                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 29 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALEX MARQUEZ,                                   No.    17-15154

                Petitioner-Appellant,           D.C. No.
                                                3:15-cv-00492-MMD-VPC
 v.

E. K. MCDANIEL and ATTORNEY                     MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding

                             Submitted June 15, 2018**
                             San Francisco, California

Before: SCHROEDER, EBEL,*** and GOULD, Circuit Judges.

      Without having the benefit of our decisions in Smith v. Williams, 871 F.3d



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
684 (9th Cir. 2017), and Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017), the

district court denied Alex Marquez’s petition for habeas relief on grounds that it

was not filed within the one-year period for seeking federal habeas relief set forth

in 28 U.S.C. § 2244(d)(1). We reverse, because Marquez’s petition was timely.

      Marquez’s initial judgment of conviction became final on August 4, 2008.

That judgment contained an unlawful sentence, so an amended judgment was

entered on December 8, 2008, that corrected this error. On March 11, 2009,

Marquez filed for post-conviction relief, tolling the running of the one-year statute

of limitations. Marquez’s petition for post-conviction relief was denied by the

state trial court and that decision was affirmed by the Nevada Court of Appeals on

February 24, 2015. Remittitur issued on March 24, 2015, restarting the running of

the statute of limitations. The district court received the petition on September 24,

2015. Under these circumstances, Marquez’s petition is timely if the statute of

limitations runs from the date of the amended judgment, and not from the date of

the initial judgment.

      We hold that the one-year period runs from the date of the amended

judgment, and that therefore Marquez’s petition was timely. In Smith v. Williams,

we held that for purposes of determining the start of the one year statute of

limitations for filing a habeas petition under 28 U.S.C. § 2244(d)(1), the relevant

judgment is the one under which a prisoner is being held. 871 F.3d at 688. Where


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an amended or corrected judgment is entered, a prisoner is held under that

amended or corrected judgment. Id. Here, the December 8, 2018 judgment made

a substantial change in Marquez’s sentence by removing an unlawful 120 month

sentencing enhancement. “[A] change to a defendant’s sentence is a change to his

judgment.” Gonzalez v. Sherman, 873 F.3d at 769. Because it effected a change in

his sentence, the December 8, 2008 judgment is a new judgment under which

Marquez is being held, and Marquez’s petition is timely. We remand for further

proceedings.1

      REVERSED and REMANDED.




1
 Appellant’s Motion to Supplement the Record on Appeal (Dkt. 11), which was
not opposed, is GRANTED.

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