                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 TANIKO C. SMITH,                                  No. 15-16967
               Petitioner-Appellant,
                                                     D.C. No.
                      v.                          2:12-cv-00952-
                                                    APG-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.
2                        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.
                         SMITH V. WILLIAMS                                 3

                              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


    1
      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.
4                    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.
                    SMITH V. WILLIAMS                        5

§ 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-of-
limitations period for state prisoners runs from the date on
which the judgment pursuant to which the prisoner is being
6                            SMITH V. WILLIAMS

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-of-
limitations provision. Thus, the statute of limitations must



    2
        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).
                     SMITH V. WILLIAMS                         7

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
8                    SMITH V. WILLIAMS

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
                        SMITH V. WILLIAMS                              9

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))).
10                        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 statute-
of-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
                      SMITH V. WILLIAMS                        11

                               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).
