Gayler v. Neven et al

Filing 52

ORDER denying 51 Motion/Application for Leave to Proceed in forma pauperis; denying 12 Motion to Dismiss; Respondents' answer to grounds that remain are due 60 days of entry of this Order. Petitioner shall have sixty (60) days from service of the answer within which to file a reply to the answer. Signed by Judge Andrew P. Gordon on 9/20/2017. (Copies have been distributed pursuant to the NEF, cc: Attachment pursuant to Order - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRANDYN WILLIAM GAYLER,

Case No. 2:15-cv-00972-APG-CWH

Petitioner,
vs.

ORDER

NEVEN, et al.,

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Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on, inter alia, respondents’

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motion (ECF No. 12) to dismiss. Respondents seek dismissal on a number of grounds, including

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untimeliness under 28 U.S.C. § 2244(d).

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Background
Petitioner Brandyn Gayler seeks to set aside his Nevada state conviction, pursuant to a guilty
plea, of attempt sexual assault.

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On August 4, 2011, petitioner was sentenced to, inter alia, 72 to 240 months but the sentence

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was suspended for a fixed term of probation of five years. Pursuant to the prior plea agreement, if

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petitioner successfully completed and received an honorable discharge from probation, he would be able

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to withdraw his plea to the sexual offense and enter a plea of guilty to the nonsexual offense of coercion

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with credit for time served. (ECF Nos. 13-18 & 13-20; Exhibits 18 & 20.)

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An original judgment of conviction was not filed following the August 4, 2011, sentencing.
(E.g., ECF No. 16-24, at n.2; Exhibit 119.)

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The State subsequently sought revocation of petitioner’s probation. Following a hearing, the

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state district court issued an order styled as an order for revocation of probation and amended judgment

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of conviction, which was filed on September 26, 2012. (ECF Nos. 13-27 & 13-28; Exhibits 27 & 28.)

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On October 18, 2012, petitioner, through counsel, filed a motion to reconsider revocation of

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probation. (ECF No. 13-30; Exhibit 30.) The motion was filed after the expiration of the time for filing

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of a post-judgment motion that would toll the time for filing an appeal from the September 26, 2012,

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judgment.1

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On January 10, 2013, a judgment styled as a second amended judgment of conviction was filed.

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The judgment reflected, inter alia, the original suspension of sentence and grant of probation, specific

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conditions of probation, and special sentence of lifetime supervision imposed at the sentencing. (ECF

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No. 14-3; Exhibit 34.)2

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On January 24, 2013, the state district court held a hearing on the motion to reconsider

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revocation of probation and stated that the court would deny the motion. On February 7, 2013, the

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court issued a written order denying the motion. On February 12, 2013, petitioner, through counsel,

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filed a notice of appeal from the “District Court’s decision rendered in this action, the 24 th day of

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January, 2013.” (ECF Nos. 14-4, 14-5 & 14-6; Exhibits 35, 36 & 37.)

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The state supreme court dismissed the appeal on April 09, 2013, on the basis that the court had

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no jurisdiction over the appeal because no statute or court rule authorized an appeal from an order

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denying reconsideration. (ECF No. 14-16; Exhibit 47.)

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On September 16, 2013, petitioner filed a state post-conviction petition. Proceedings were

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pending on the petition continuously through the January 16, 2015, issuance of the remittitur following

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the state supreme court’s affirmance of the denial of relief. The state district court held that the petition

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was untimely. The state supreme court held that the petition was timely, however, because it was filed

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within one year of the filing of the first judgment of conviction filed in the case, the September 26,

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2012, amended judgment of conviction. The state supreme court affirmed the denial of relief instead

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on the merits. (ECF Nos. 15-3, 15-23, 15-28, 16-25, 17-5 & 17-6; Exhibits 65, 85, 90, 119, 130 & 131.)

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Under Rule 4(a)(4) of the Nevada Rules of Appellate Procedure (NRAP), the timely filing of a motion listed
therein will toll the time period for filing an appeal. The time period for filing all of the tolling motions listed in NRAP
4(a)(4) is ten days after service of written notice of entry of judgment. The Court expresses no opinion as to whether
petitioner’s motion to reconsider revocation of probation qualified as a tolling motion under NRAP 4(a)(4). The salient
point is that the motion was not filed within the time period for any of the tolling motions listed in NRAP 4(a)(4) and
therefore could not toll the appeal time regardless.
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See also ECF No. 13-13 (Exhibit 13), at 5-10 (minutes from the August 4, 2011, sentencing, as corrected on
November 3, 2011). All page citations herein are to the CM/ECF generated electronic document page number in the
page header, not to any page number in the original transcript or document, unless noted otherwise.

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During the pendency of the above petition, petitioner filed a motion to correct illegal sentence

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and a motion to modify sentence. Proceedings on both motions were pending through the February 23,

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2015, issuance of the remittitur following the state supreme court’s affirmance of the denial of relief

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on the two motions. (ECF Nos. 15-21, 15-24, 16-10, 16-30, & 17-12; Exhibits 83, 86, 104, 124 & 137.)

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There thus was a timely state post-conviction petition and/or other collateral review proceeding

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pending continuously from September 16, 2013, through February 23, 2015.

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Given the disposition reached herein on the timeliness issue, the Court has no occasion to

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consider whether any other proceedings that were pending after February 23, 2015, constituted a

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properly filed state post-conviction or other collateral review proceeding.

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The constructive filing date for the present federal proceeding is April 19, 2015. 3

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Discussion
Timeliness

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The Ninth Circuit’s recent decision in Smith v. Williams, 2017 WL 3927193, No. 15-16967 (9th

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Cir., Sept. 8, 2017), is dispositive of the timeliness issue in this case. Smith holds that the federal

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limitation period under 28 U.S.C. § 2244(d)(1)(A) runs from the most recent amended judgment of

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conviction in the state district court. Accordingly, the federal limitation period did not begin to run as

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to the current federal petition until after the time period for taking a direct appeal expired following the

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January 10, 2013, judgment styled as a second amended judgment of conviction. That thirty-day period

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expired on Monday, February 11, 2013. After 216 days had elapsed, 4 petitioner filed a timely state post-

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conviction petition on September 16, 2013. The federal limitation period thereafter was statutorily

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The April 19, 2015, date relied upon by respondents appears to be the date that petitioner mailed the petition
for filing in No. 2:15-cv-00740-JAD-PAL. That action was dismissed without prejudice because the pauper application
was deficient, and this action was filed promptly thereafter. No express finding was made in the prior action that a
dismissal without prejudice would not adversely impact an analysis of the federal limitation period in a promptly filed
new action. Given that the federal limitation period potentially – under one view of the law possible at that time –
expired only approximately two weeks prior to petitioner’s filing in the prior action, the April 19, 2015, mailing date in
that action equitably should serve as the constructive filing date for this promptly-filed second action. Cf. Smith v.
Ratelle, 323 F.3d 813, 818 (2003) (equitable tolling warranted where district court summarily dismissed prior timely
mixed petition without affording the petitioner an opportunity to, inter alia, dismiss the unexhausted claims as an
alternative to full dismissal). Respondents do not argue otherwise, and this action in any event is timely regardless.
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Contrary to respondents’ general manner of calculation, neither the day that the appeal period expired nor the
first day on which a later statutory tolling event started count against the federal limitation period.

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tolled under 28 U.S.C. § 2244(d)(2) at the very least through February 23, 2015. Only 54 days elapsed

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between that latter date and the constructive filing of the federal petition on or about April 19, 2015.

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The maximum 270 days elapsed (i.e., assuming arguendo no statutory tolling after February 23, 2015,

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and with arguendo no further equitable tolling or delayed accrual) constitutes less than a year. The

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petition is timely.5

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This matter accordingly shall proceed forward as to the claims that remain before the Court

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following upon this order. Even if rehearing and/or certiorari review is sought as to the holding in

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Smith, the Court is not inclined to delay disposition of the present motion and this action based solely

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on the pendency of a petition for such relief. The Court intends to move this matter forward with as

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much dispatch as its docket and resources allow. In the event that the Smith panel opinion were to be

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vacated pendente lite by a grant of rehearing en banc or the Supreme Court were to grant a certiorari

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petition, respondents may seek at that time a stay of this matter with an administrative closure through

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the final resolution of the issue. Otherwise, however, Smith is binding precedent; and the Court intends

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to move forward in this matter based on that controlling precedent. The Court is endeavouring to

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resolve all aspects of this litigation if possible prior to this action’s three-year anniversary, which will

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be here in relatively short order given the ordinary pace of litigation.

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Remaining Issues on the Motion to Dismiss

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Petitioner’s voluntary abandonment of Grounds 1 through 8 moots most of the remaining issues

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on the motion to dismiss.6 In the issues that remain, respondents contend that: (a) Ground 9 is

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conclusory; (b) Ground 10(d) is not cognizable; and (c) an alleged Ground 11 is unexhausted.

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The Court is not persuaded that Ground 9 is subject to dismissal, with leave to amend, as

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conclusory. In Ground 9, petitioner alleges that the state district court violated his Eighth Amendment

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right (apparently to be free from cruel and unusual punishment) when it sentenced him to a punishment

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that was gross, excessive and disproportionate to the crime. He alleges in particular that the state

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The Court is cognizant of respondents’ argument relying upon Nevada law that instead commences the state
limitation period solely from the original judgment. See ECF No. 12, at 6-7. The issue is a federal law issue, however.
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See ECF No. 47, at 2 & 9.

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district court engaged in vindictive sentencing when it sentenced him to a longer underlying sentence

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when it initially ordered probation than it would have if it instead had sentenced him directly to an

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immediate prison sentence, in order to give him an incentive to not violate the conditions of his

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probation. Petitioner has stated the specifics of his claim adequately enough to proceed further without

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the need for amendment.

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The Court is not persuaded that Ground 10(d) is not cognizable in federal habeas corpus on the

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basis that it alleges only state law violations. In Ground 10(d) (as subdivided by respondents), petitioner

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alleges that he was denied due process of law in violation of the Fourteenth Amendment because his

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parole revocation was not based upon verified facts, the revocation hearing was not heard by a neutral

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and detached magistrate, he did not have an opportunity to confront his accuser, and multiple hearsay

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testimony was considered during the hearing. Respondents contend that petitioner is not entitled to

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relief under the Due Process Clause based on these allegations and that he therefore presents only state

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law claims. Respondents confuse the issue of whether a ground states a federal or state law claim with

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the issue of whether a claim is meritorious. Petitioner seeks relief under the Fourteenth Amendment’s

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Due Process Clause. If he is not entitled to relief under the Fourteenth Amendment on the allegations

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and record presented, that matter will be addressed on the merits.

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Respondents challenge the exhaustion of an alleged Ground 11. Respondents maintain that in

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alleged Ground 11 petitioner alleges that his right to due process was violated because he did not

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receive fair warning of what conduct might result in revocation prior to his probation being revoked.

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Petitioner responds that “[t]his ground does not exist.” (ECF No. 18, at 6.) If petitioner does not regard

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such a claim as being presented by his voluminous and multifaceted pleadings, far be it for the Court

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to insist that such a claim is presented and adjudicate defenses as to such a claim. There accordingly

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is no claim before the Court alleging that petitioner’s right to due process was violated because he did

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not receive fair warning of what conduct might result in revocation prior to his probation being revoked.

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Second Pauper Application
The Court stated as follows with regard to petitioner’s prior pauper application:
Petitioner has paid the filing fee, and the Court is denying
petitioner’s third motion for appointment of counsel on grounds that do
not turn on financial eligibility. The pauper application (ECF No. 35)
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therefore is unnecessary at this time. The application further is
incomplete because petitioner did not attach all financial attachments
required for a properly completed application. Under 28 U.S.C. §
1915(a)(2) and Local Rule LSR 1-2, petitioner must attach both a
properly executed financial certificate and an inmate account statement
for the past six months. Petitioner did not attach an inmate account
statement for the past six months.
The Court accordingly will deny the pauper application without
prejudice. Following upon the denial of petitioner’s third motion for
appointment of counsel on other grounds, another pauper application
would be premature at this time. While it is possible that a need for
pauper status may arise later in the case, the Court would prefer to
address such an application at that later time, based upon then-current
financial attachments, rather than at this stage in the case.
ECF No. 47, at 8.

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Petitioner nonetheless filed another pauper application only two months later. The second

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pauper application is premature for the reasons previously stated and will be denied. Petitioner once

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again is cautioned that his continued filing of serial unnecessary and repetitive filings may result in,

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inter alia, restrictions being placed on his ability to file papers without prior approval first obtained.

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See ECF No. 47, at 8-9.

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IT THEREFORE IS ORDERED that respondents’ motion (ECF No. 12) to dismiss is

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DENIED, with the understanding that Grounds 1 through 8 have been abandoned and dismissed since

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the filing of the motion and that there is no Ground 11 regarded as being before the Court.

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IT FURTHER IS ORDERED that respondents shall file an answer to the grounds that remain
within sixty (60) days of entry of this order.
IT FURTHER IS ORDERED that petitioner shall have sixty (60) days from service of the
answer within which to file a reply to the answer.
IT FURTHER IS ORDERED that petitioner’s second application (ECF No. 51) to proceed
in forma pauperis is DENIED without prejudice.

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IT FURTHER IS ORDERED that the Clerk of Court shall attach a copy of ECF No. 62 from

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Taniko Smith v. Brian E. Williams, Sr., No. 2:12-cv-00952-APG-VCF, as an either exhibit or

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attachment with this order, or otherwise in a manner consistent with the Clerk’s current practice as to

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such matters, so that petitioner will have a copy of that recently issued Ninth Circuit opinion via service

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of this order. Respondents shall not treat petitioner’s possession of this slip copy of the to-be-published
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opinion in Smith as impermissible possession of another inmate’s legal files under prison regulations

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as opposed to permissible possession of general research materials.

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DATED: September 20, 2017.

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_______________________________
ANDREW P. GORDON
United States District Judge

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TANIKO C. SMITH,
Petitioner-Appellant,
v.

No. 15-16967
D.C. No.
2:12-cv-00952APG-VCF

BRIAN E. WILLIAMS, SR.; ATTORNEY
GENERAL OF THE STATE OF NEVADA,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted June 8, 2017
Pasadena, California
Filed September 8, 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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SMITH V. WILLIAMS
SUMMARY**

Habeas Corpus
The panel reversed the district court’s judgment
dismissing as untimely Taniko Smith’s federal habeas corpus
petition, and remanded for further proceedings, in a case in
which the state trial court entered a Second Amended
Judgment reinstating Smith’s murder and attempted murder
convictions after the Nevada Supreme Court reversed the
state trial court’s amended judgment overturning and vacating
the convictions.
The panel held that Smith’s federal petition challenging
his conviction and sentence under the Second Amended
Judgment was timely filed. The panel explained that “the
judgment” in 28 U.S.C. § 2244(d)(1) can only refer to the
state judgment pursuant to which the petitioner is being held,
and that the statute of limitations must therefore run from the
judgment pursuant to which the petitioner is being held. The
panel observed that the Supreme Court reached the same
conclusion when determining in Magwood v. Patterson, 561
U.S. 320 (2010), how to decide whether a petition
challenging a prisoner’s state conviction is second or
successive. The panel wrote that it is of no moment that the
Second Amended judgment reinstated counts on which Smith
had originally been convicted rather than adding new counts
of conviction.

**

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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SMITH V. WILLIAMS

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COUNSEL
Jonathan M. Kirshbaum (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Petitioner-Appellant.
Dennis C. Wilson (argued), Senior Deputy Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Las Vegas, Nevada; for Respondents-Appellees.

OPINION
REINHARDT, Circuit Judge:
BACKGROUND
Taniko Smith was convicted of first degree murder,
attempted murder, two counts of robbery, and attempted
robbery in a Nevada superior court on March 28, 1997.
Following the conclusion of direct appeal, he filed a series of
state and federal habeas petitions between 1999 and 2006, all
of which were denied.1 On January 31, 2007, Smith filed his
third state habeas petition, arguing that under the Nevada
Supreme Court’s intervening decision in Sharma v. State,
56 P.3d 868 (Nev. 2002), the jury had not been properly
instructed on the specific intent required to convict him of
murder or attempted murder based on an aiding and abetting
theory. The state trial court agreed, overturning and vacating
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Smith’s first federal petition was denied without prejudice for failure
to exhaust available state remedies. His two state petitions and his second
and third federal petitions were all denied for being untimely.

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SMITH V. WILLIAMS

Smith’s convictions and sentences for first degree murder and
attempted murder. It entered an amended judgment of
conviction on August 21, 2007.
The Nevada Supreme Court reversed the state trial court
in 2009, concluding that Smith’s petition was untimely and
that Smith had not shown good cause to excuse the
procedural defect. It remanded the case to the trial court with
instructions to reinstate Smith’s murder and attempted murder
convictions and sentences by entering a Second Amended
Judgment of Conviction. On March 14, 2012, the state trial
court entered the Second Amended Judgment, which
reinstated the murder and attempted murder convictions and
sentences.
On May 22, 2012, Smith filed pro se a federal habeas
petition challenging his conviction and sentence under the
Second Amended Judgment. The district court dismissed the
petition as untimely, reasoning that the statute of limitations
ran from the time of Smith’s initial conviction in 1997
because the amended judgment created no new issues for
petitioner to appeal. In part, the district court relied on
United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000),
which held that an amended federal judgment of conviction
doesn’t become final for purposes of 28 U.S.C. § 2255(f)
until the time for appealing the amended judgment has passed
but limited its holding to cases in which the trial court “either
partially or wholly reverse[s] a defendant’s conviction or
sentence, or both, and expressly remand[s] to the district
court,” stating that it need not reach a conclusion for cases
that did not present the same procedural history. Colvin,
204 F.3d at 1225. The district court assumed that Colvin’s
limited holding would apply to an amended state court
judgment of conviction, which is controlled by 28 U.S.C.

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SMITH V. WILLIAMS

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§ 2241(d)(1)(A), and determined that the statute of limitations
had never restarted because Smith’s case was never reversed
and expressly remanded to the state trial court. This
assumption is incorrect for the reasons we will explain in this
opinion.
STANDARD OF REVIEW
We review de novo a district court’s dismissal of a habeas
petition as untimely under AEDPA. Stancle v. Clay, 692 F.3d
948, 952–53 (9th Cir. 2012).
DISCUSSION
Under AEDPA, prisoners “in custody pursuant to the
judgment of a State court” have a one-year statutory period to
file a federal application for writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). This period generally runs, as it does in this
case, from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” Id. § 2244(d)(1)(A).
I.
Statutory interpretation “begins with the plain language
of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118
(2009).
Habeas relief for prisoners convicted under state law is
governed by 28 U.S.C. § 2254, but the procedural rules
governing § 2254 petitions are contained in 28 U.S.C. § 2244.
The text of § 2244 establishes that the one-year statute-oflimitations period for state prisoners runs from the date on
which the judgment pursuant to which the prisoner is being

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held became final. The statute, by its terms, applies to “a
person in custody pursuant to the judgment of a State court”
and states that the statute of limitations runs from “the date on
which the judgment” became final. Id. § 2244(d)(1)
(emphasis added).2 “The judgment” can only refer to the
state judgment pursuant to which the petitioner is being held
because that is the only judgment identified in the statute-oflimitations provision. Thus, the statute of limitations must

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The statute reads:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.

Id. (emphasis added).

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run from the judgment pursuant to which the petitioner is
being held.
The Supreme Court reached this same conclusion when
determining how to decide whether a petition challenging a
prisoner’s state conviction is second or successive under
AEDPA in Magwood v. Patterson, 561 U.S. 320, 332–33
(2010). There, the Court held that when a defendant is
resentenced, he has received a new judgment that renders a
new, numerically second petition “not ‘second or
successive’” because it is the first petition challenging the
new judgment. Id. at 341–42. The Court concluded that the
only relevant judgment for a habeas application is the one
pursuant to which a prisoner may be incarcerated: “A § 2254
petitioner . . . ‘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)); see
also id. (“The reference to a state-court judgment in
§ 2254(b) is significant because the term ‘application’ cannot
be defined in a vacuum.”). Thus, whenever there is a new
judgment by the state court, the procedural limitation on
second or successive habeas petitions under AEDPA applies
anew. As the Supreme Court held in Magwood, “[W]here . . .
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 compels the conclusion that the judgment from
which the AEDPA statute of limitations runs is the one
pursuant to which the petitioner is incarcerated. Magwood’s
analysis relied on the language of 28 U.S.C. § 2254(b)(1), in
which Congress explicitly refers to “[a]n application for a
writ of habeas corpus on behalf of a person in custody

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pursuant to the judgment of a State court.” See 561 U.S. at
333 (“The requirement of custody pursuant to a state-court
judgment distinguishes § 2254 from other provisions
authorizing relief from constitutional violations . . . .”). The
section of AEDPA establishing the statute of limitations for
prisoners convicted of a violation of state law uses identical
statutory language to indicate that the relevant judgment is
the one pursuant to which the petitioner is incarcerated. See
28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court.”).
It is well-established that “[a] term appearing in several
places in a statutory text is generally read the same way each
time it appears.” Ratzlaf v. United States, 510 U.S. 135, 143
(1994).
The state’s argument that the statute of limitations runs
from the original judgment rather than the new judgment is
not only contrary to the language of § 2244(d)(1), but would
also make cases interpreting AEDPA’s “second or
successive” bar irrelevant. That is because it is realistically
most unlikely that a habeas petitioner would be able to file
and litigate a first federal petition, have the judgment or
sentence amended in state court, and file a new federal
petition regarding the amended judgment all within one year
of the original conviction. See, e.g., Wentzell v. Neven,
674 F.3d 1124 (9th Cir. 2012) (new, intervening judgment
allowed petitioner to file a new federal petition twelve years
after conviction became final). Moreover, it is foreclosed by
common sense and an elementary understanding of the law
we state above. If the Second Amended Judgment is the
judgment pursuant to which the petitioner is being held, and
the petitioner is entitled to file a federal habeas petition
challenging that judgment, then it follows as the night the day

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that the federal habeas petition must be filed within one year
from the entry of that judgment.
II.
Accordingly, it is clear that Smith’s federal petition was
timely filed. After March 14, 2012, Smith was in custody
pursuant to the Second Amended Judgment entered by the
state trial court. The Nevada trial court appears to have
clearly understood that such was the judgment that controlled
his incarceration, as it titled its order a “Second Amended
Judgment.”3
It is of no moment that the Second Amended Judgment
reinstated counts on which Smith had originally been
convicted rather than adding new counts of conviction. In
Wentzell, the court considered an amended judgment that had
dismissed one of the counts of the judgment of conviction
while leaving the other two counts untouched. 674 F.3d at
1125. Like the Second Amended Judgment here, the
amended judgment in Wentzell did not add anything to the
judgment that would give rise to a new claim by the
petitioner. See id. at 1127. Nevertheless, we held that a new
intervening judgment occurred because “a new, amended
judgment was entered by the state trial court.” Id. So too
here: the state trial court entered an amended judgment. This
3

What this order actually reinstated were convictions on two counts
of the indictment and their respective sentences. Thus, the Nevada
Supreme Court issued a new judgment that reinstated two claims. See
Magwood, 561 U.S. at 334–35 (rejecting the state’s invitation to treat a
judgment as divisible); Wentzell, 674 F.3d at 1127 (“[W]e must interpret
successive applications with respect to the judgment challenged and not
with respect to particular components of that judgment.” (quoting Johnson
v. United States, 623 F.3d 41, 46 (2d Cir. 2010))).

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SMITH V. WILLIAMS

was a new judgment, starting a new one-year statute of
limitations.
III.
United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000),
relied on primarily by the state, is irrelevant to this case for
two reasons. First, its holding has no application to habeas
petitions brought by state prisoners. Colvin concerned
28 U.S.C. § 2255(f)—the portion of AEDPA concerning the
statute of limitations for federal prisoners—and was about
determining Congress’s intent regarding an ambiguous
portion of the statute: “when the ‘judgment of conviction
becomes final’ for purposes of the statute of limitations under
28 U.S.C. § 2255.” 204 F.3d at 1222.
Second, the opinion in Colvin in no way stands for the
proposition it is cited for by the state that only cases that are
reversed in part and expressly remanded begin a new statuteof-limitations period. To the contrary it expressly leaves that
question open.4
4

We explained:
Our conclusion today does not affect those cases in
which we affirm the judgment of conviction and
sentence in its entirety and do not expressly remand to
the district court. We express no opinion as to when the
statute of limitations begins to run in those cases, and
we leave for another day our decision on the issue
presented by Gendron, Kapral, and Burch. Our holding
is limited only to those cases in which we either
partially or wholly reverse a defendant’s conviction or
sentence, or both, and expressly remand to the district
court. In those cases, the judgment does not become
final, and the statute of limitations does not begin to

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IV.
Because we conclude that the Second Amended Judgment
started a new one-year statute of limitations, Smith’s petition
in May 2012 was timely. We therefore have no occasion to
decide whether Smith could overcome the time bar by
proving actual innocence. There is no procedural hurdle to
Smith’s making his Sharma claim on the merits. If the
district court rejects that claim on the merits, Smith will then
have the opportunity to appeal that decision.
CONCLUSION
The district court’s dismissal of the petition for habeas
corpus as untimely is REVERSED, and the case is
REMANDED to the district court for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.

run, until the district court has entered an amended
judgment and the time for appealing that judgment has
passed.
Id. at 1225 (emphasis added).