motion for
correction of the record in the California Superior Court
pursuant to California Penal Code section 1237.1,
contending that he was entitled to 482 days in time served
credits and 72 days in good time credits for a total of
554 days of presentence credit, instead of the 533 days that
the trial court had awarded him. On April 24, 2013, the court
granted his motion, ordered Gonzalez’s credits amended,
and directed that an amended abstract of judgment be
prepared reflecting the additional credit granted. The
amended abstract of judgment was filed April 26, 2013.
Gonzalez then filed a motion for reconsideration of the
court’s order, requesting a formal resentencing hearing and
a motion for correction of the record in the trial court. The
Superior Court denied the motion, the Court of Appeal
denied the appeal, and the California Supreme Court denied
review.

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On June 6, 2013, Gonzalez filed a new federal habeas
petition in district court challenging both his conviction and
sentence. See Petition for Writ of Habeas Corpus by a
Person in State Custody, Gonzalez v. Brazelton, No. 2:13cv-04053-PA-PLA (C.D. Cal. June 6, 2013). The district
court summarily dismissed the petition without prejudice as
second or successive on June 13, 2013. See Order
Dismissing Successive Petition Without Prejudice, Gonzalez
v. Brazelton, No. 2:13-cv-04053-PA-PLA (C.D. Cal. June
13, 2013).
Gonzalez filed an identical federal habeas petition on
July 19, 2013, along with a motion for the district court to
take judicial notice of this circuit’s decision in Wentzell. The
district court dismissed the petition without prejudice as an
unauthorized second or successive petition on October 29,
2014 based on the report and recommendation of the
magistrate judge. In his report and recommendation, the
magistrate judge rejected the argument that the Superior
Court’s amendment to the number of credits due to petitioner
was an intervening judgment, stating that the court was
“merely fixing a computational error,” and that there was
“nothing to indicate that the modification of credits had any
effect on the finality of petitioner’s judgment of sentence.”
The magistrate judge reasoned that this conclusion was
supported by the fact that, although not expressly labeled as
such, “it appears that the order operates as [a ‘nunc pro tunc’
order]” because it directed the award of custody credits
amended as of the original sentencing date, which order the
magistrate judge called “retroactive.” The court interpreted
Magwood and Wentzell as limited to “the finality of
petitioner’s judgment of sentence,” and found that
Gonzalez’s initial sentence remained final. The parties
agreed that for purposes of AEDPA, the July 19 petition is

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the first federal petition filed after the Superior Court
amended Gonzalez’s credits.
We granted a certificate of appealability with respect to
whether the district court properly dismissed appellant’s
petition as second or successive.
STANDARD OF REVIEW
We review de novo the district court’s determination that
a petition is “second or successive” under AEDPA. Wentzell
v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012).
DISCUSSION
I.
AEDPA places strict limitations on the ability of a
petitioner held pursuant to a state judgment to file a second
or successive federal petition for writ of habeas corpus. A
claim in a second or successive petition that was presented
in a prior application “shall be dismissed.” 28 U.S.C.
§ 2244(b)(1). Likewise, a claim presented in a second or
successive petition that was not presented in a prior
application “shall be dismissed unless” certain criteria are
met. Id. § 2244(b)(2). Before a petitioner can file a second
or successive petition, he must obtain leave from the Court
of Appeals. Id. § 2244(b)(3).
The phrase “second or successive,” however, “does not
simply ‘refe[r] to all § 2254 applications filed second or
successively in time.’” Magwood v. Patterson, 561 U.S.
320, 332 (2010) (alteration in original) (quoting Panetti v.
Quarterman, 551 U.S. 930, 944 (2007)). In Magwood, the
Supreme Court held that “both § 2254(b)’s text and the relief
it provides indicate that the phrase ‘second or successive’

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must be interpreted with respect to the judgment
challenged.” 561 U.S. at 332–33. As a result, “where . . .
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.” Id. at 341–42
(citation omitted).
Magwood concerned an Alabama state prisoner who had
been sentenced to death for murder. Id. at 323. Magwood
filed a federal petition for habeas corpus arguing that the trial
court failed to consider statutory mitigating circumstances
regarding his mental state, and the district court vacated his
sentence and conditionally granted the writ. Id. at 326. The
state trial court held a new sentencing proceeding, in which
the trial court considered Magwood’s mental state but
nonetheless sentenced him to death a second time. Id. The
trial court emphasized that “the new ‘judgment and sentence
[were] the result of a complete and new assessment of all the
evidence, arguments of counsel, and law.’” Id. (alteration in
original) (quoting the state trial court sentencing
proceedings). After exhausting state remedies, Magwood
filed a federal habeas petition challenging his new death
sentence. Id. at 327–28. The district court sua sponte
considered whether the petition was second or successive
under 28 U.S.C. § 2244 and concluded that it was not. Id. at
328. The Eleventh Circuit concluded that it was and
reversed. Id. at 329.
The Supreme Court then reversed the court of appeals,
holding that Magwood’s petition was not second or
successive because it challenged his second death sentence
rather than his first: “Because Magwood’s habeas
application challenges a new judgment for the first time, it is
not ‘second or successive’ under § 2244(b).” Id. at 323–24.
The Court relied on “[t]he requirement of custody pursuant

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to a state-court judgment” included in AEDPA’s text, which
“distinguishes § 2254 from other statutory provisions
authorizing relief from constitutional violations.” Id. at 333.
The Court determined that an application for writ of habeas
corpus by a state prisoner is inextricably bound to the
judgment pursuant to which the prisoner is being held
because “[a] § 2254 petitioner is applying for something: his
petition ‘seeks invalidation (in whole or in part) of the
judgment authorizing the prisoner’s confinement.’” Id. at
332 (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005)).
Thus, the Court concluded, when a petitioner receives a new
sentence and challenges that new sentence, his petition is not
second or successive. Rather, the petitioner is challenging
the sentence pursuant to which he is being held, or, more
specifically, he is challenging the judgment pursuant to
which he is incarcerated. The Court left open the question
whether, after resentencing, a petitioner would be entitled to
challenge “not only his resulting, new sentence, but also his
original, undisturbed conviction.” Id. at 342.
We answered the question left open in Magwood in
Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012). In
Wentzell, we held that an amended judgment constitutes a
new, intervening judgment that renders a subsequent habeas
petition not second or successive even if the petition
challenges only undisturbed portions of the original
judgment. 674 F.3d at 1126–28. The petitioner in Wentzell
pled guilty in Nevada state court to three crimes:
“solicitation to commit murder (Count I), principal to the
crime of attempted murder (Count II), and principal to the
crime of theft (Count III),” with all of his sentences to run
consecutively. Id. at 1125. Wentzell then filed an untimely
federal petition for writ of habeas corpus. Id. The Nevada
state court subsequently granted in part Wentzell’s state
habeas petition, which argued that under Nevada law, a

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criminal defendant could not be convicted of both
solicitation to commit murder and principal in the attempt to
commit state murder. Id. The court therefore ordered an
amended judgment of conviction dismissing Count I and its
resulting sentence. Id. After an amended judgment
containing only Counts II and III was filed, Wentzell filed a
federal habeas petition. Id. at 1126.
We held that Wentzell’s petition was not second or
successive, even though the petition challenged his
conviction and sentence on Counts II and III, which were not
altered in any way by the amended judgment. Id. at 1127.
We held that “the basic holding of Magwood” must extend
to cases in which the numerically second petition challenged
undisturbed parts of the judgment because Magwood
requires courts to “interpret successive applications with
respect to the judgment challenged and not with respect to
particular components of that judgment.” Id. (emphasis
added) (quoting Johnson v. United States, 623 F.3d 41, 46
(2d Cir. 2010)). Although in some cases this would allow
petitioners a number of opportunities to raise the same
claims in various federal petitions, this court recognized that
this result was consistent with Magwood, in which “[t]he
Supreme Court rejected . . . a ‘one opportunity rule.’” Id.
Thus, as long as there has been a “new, intervening
judgment,” a prisoner’s subsequent petition cannot be
second or successive. Id. at 1128.
In short, under the law of this circuit and the Supreme
Court, a petition is not second or successive when there is an
amended judgment and the petition is the first one following
that amended judgment. The case before us presents the
question whether an amendment limited to correcting a
defendant’s presentence credit award constitutes a new,
intervening judgment which renders a subsequent federal

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habeas petition a first rather than second or successive
petition under 28 U.S.C. § 2244(b)(1).
II.
Applying the reasoning of Magwood and Wentzell, we
hold that in California, a court’s recalculation and alteration
of the number of time-served or other similar credits
awarded to a petitioner constitutes a new judgment. The
Supreme Court has directed that “[t]he sentence is the
judgment” in a criminal case. Burton v. Stewart, 549 U.S.
147, 156 (2007) (emphasis added) (quoting Berman v.
United States, 302 U.S. 211, 212 (1937)). As such, a change
to a defendant’s sentence is a change to his judgment. Under
California law, custody credits are part of that sentence and
a court’s alteration of the number of credits awarded to a
defendant changes both the duration and legality of his
sentence. Because the relevant sentence under Magwood is
the one “pursuant to” which an individual is held “in
custody,” such an alteration constitutes a new, intervening
judgment.
A.
We look to state law to determine whether a state court
action constitutes a new, intervening judgment. Clayton v.
Biter, 868 F.3d 840, 844 (9th Cir. 2017). Under California
law, it is clear that the number of presentence credits a
prisoner earns is a part of that prisoner’s sentence because it
is a component of the number of days a convicted individual
will spend in prison. When sentencing a defendant, a state
court must determine the number of days of custody to which
the defendant is entitled to credit and then award credit
according to an established formula. Cal. Penal Code
§ 2900.5(d). Prison officials must then subtract those days
from the total number of days to which the defendant would

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otherwise have been sentenced. Id. § 2900.5(a) (“In all
felony and misdemeanor convictions, either by plea or by
verdict, when the defendant has been in custody, . . . all days
of custody of the defendant . . . shall be credited upon his or
her term of imprisonment . . . .”). The result is the total
duration of time which a convicted person will have to spend
in prison. Any erroneous assessment of credits therefore
results in the defendant spending more or fewer days in
prison than the sentence should have required.
Critically, under California law, only a sentence that
awards a prisoner all credits to which he is entitled is a
legally valid one. That is, a “sentence that fails to award
legally mandated custody credit is unauthorized and may be
corrected whenever discovered.” People v. Taylor, 119 Cal.
App. 4th 628, 647 (2004). Such an unauthorized sentence
“is considered invalid or ‘unlawful.’” People v. Karaman,
842 P.2d 100, 109 n.15 (Cal. 1992).
As a result, a state trial court’s alteration of the number
of presentence credits to which a prisoner is entitled is a
legally significant act: it replaces an invalid sentence with a
valid one. In determining whether, after amending the
number of credits, there has been a new judgment “pursuant
to” which a prisoner is “in custody” under Magwood,
561 U.S. at 332 (quoting 28 U.S.C. § 2254(b)(1)), the
answer under California law is yes: before the amendment,
the prisoner was not held in custody pursuant to a lawful
judgment of the state courts and was being held for a greater
number of days than was proper under California law. After
the amendment, however, there is a valid judgment pursuant
to which the prisoner is lawfully being held in custody and
he is being held for a lesser (and the correct) number of

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days. 1 Thus, as in Wentzell and contrary to the state’s
argument that the amendment to Gonzalez’s presentence
credits “did not affect [his] conviction or sentence,” the
amendment removed an invalid basis for incarcerating
Gonzalez, and provided a new and valid intervening
judgment pursuant to which he was then being held in
custody. See Wentzell, 674 F.3d at 1126–28.
That the Superior Court amended Gonzalez’s
presentence credits and then directed that an amended
abstract of judgment be prepared further demonstrates that
the court’s order changed the sentence itself. Under
California law, the judgment of conviction is an “oral
pronouncement” at sentencing. People v. Mesa, 535 P.2d
337, 340 (Cal. 1975). The “abstract of judgment” is the
clerk’s official recitation of the oral judgment of conviction,
which must be provided to the state prison official charged
with executing the judgment. See Cal. Penal Code
§ 1213(a). By statute, the abstract of judgment must reflect
the sentence, including the “[t]otal number of days to be
credited” against the term of imprisonment imposed by the
sentencing court. Cal. Penal Code § 2900.5(d); People v.
Cardenas, 239 Cal. App. 4th 220, 236 (2015).
Because the “abstract of judgment is not the judgment of
conviction” and “does not control if different from the
court’s oral judgment,” a court must amend the abstract of
judgment any time there is a discrepancy between the two.
People v. Mitchell, 26 P.3d 1040, 1042 (Cal. 2001). The
1
For example, in People v. Garner, 244 Cal. App. 4th 1113 (2016),
because the “judgment must include a custody credit award” to which
the defendant is legally entitled and the defendant’s original sentence did
not reflect those credits, the Court of Appeal “modif[ied] the judgment”
to include the correct presentence credits. Id. at 1118–19.

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California Supreme Court has emphasized that it is
especially “important,” and indeed necessary, to “correct
errors and omissions in abstracts of judgment” because those
written documents provide the “authority for carrying the
judgment and sentence into effect.” Id. at 1042–43. Here, a
minute order reflects that the Superior Court first found that
the credits initially awarded to Gonzalez were calculated
incorrectly and so “order[ed] the defendant credits
amended.” Then, because the abstract of judgment is used
to effectuate the judgment and so must accurately reflect the
sentence, the Superior Court instructed that an “amended
abstract of judgment [] be prepared” as well. This was a
necessary action following the correction of an award of
presentence credits.
Because the recalculation of
presentence credits necessarily led to a change in the
sentence and judgment, the abstract of judgment had to be
amended as well so as to reflect that change. In short,
because the addition of time served credits to his sentence
constituted an amended judgment, Gonzalez’s first habeas
petition filed after that intervening judgment was a first, not
a second or successive, petition, regardless of how many
habeas petitions he had filed prior to that new judgment.
B.
The state’s entire argument is founded on a procedural
statutory provision allowing a superior court to amend
certain types of errors rather than having those errors
amended by order of a court of appeal. For the sake of
convenience and judicial economy, California has
established a procedure for correcting “minor sentencing
errors” that do not require a formal appellate process.
People v. Delgado, 210 Cal. App. 4th 761, 765–66 (2012)
(analyzing the legislative history of California Penal Code
§ 1237.1, adopted in 1995 by the state legislature). Section

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1237.1 sets forth the procedure for a whole range of minor
sentencing errors, which include “an error in ‘doing the
math,’” “an apparent oversight in an award of credits,” and
more traditional clerical or scrivener’s errors. Id. at 765. To
correct such errors, a defendant must present those claims to
the superior court rather to the appellate court. Cal. Penal
Code § 1237.1.
The magistrate judge’s report and recommendation
(which was adopted by the district court), as well as the state
on appeal, mistakenly relies on the Delgado court’s use of
the phrase “mathematical or clerical error” in describing the
kind of error that may be corrected by the superior court as
its basis for erroneously concluding that a correction of
presentence credits does not result in a new judgment. 2
However, Delgado considers solely the process by which a
defendant seeks to correct minor sentencing errors. The fact
that an error in the calculation of presentence credits can be
corrected by the superior court rather than on appeal has no
bearing on the legal effect of that correction. Regardless of
how Delgado denominated the errors and the manner by
which they are corrected, there is no dispute that here,
Gonzalez’s sentence had to be amended to reflect the credits
to which he was legally entitled. Under California law, a
“sentence that fails to award legally mandated custody credit
is unauthorized.” Taylor, 119 Cal. App. 4th at 647.
Moreover, it is not even a legal sentence. See Karaman,
The magistrate judge also relies on People v. Jack, 213 Cal. App.
3d 913 (1989), which distinguishes between types of errors and the
procedures by which California courts correct those errors, although
Jack precedes the adoption of the process set forth in section 1237.1 and
described in Delgado. Since the issuance of Delgado, California’s
appellate courts have followed that decision.
2

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842 P.2d at 109 n.15. Whatever the technical name for the
error, until the miscalculation is corrected there is no valid
sentence pursuant to which the defendant may be held in
custody; but once the proper credits are added to the
sentence, the entire judgment is amended and the amended
judgment becomes the judgment pursuant to which the
defendant is held in custody. 3
A miscalculation of the credits to be included in the
sentence, or in other words, this type of mathematical error
in the judgment, is not to be confused with another type of
minor sentencing error—a scrivener’s error—which is also
within that category of errors not ordinarily requiring action
by an appellate court. A scrivener’s error occurs when there
This common-sense approach to determining whether a new
sentence exists for purposes of AEDPA is similar to the approach used
in what appears to be the most analogous case decided by a federal court
of appeals. In In re Stansell, 828 F.3d 412 (6th Cir. 2016), the Sixth
Circuit considered whether a state trial court’s subsequent imposition of
a period of supervised release that did not alter the period of incarceration
to which the defendant was sentenced constituted a new, intervening
judgment. The court concluded that it did. Although the change might
be described as a “technical amendment” or “ministerial change,” the
Sixth Circuit looked to that change’s effect instead: “[b]efore his
resentencing, the judgment that kept Stansell ‘in custody’ was a term of
imprisonment ranging from twenty years to life. After his resentencing,
the judgment that kept Stansell ‘in custody’ was a term of imprisonment
ranging from twenty years to life plus five years of post-release control.”
Id. at 416–17. Here, too, we look to the effect of a change under state
law on a petitioner’s sentence. Before the Superior Court amended
Gonzalez’s presentence credits, “the judgment that kept [Gonzalez] ‘in
custody’ was a term of imprisonment ranging from [65 years] to life
[minus 533 days]. After [the amendment], the judgment that kept
[Gonzalez] ‘in custody’ was a term of imprisonment ranging from
[65 years] to life [minus 533 days],” and minus an additional twenty-one
days. Id. at 416.
3

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is a discrepancy between the court’s oral pronouncement of
the judgment and the written record of that judgment in the
minute order or in the abstract of judgment. For example, a
scrivener’s error occurs if the oral pronouncement of
judgment is “5 years” but the clerk writes “50 years” in the
written document reflecting that judgment. Under California
law, when there is a difference between the trial court’s oral
judgment and the written abstract of judgment, the oral
pronouncement controls as it constitutes the actual
judgment. Mitchell, 26 P.3d at 1043. Correcting a
scrivener’s error in the abstract of judgment does not lead to
a new judgment because the judgment itself does not change,
only the written record that erroneously reflects that
judgment. 4 In the above example, the judgment pronounced
orally would remain at 5 years and the abstract of judgment
would be amended to correctly reflect that 5-year judgment.
Unlike an error in the calculation of credits when the oral
judgment itself is in error such that both the judgment and
abstract of judgment must be amended, a scrivener’s error
carries no legal consequences as it is only the record that
must be corrected and that record does not contain the actual
judgment or the actual sentence to be served.

This interpretation is consistent with other federal courts of appeals
that have similarly concluded that corrections to scrivener’s errors do not
give rise to a new, intervening judgment. See In re Stansell, 828 F.3d at
420 (stating that corrections of any “discrepancy between the court’s oral
pronouncement and its paper records” are not “new judgments for
purposes of the second or successive requirements”); Marmolejos v.
United States, 789 F.3d 66, 71 (2d Cir. 2015) (holding that “an amended
judgment merely correcting errors that were clerical”—correcting a
misspelling of the defendant’s name from “Marmolejas” to the correct
“Marmolejos”—“does not constitute a ‘new judgment’ within the
meaning of Magwood”).
4

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C.
The magistrate judge concluded, and the state argues on
appeal, that the amendment to Gonzalez’s presentence
credits operated as a nunc pro tunc order—even if not so
labeled by the Superior Court—because the court directed
the award of custody credits amended “as of the original
sentencing date.” The magistrate judge reasoned that nunc
pro tunc “literally means ‘now for then,’ and is ‘used in
reference to an act to show that it has retroactive legal
effect. . . . as if done at [the] time when it ought to have been
done.’” Gonzalez v. Diaz, NO. CV 13-5248-PA (PLA),
2014 WL 5493874, at *6 (C.D. Cal. June 11, 2014) (quoting
United States v. Yepez, 704 F.3d 1087, 1092 n.1 (9th Cir.
2012) (en banc) (Wardlaw, J., dissenting)). Thus, the
magistrate judge concluded that the minute order did not
affect the finality of the initial judgment. This erroneous
conclusion represents a misunderstanding of when nunc pro
tunc orders are appropriate under California law and what it
means for an order to be retroactive.
The Superior Court did not label its minute order
amending the presentence credits as a nunc pro tunc order
because it could not. In California, “the function of a nunc
pro tunc order is merely to correct the record of the judgment
and not to alter the judgment actually rendered.” In re
Eckstrom’s Estate, 54 Cal. 2d 540, 544 (1960) (citation
omitted) (emphasis added); see also People v. Borja, 95 Cal.
App. 4th 481, 485 (2002) (holding that trial court erred in
issuing nunc pro tunc order where defendant “sought a
retroactive change in his sentence” to reduce the number of
days sentenced). Thus, nunc pro tunc orders can be used
only to correct errors of the scrivener’s sort—“recording
errors.” They may not be used to correct errors of the
mathematical sort which lead to a substantive change in the

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judgment—“rendering errors.” The magistrate judge’s
conclusion that the minute order was akin to a nunc pro tunc
order reflects his failure to understand the different types of
errors covered by the procedural statute that requires the
sentencing court to correct “minor sentencing errors”
directly. See Delgado, 210 Cal. App. 4th at 765–66.
Specifically, a mathematical error contained in the oral
judgment is a “rendering error” that must be corrected in
order for the defendant to be held pursuant to a valid
judgment and thus cannot be ordered nunc pro tunc. In
contrast, a scrivener’s error in a minute order or an abstract
of judgment is a “recording error” that must be corrected to
make those documents consistent with the oral
pronouncement (the judgment) and may be ordered nunc pro
tunc. 5
Further, contrary to the magistrate judge’s view, it is of
no moment that the Superior Court ordered the presentence
credits amended “as of the original sentencing date.” Every
order correcting a sentencing error is “retroactive” in this
sense: the defendant’s sentence still starts from the time of
the original sentence’s imposition, but for more or less time
depending on the amendment. It would make no sense to
restart the defendant’s sentence as of the date of the
amendment when he has already served part or all of the
sentence. The state gives no explanation as to why an
alteration of a prisoner’s presentence credits based on a
calculation error is any more retroactive or “nunc pro tunc”
For AEDPA purposes, it does not matter whether the error in the
judgment was minor or major. What matters is whether there is an
amended judgment. Even if the judgment is not substantively changed,
it constitutes a new, intervening judgment if the earlier judgment is
amended or even if it is reissued as an amended judgment as in
Magwood. Here, the judgment, because it contains the new, correct
provision of presentence credits, is an amended judgment.
5

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than any other order correcting an unlawful or invalid
sentence. In Wentzell, for example, the state court amended
the judgment of conviction to dismiss Count 1 and the
sentence under Count 1. 674 F.3d at 1125. The amended
judgment reflected convictions and sentences for Counts 2
and 3, which remained the same as in the original judgment:
20 years and 10 years. Id. This order was retroactive in the
sense that the duration of time served was to be calculated
from the date of the original judgment, rather than from the
date of the amendment. Nevertheless, the amendment to the
judgment was clearly a new judgment under Magwood. So,
too, with the amendment to Gonzalez’s presentence credits,
and thus to his sentence.
III.
In recognition of the fact that our holding will likely have
the effect of allowing more prisoners to file timely federal
habeas petitions, we conclude by reiterating what the
Supreme Court said in Magwood about the limited effect of
broadening the rule that a petition is not second or successive
while recognizing that an intervening amended sentence
starts an entirely new petition cycle for purposes of second
or successive petitions. First, the Court said, the procedural
default rule will continue to limit what claims may be
brought in a federal petition: “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. Thus, the petitioner will be
limited to claims he has already made before the state court.
As a result, even after an amendment to a prisoner’s
presentence credits, federal courts will not be forced to waste
time considering new “abusive claims.” See id. Second,
even if after such a resentencing, a petitioner files a new
petition reraising all of the arguments previously rejected by

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a federal court, “[i]t will not take a court long to dispose of
such claims where the court has already analyzed the legal
issues.” Id. at 340 n.15. Accordingly, in line with the
Court’s explanation, our holding places little burden on our
system by following the now well-established rule endorsed
by Magwood and Wentzell.
CONCLUSION
For the forgoing reasons, the district court’s dismissal of
Gonzalez’s petition for writ of habeas corpus is reversed and
the case is remanded for proceedings consistent with this
opinion.
REVERSED AND REMANDED.