Smith v. Spearman

Filing 18

ORDER DENYING MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE denying 8 Motion to Dismiss. (Illston, Susan) (Filed on 11/17/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 3:20-cv-00322-SI Document 18 Filed 11/17/20 Page 1 of 3

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ANTHONY SMITH,
Petitioner,

8
9
10

United States District Court
Northern District of California

11

Case No. 20-cv-00322-SI
ORDER DENYING MOTION TO
DISMISS AND SETTING BRIEFING
SCHEDULE

v.
SPEARMAN,
Respondent.

Dkt. No. 8

12
13

Anthony Smith filed this action for writ of habeas corpus to challenge a 2009 burglary

14

conviction he suffered in Alameda County Superior Court. Respondent has moved to dismiss the

15

petition for failure to comply with the habeas statute of limitations. The motion will be denied

16

without prejudice because respondent has not adequately demonstrated that a 2nd amended abstract

17

of judgment does not affect the timeliness of the federal petition.

18

Smith was sentenced on January 8, 2010. See Docket No. 8-2 at 10. On appeal, the

19

California Court of Appeal remanded for the trial court to either strike or impose a term for Smith’s

20

fourth prior conviction, and affirmed in all other respects. Docket No. 8-1 at 8-9. On December 5,

21

2011, the trial court struck the fourth prior conviction and filed an amended abstract of judgment.

22

Docket No. 8-4 at 3, 4. A “2nd amended abstract” of judgment was filed on January 4, 2019, that

23

was essentially the same as the earlier amended abstract of judgment except that it added that the

24

defendant was sentenced under “PC 667.6(c)(21)” in addition to being sentenced (as had been

25

reported in the amended abstract) under “PC 667(b)-(i) or 1170.12.” Docket No. 9-6 at 2 (item 8).

26

There is a one-year statute of limitations for filing a federal petition for writ of habeas corpus.

27

See 28 U.S.C. § 2244(d). It appears that Smith’s federal petition filed less than one year after that

28

2nd amended abstract was filed would be timely if that 2nd amended abstract is considered a new

Case 3:20-cv-00322-SI Document 18 Filed 11/17/20 Page 2 of 3

1

judgment, but likely would not be timely if the 2nd amended abstract is not considered a new

2

judgment (because the limitations period would have commenced in or about 2011 rather than in

3

2019). See Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017).
Respondent urges that the 2nd amended abstract did not constitute a new judgment because

5

it was merely the correction of a clerical omission in the original abstract. Respondent appears

6

correct on the law: the issuance of an amended abstract of judgment to correct a scrivener’s error

7

does not change the underlying judgment and therefore does not constitute a new judgment. See

8

Gonzalez v. Sherman, 873 F.3d 763, 772 (9th Cir. 2017). However, respondent has not made an

9

adequate record to demonstrate that the 2nd amended abstract was, in fact, merely a correction of a

10

clerical error. For example, the record does not include the original sentencing transcript, any court

11

United States District Court
Northern District of California

4

minutes from January 4, 2019, or even any letters from the CDCR requesting a correction of the

12

amended abstract of judgment – any of which might support the view that the 2nd amended abstract

13

was prepared just to correct an error in an earlier abstract. Without any documentation showing

14

why the 2nd amended abstract was issued, this court cannot conclude that it was merely a correction

15

of a clerical omission such that it did not amount to a new judgment.

16

There also is a question whether the 2nd amended abstract can be viewed as merely a

17

correction of a clerical omission if it was itself erroneous. The 2nd amended abstract states that

18

Smith was sentenced under California Penal Code section 667.6(c)(21), but the court has not found

19

such a subsection.1 The applicability of section 667.6 at all appears dubious because it concerns sex

20

offenses whereas Smith’s conviction was for a burglary.

21

667.6(c)(21) exists, respondent should attach a copy of it to any new motion to dismiss. If the

22

subsection does not exist, respondent should explain in any new motion to dismiss how and when

23

the error will be fixed. Lastly, if the 2nd amended abstract cites to a subsection that was not

24

mentioned in the oral pronouncement of sentence in 2010, the parties should discuss whether that

25

2nd amended abstract can be considered the correction of a scrivener’s error that does not change

26

the underlying judgment and therefore does not constitute a new judgment under Gonzalez. The

If California Penal Code section

27
28

1

There is a California Penal Code section 667.5(c)(21), but that is not the section mentioned in the
2nd amended abstract.
2

Case 3:20-cv-00322-SI Document 18 Filed 11/17/20 Page 3 of 3

1

parties are encouraged to cite any relevant case authority on this point.

2

For the foregoing reasons, respondent’s motion to dismiss is DENIED. Docket No. 8.

3

Respondent has not demonstrated that the 2nd amended abstract is not a new judgment for purposes

4

of determining the timeliness of the federal petition for writ of habeas corpus. The denial of the

5

motion to dismiss is without prejudice to respondent filing a new motion to dismiss if he is able to

6

demonstrate that the 2nd amended abstract should not be viewed as a new judgment for purposes of

7

the statute of limitations.
The court now sets the following new briefing schedule: Respondent must file and serve a

9

motion to dismiss the petition or an answer to the petition on or before January 15, 2021. Petitioner

10

must file and serve his opposition to a motion to dismiss or his traverse on or before February 19,

11

United States District Court
Northern District of California

8

2021. Respondent may file and serve a reply in support of any motion to dismiss on or before

12

March 5, 2021.

13
14
15
16

IT IS SO ORDERED.
Dated: November 17, 2020
______________________________________
SUSAN ILLSTON
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
3