                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 CURTIS LAVELL CLAYTON, AKA                        No. 15-71566
 Curtis Moore,
                       Petitioner,                   D.C. No.
                                                  2:14-cv-06001-
                     v.                             JFW-FFM

 MARTIN BITER, Warden,                               OPINION
                              Respondent.


           Application to File Second or Successive
              Petition Under 28 U.S.C. § 2254

          Argued and Submitted December 8, 2016
                   Pasadena, California

                      Filed August 21, 2017

  Before: Stephen Reinhardt and Richard A. Paez, Circuit
      Judges, and Paul L. Friedman,* District Judge.

                     Opinion by Judge Paez




    *
      The Honorable Paul L. Friedman, United States District Judge for
the District of Columbia, sitting by designation.
2                        CLAYTON V. BITER

                            SUMMARY**


                           Habeas Corpus

   The panel denied as unnecessary California state prisoner
Curtis Clayton’s application for permission to file a second or
successive habeas corpus petition challenging the state
court’s denial of his petition for resentencing under section
1170.126 of the California Penal Code, and transferred the
matter to the district court with instructions to treat Clayton’s
habeas petition as a first petition.

    The panel explained that under California law, a
resentencing petition under section 1170.126 does not
challenge the underlying conviction or sentence; rather it
seeks to obtain the benefits of Proposition 36, which entitles
defendants with a non-serious and non-violent third strike to
petition for resentencing, and results in the entry of a new or
appealable order of judgment. The panel held that Clayton,
accordingly, is not subject to the “second or successive”
petition bar imposed by 28 U.S.C. § 2244(b)(2), and may
seek habeas relief from the denial of his resentencing
position.

    The panel also held that cognizability of a claim in the
habeas petition plays no role in the court of appeals’
adjudication of an application for permission to file a second
or successive petition, and that it is the province of the district
court to consider cognizability of a habeas petition.


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     CLAYTON V. BITER                       3

                        COUNSEL

Jan B. Norman (argued), Tujunga, California, for Petitioner.

Michael C. Keller (argued) and Jonathan J. Kline, Deputy
Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Office of the Attorney General, Los Angeles,
California; for Respondent.


                         OPINION

PAEZ, Circuit Judge:

    After the district court dismissed Petitioner Curtis
Clayton’s petition for a writ of habeas corpus as second or
successive, he applied to this court for permission to file a
second or successive petition. 28 U.S.C. § 2244(b).
Clayton’s habeas petition challenges the state court’s denial
of his petition for resentencing under section 1170.126 of the
California Penal Code. He argues that the state court’s
adverse ruling deprived him of a federally protected liberty
interest without affording him procedural due process
protections.

    We review Clayton’s application pursuant to 28 U.S.C.
§ 2244(b)(3), and we deny the application as unnecessary and
transfer the matter to the district court with instructions to
treat Clayton’s habeas petition as a first petition.
4                     CLAYTON V. BITER

                                I.

     In January 1997, Clayton was convicted of three felonies:
carjacking, second degree robbery, and evading a police
officer. See Cal. Penal Code §§ 211, 215(a); Cal. Veh. Code
§ 2800.2. The superior court imposed a sentence under
California’s Three Strikes Law, section 667 of the California
Penal Code, which mandated a sentence of 25 years to life for
anyone convicted of any felony if that person had previously
been convicted of two or more “serious or violent” felonies.
Cal. Penal Code §§ 667.5, 1170.12. The California Court of
Appeal affirmed his convictions but remanded his sentence to
correct an error in imposing mandatory consecutive
sentences. After Clayton was resentenced, he unsuccessfully
appealed his new sentence. Clayton then sought habeas relief
in state court, but to no avail. In 2002, Clayton sought habeas
relief in federal court, but the district court denied his petition
in all respects. Clayton next sought review in this court, but
we denied his application for a certificate of appealability.
Clayton v. Runnels, No. 02-56684, Dkt. No. 7 (June 20,
2003).

    On November 6, 2012, California voters overwhelmingly
approved Proposition 36, also known as the Three Strikes
Reform Act of 2012, which seeks to remedy the harshness of
the Three Strikes Law both prospectively and retroactively.
Prop. 36, approved Nov. 6, 2012, eff. Nov. 7, 2012; see also
Steve Cooley & Lael R. Rubin, Proposition 36: A Brief
History, 25 FED. SENT’G REP. 263, 263 (2013). With some
minor exceptions, Proposition 36 requires that, for the Three
Strikes Law to apply, the third strike be a serious or violent
felony. Cooley & Rubin, supra, at 264. For defendants
sentenced under the prior Three Strikes Law, Proposition 36
includes a resentencing provision that entitles defendants with
                      CLAYTON V. BITER                         5

a non-serious and non-violent third strike to petition for
resentencing. Cal. Penal Code § 1170.126; Cooley & Rubin,
supra, at 264. Unless delayed for good cause, defendants
seeking resentencing were required to petition the court that
entered the judgment of conviction within two years of
Proposition 36’s passage. Cal. Penal Code § 1170.126(b).

    On November 19, 2012, Clayton promptly filed a petition
in the Los Angeles County Superior Court seeking
resentencing. Cal. Penal Code § 1170.126. Without
providing him a hearing, the superior court found Clayton
ineligible for resentencing and denied the petition. Clayton
appealed, but the court of appeal affirmed and the California
Supreme Court denied his petition for review.

    In 2014, Clayton filed a pro se habeas petition in the
district court challenging the procedures the state court used
in adjudicating his resentencing petition under the Three
Strikes Reform Act. Clayton argued that the resentencing
petition involved a liberty interest because his sentence could
be lowered dramatically, and that the state court deprived him
of that interest without affording him procedural due process
when it denied his petition without a hearing.

    The district court dismissed Clayton’s habeas petition for
lack of jurisdiction, concluding that it was a successive
petition and Clayton had not obtained authorization from this
court to file it, as required by § 2244(b)(3). The district court
determined that Clayton was “at bottom, challenging his
original sentence” for the second time. The court nonetheless
proceeded to review the petition under Rule 4 of the Rules
Governing § 2254 Cases, and concluded that Clayton’s
alleged due process claim was not cognizable on habeas
review.
6                    CLAYTON V. BITER

    Clayton then filed an application under § 2244(b)(3)
asking this court for authorization to file a second or
successive habeas petition in the district court. A motions
panel of this court ordered further briefing on the two central
questions in this application: (1) “whether petitioner’s claim,
that the state court denied his right to due process by denying
his motion to recall his sentence under California Penal Code
§ 1170.126, is subject to 28 U.S.C. § 2244(b)(2),” and
(2) “what effect, if any, the cognizability of the underlying
federal habeas claim has on the adjudication of an application
for authorization to file a second or successive petition.”

                              II.

   We review de novo a district court’s determination that a
habeas petition is second or successive. Wentzell v. Neven,
674 F.3d 1124, 1126 (9th Cir. 2012) (citing United States v.
Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009)).

                             III.

                              A.

    We first must decide whether Clayton’s current habeas
petition, which challenges the denial of his state court
resentencing petition on due process grounds, is a second or
successive petition that is barred under § 2244(b) absent
authorization from this court. We conclude that it is not a
second or successive petition, and that Clayton did not need
our authorization to file it.

   Habeas petitions that are filed second-in-time are not
necessarily second or
                     CLAYTON V. BITER                        7

successive. Panetti v. Quarterman, 551 U.S. 930, 943 (2007)
(“The phrase ‘second or successive’ is not self-defining.”);
see also Slack v. McDaniel, 529 U.S. 473, 486 (2000)
(describing the phrase “‘second or successive petition’” as a
“term of art”). Indeed, Magwood v. Patterson, 561 U.S. 320
(2010), made clear that second-in-time habeas petitions
challenging new or intervening judgments are not second or
successive.

    In Magwood, the Supreme Court held that “both
§ 2254(b)’s text and the relief it provides indicate that the
phrase ‘second or successive’ must be interpreted with
respect to the judgment challenged.” 561 U.S. at 332–33.
The petitioner in Magwood had successfully obtained
resentencing in a first habeas proceeding. Id. at 326. After
Magwood was re-sentenced and after exhausting his state
court remedies, he filed a new federal habeas petition under
§ 2254 challenging certain aspects of his new sentence. Id.
at 327–28. The Court held that Magwood’s second-in-time
petition challenged a new or intervening judgment and was
therefore not a second or successive petition. Id. at 341–42.

    Shortly after Magwood, we clarified in Wentzell that a
habeas petition that challenges a new or intervening judgment
is not a second or successive petition even where the
intervening judgment left in place an earlier challenged
conviction and sentence. 674 F.3d 1124. We held that “a
subsequent petition is not successive, even if . . . the
petitioner effectively challenges an unamended component of
the judgment.” Id. at 1127 (citation and internal quotation
marks omitted). Accordingly, that the denial of Clayton’s
resentencing petition left in place his original sentence is of
no matter to the availability of habeas review.
8                        CLAYTON V. BITER

    Our decision is also guided by Hill v. Alaska, 297 F.3d
895 (9th Cir. 2002), in which the petitioner sought second-in-
time habeas review in a situation much like Clayton’s.1 We
held that a challenge to the calculation of a prisoner’s release
date on the basis of parole eligibility was not “second or
successive.” Id. at 899. Critical to our holding was the
nature of Hill’s claim, which challenged the “calculation of
his release date rather than the [original] sentence itself.” Id.
We explained that “[i]t also bears noting that the Supreme
Court has declined to read § 2244 to preclude prisoners from
bringing habeas claims that could not have been brought in
earlier petitions.” Id. at 898 (citing Slack, 529 U.S. at 487).

    We look to state law to determine what constitutes a new
or intervening judgment. See, e.g., Hill, 297 F.3d at 897–901
(analyzing state law to determine whether a challenge to
parole eligibility was separate from the sentence for purposes
of the second or successive petition analysis). In California,
appeals may be taken only from the original conviction or
from a post-judgment order “affecting the substantial rights
of the party.” Cal. Penal Code § 1237. The California
Supreme Court has concluded that a denial of a resentencing
petition under section 1170.126 is an appealable
“postjudgment order affecting the substantial rights of the
party,” as opposed to an appeal of an original conviction.
Teal v. Superior Court, 336 P.3d 686, 689–90 (Cal. 2014).
Thus, under California law, a resentencing petition does not
challenge the underlying conviction or sentence; rather, it


    1
     The state argues that Hill is of questionable authority because it was
decided before Magwood. This argument is unavailing as we have
subsequently reaffirmed Hill’s holding. See, e.g., Goodrum v. Busby,
824 F.3d 1188, 1193 (9th Cir. 2016); United States v. Buenrostro,
638 F.3d 720, 725 (9th Cir. 2011).
                     CLAYTON V. BITER                        9

seeks to obtain the benefits of Proposition 36 and results in
the entry of a new appealable order or judgment. The denial
of Clayton’s section 1170.126 petition therefore constitutes
a new judgment.

    Our recent decision in Sherrod v. United States, 858 F.3d
1240 (9th Cir. 2017) that a sentence reduction under
18 U.S.C. § 3582(c)(2) is not a new, intervening judgment for
the purposes of second or successive analysis, does not
dictate a different result. Section 3582(c)(2) provides that
“[i]n the case of a defendant who has been sentenced . . .
based on a sentencing range that has subsequently been
lowered . . . , the court may reduce the term of
imprisonment.” 18 U.S.C. § 3582(c)(2). In holding that a
§ 3582(c)(2) sentence reduction is not a new, intervening
judgment, we pointed to the Supreme Court’s description of
§ 3582(c)(2) as “narrow [in] scope[,] . . . intended to
authorize only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.”
Sherrod, 858 F.3d at 1242 (quoting Dillon v. United States,
560 U.S. 817, 826 (2010)) (emphasis added). Sherrod relates
to a federal statute governing sentencing modifications,
18 U.S.C. § 3582(c)(2), and the federal Sentencing
Guidelines, and thus has no applicability to a state sentencing
system, especially one in which state law treats alteration of
the sentence under the law as a resentencing.

    Section 1170.126(b) resentencing petitions under state
law are meaningfully different from federal § 3582(c)(2)
sentencing reductions. Section 1170.126(b) provides for a
“recall of sentence” and “resentencing.” Cal. Penal Code
§ 1170.126(b). State law makes clear that a resentencing
petition results in a new order, distinct from the original
conviction. Teal, 336 P.3d at 689–90; see also People v.
10                   CLAYTON V. BITER

Conley, 373 P.3d 435, 441 (Cal. 2016) (emphasis added)
(making clear that Proposition 36 resentencings “do more
than merely reduce previously prescribed criminal
penalties”). In contrast, Congress made it very clear that
“[n]otwithstanding the fact that a sentence to imprisonment
can subsequently be . . . modified pursuant to the provisions
of [§ 3582(c)]; a judgment of conviction that includes such a
sentence constitutes a final judgment for all other purposes.”
18 U.S.C. § 3582(c)(2) (emphasis added); see also Dillon,
560 U.S. at 825 (recognizing that § 3582(c) merely
“‘reduce[s]’ an otherwise final sentence”). Just as Congress
has authority to declare that a court’s order granting or
denying a Guidelines sentence modification does not create
a new judgment, California may declare that a denial or
resentencing under section 1170.126(b) does create a new
judgment under California law. See supra; see also Hill,
297 F.3d at 897–901.

    In sum, as in Magwood, Clayton’s current habeas petition
does not “attempt[] to challenge his underlying conviction.”
561 U.S. at 342. Rather, he seeks only to challenge a new
and intervening judgment denying him relief with respect to
his sentence. Accordingly, Clayton is not subject to the
“second or successive” petition bar imposed by § 2244(b)(2),
and he may seek habeas relief from the denial of his
resentencing petition.

                              B.

    The government also argues that alternatively, we should
deny Clayton’s application for permission to file a second or
successive petition because his claim is not cognizable. We
reject this argument, and conclude that cognizability plays no
role in our adjudication of such an application, and that it is
                     CLAYTON V. BITER                        11

the province of the district court to consider cognizability of
a habeas petition.

    District courts adjudicating habeas petitions under § 2254
are instructed to summarily dismiss claims that are clearly not
cognizable. Rule 4 of the Rules Governing § 2254 Cases in
the United States District Court provides that district courts
“must dismiss” a petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” See, e.g., Nelson v.
Biter, 33 F. Supp. 3d 1173, 1176–78 (C.D. Cal. 2014)
(dismissing a habeas petition deemed not cognizable).

    Dismissal on the basis of cognizability is appropriate
“only where the allegations in the petition are ‘vague [or]
conclusory’ or ‘palpably incredible,’ or ‘patently frivolous or
false.’” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75–76
(1977)) (internal citations omitted). A petition may not be
cognizable, for example, where the petitioner fails to allege
a federal claim. Park v. California, 202 F.3d 1146, 1149–50
(9th Cir. 2000); see also Poland v. Stewart, 169 F.3d 573, 584
(9th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67–68
(1991)) (holding that federal habeas courts cannot review
state court applications of state procedural rules).

    Rule 4, however, applies only to district courts. See Rules
Governing § 2254 Cases in the United States District Court,
Rule 4 (instructing the district court); see also Cmt. to Rule
4 of the Rules Governing § 2254 Cases in the United States
District Court (explaining that the rule was “designed” to
provide “flexibility” to the district court judge). In reviewing
an application for a second or successive habeas petition, we
do not assess the cognizability of that petition.
12                        CLAYTON V. BITER

    Our directions for analyzing such applications derive
from § 2244(b)(2)–(3), which directs us to determine whether
the petitioner made a prima facie showing that the claim was
not presented in a prior application, or if it was, whether the
petition “relies on a new rule of constitutional law” or its
factual predicate “could not have been discovered previously
through the exercise of due diligence.” Our task under
§ 2244(b)(2)–(3) is therefore narrow in scope. Thus upon
transfer, the district court should assess whether Clayton’s
petition is cognizable.2

                                    IV.

    For the foregoing reasons, we deny the application as
unnecessary and transfer the petition to the district court with
instructions to consider it as a first habeas petition. 28 U.S.C.




     2
       In briefly passing on the nature of Clayton’s due process claim, the
district court stated that it was not cognizable because it failed to state a
federal claim. As noted in the text, Clayton’s petition alleged a violation
of his federal due process rights when the state court denied his
resentencing petition without a hearing, thereby depriving him of a liberty
interest without due process. Federal due process challenges to state
adjudications of state substantive rights are generally cognizable.
Swarthout v. Cooke, 562 U.S. 216, 221 (2011); Gutierrez v. Griggs,
695 F.2d 1195, 1197–98 (9th Cir. 1983). This may be particularly true
where, as here, a pro se petitioner raises a question not yet clearly decided.
See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
9–12 (1979) (outlining federal due process protections for state parole and
good time but not resentencing); Porter v. Ollison, 620 F.3d 952, 958 (9th
Cir. 2010) (“Prisoner pro se pleadings are given the benefit of liberal
construction.”); Hendricks, 908 F.2d at 491 (describing the standard for
dismissal on the basis of non-cognizability as “palpably incredible” or
“patently frivolous or false”).
                    CLAYTON V. BITER                    13

§ 2241; Martinez-Villareal v. Stewart, 118 F.3d 628, 634–35
(9th Cir. 1997), aff’d, 523 U.S. 637 (1998).

  APPLICATION            DENIED       and     PETITION
TRANSFERRED.
