                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 BOBBY DARRELL COLBERT,                             No. 19-71246
                      Applicant,

                      v.                              OPINION

 RON HAYNES,
                               Respondent.

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

                    Submitted March 2, 2020 *
                      Seattle, Washington

                      Filed March 30, 2020

          Before: Sandra S. Ikuta, Ryan D. Nelson,
          and Danielle J. Hunsaker, Circuit Judges.

                   Opinion by Judge Hunsaker




    *
      The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                      COLBERT V. HAYNES

                          SUMMARY **


                         Habeas Corpus

   The panel denied Bobby Darrel Colbert’s application
pursuant to 28 U.S.C. § 2244(b) for leave to file a second or
successive habeas corpus petition challenging his 2005
Washington state sentencing judgment.

    The panel held that the habeas petition Colbert seeks to
file is a second or successive petition under Magwood v.
Patterson, 561 U.S. 320 (2010), because, under Washington
law, removal of a victim-restitution condition from the
sentencing judgment did not create a new, intervening
judgment.

    The panel also held that Colbert does not satisfy the
requirements under 28 U.S.C. § 2244(b)(2) for filing a
second or successive petition because none of the arguments
raised in the petition relate to a new constitutional rule and
each of the arguments raises a procedural error that, even if
proven true, has no bearing on his guilt.


                            COUNSEL

Michael C. Kahr, Karhs Law Firm P.S., Seattle, Washington,
for Applicant.




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

John J. Samson, Assistant Attorney General, Corrections
Division; Robert W. Ferguson, Attorney General; Office of
the Attorney General, Olympia, Washington; for
Respondent.


                        OPINION

HUNSAKER, Circuit Judge:

     The primary question in this case is whether removal of
a victim-restitution condition from Bobby Darrel Colbert’s
Washington state sentencing judgment created a new
judgment under Magwood v. Patterson, 561 U.S. 320
(2010). Originally, Colbert filed an application for leave to
file a second or successive habeas petition under 28 U.S.C.
§ 2254. He now contends that removal of the victim-
restitution condition from his sentencing judgment created a
new judgment, which makes his habeas petition a first, rather
than a second or successive, petition. 28 U.S.C. § 2244(b).
We have jurisdiction under 28 U.S.C. § 2244 and hold that
removal of the victim-restitution condition did not create a
new judgment under Washington law. We also hold that
Colbert does not satisfy the requirements for filing a second
or successive habeas petition, and we deny his application.

                   I.   BACKGROUND

    In 2005, Colbert was convicted in Washington state
court of one count of rape in the third degree and one count
of rape in the second degree. He was sentenced to twenty
months on the third-degree count and 136 months to life on
the second-degree count, running concurrently. The
sentencing court also imposed community-custody terms on
4                       COLBERT V. HAYNES

both counts. 1 The conditions imposed for community
custody included that Colbert pay restitution for his victims’
“crime-related counseling and medical treatment” costs.

    After an unsuccessful direct appeal, State v. Colbert, No.
56298-3-I, 2006 WL 2048237 (Wash. Ct. App. July 24,
2006), rev. denied, 160 Wash. 2d 1004 (2007), Colbert filed
numerous collateral challenges to his 2005 conviction,
including five federal habeas petitions, State v. Colbert, No.
77332-1-I, 2018 WL 3434708, at *1 (Wash. Ct. App. July
16, 2018). In 2014, Colbert challenged in Washington state
court two of the community-custody conditions imposed in
his sentencing judgment—the victim-restitution condition
and an alcohol-prohibition condition. Id.

     The state argued that both conditions were within the
trial court’s authority but that the victim-restitution
condition was moot because the victims had not requested
restitution. The Washington Court of Appeals dismissed
Colbert’s challenge, and on review the Acting
Commissioner of the Washington Supreme Court also
rejected his challenge, stating in part:

         [W]hile the State does not concede that the
         trial court lacked authority to require victim
         reimbursement as a community custody
         condition, it has conceded that the condition
         may be stricken because the victims have not
         sought reimbursement. Accepting the State’s

    1
      Under Washington law, a term of “community custody” is “that
portion of an offender’s sentence of confinement in lieu of earned release
time or imposed as part of a sentence . . . and served in the community
subject to controls placed on the offender’s movement and activities by
the department.” Revised Code Washington (“RCW”) § 9.94A.030(5);
see also RCW § 9.94A.703.
                    COLBERT V. HAYNES                         5

       concession that this condition may be
       stricken, this court need not address the
       merits of the condition.

       As to the alcohol prohibition, it is expressly
       permitted by statute without regard for
       whether the crime was alcohol-related.
       Former RCW 9.94A.700(5)(d) (2003).

       ....

       The motion for discretionary review is denied
       on the condition that the State take steps
       necessary to strike the victim cost
       reimbursement       community        custody
       condition.

Id. (emphasis in original) (footnote omitted).

    After the Acting Commissioner’s decision, the trial court
struck the victim-restitution condition but otherwise left
Colbert’s sentencing judgment intact. Id. Colbert appealed,
arguing the trial court violated his constitutional rights by
changing his sentencing judgment when he was not present
and when he did not have counsel. Id. The Washington Court
of Appeals denied Colbert’s appeal noting, “the Supreme
Court Commissioner did not remand the matter to the
superior court” but instead directed the state “to take steps”
to strike the victim-restitution condition; an act that “did not
involve resentencing and amounted to the prosecutor
stipulating to Colbert’s request to strike the condition.” Id.
at * 2. The Washington Court of Appeals further concluded
that removing the victim-restitution condition was
“essentially a ministerial act that was not a critical stage of
the proceedings.” Id.
6                   COLBERT V. HAYNES

    In May 2019, Colbert sought leave from this Court to file
a second or successive federal habeas petition challenging
his 2005 sentencing judgment. We appointed counsel for
Colbert and directed the parties to address whether removal
of the victim-restitution condition created a new judgment,
and Colbert filed a supplemental application arguing that a
new judgment was created.

                    II.   DISCUSSION

A. Is Colbert’s habeas petition a first or a second or
   successive petition?

    A petitioner must obtain leave from the Court of Appeals
before filing a “second or successive” habeas petition in the
district court. 28 U.S.C. § 2244(b)(3)(A). In Magwood, the
Supreme Court held that “second or successive” does not
refer to “all § 2254 habeas petitions filed second or
successively in time.” 561 U.S. at 331–32. Instead, this
phrase is interpreted “with respect to the judgment
challenged.” Id. at 332–33. A petition is not “second or
successive” under § 2244(b) if it challenges for the first time
a “new judgment intervening between the two habeas
petitions.” Id. at 341–42 (internal quotations omitted).
Magwood did not answer, however, what constitutes a
“new” judgment; “it simply held that the prisoner’s
resentencing in that case was a new judgment.” Turner v.
Baker, 912 F.3d 1236, 1239 (9th Cir. 2019) (discussing
Magwood, 561 U.S. at 342).

    We look to the applicable state law to determine whether
a sentencing change made by the state court created a new
sentencing judgment. Turner, 912 F.3d at 1240; Gonzalez v.
Sherman, 873 F.3d 763, 769 (9th Cir. 2017). Critical to this
analysis is whether the state court action “replaces an invalid
sentence with a valid one.” Gonzalez, 873 F.3d at 769; see
                    COLBERT V. HAYNES                       7

also Turner, 912 F.3d at 1240. Thus, in Gonzalez, we held
that changing presentence credits results in a new judgment
under California law because application of custody credits
determines “the total duration of time which a convicted
person will have to spend in prison” and a sentence is legally
valid only if it awards all the credits to which the person is
entitled. 873 F.3d at 769; see also Wentzell v. Neven,
674 F.3d 1124, 1127–28 (9th Cir. 2012) (holding petition
challenging amended judgment that vacated a conviction on
one count as invalid under state law but carried forward
convictions on other counts was not a “second or successive
petition”). We reached the same result applying Nevada law
in Turner. 912 F.3d at 1240. Here, to determine whether
removal of the victim-restitution condition from Colbert’s
sentencing judgment created a new judgment, we turn to
Washington law.

     In Washington, only sentencing errors stemming from a
trial court exceeding its statutory authority render a
sentencing judgment invalid. In re Coats, 267 P.3d 324, 331
(Wash. 2011) (en banc). Under the Sentencing Reform Act
(SRA) in effect when Colbert was sentenced, trial courts had
authority to require defendants to “perform affirmative
conduct reasonably related to the circumstances of the
offense.” RCW § 9.94A.712(6)(a) (2003). The SRA also
expressly authorized trial courts to “order the payment of a
legal financial obligation as part of the sentence” in felony
cases, including restitution. RCW § 9.94A.760(1) (2003).
Indeed, requiring payment of restitution to the victim when
the offense results in injury, including payment for
“treatment for injury” and “the costs of counseling
reasonably related to the offense” was expressly authorized.
RCW § 9.94A.753(3) (2003). Therefore, we conclude that
the trial court did not exceed its statutory authority by
ordering Colbert to pay restitution to his victims, and thus
8                   COLBERT V. HAYNES

there was no error in the sentence, let alone the sort of
sentencing error that would render a judgment invalid.

     The Washington Court of Appeals’ decision stating that
removal of the victim-restitution condition was “a
ministerial act that was not a critical stage of the proceedings
against Colbert” further supports our conclusion. Colbert,
2018 WL 3434708, at *2. Even if there had been an error,
the Washington Supreme Court has indicated that sentencing
errors correctible through ministerial action that does not
involve exercising discretion are not errors that render the
original sentence invalid. See State v. Ramos, 246 P.3d 811,
812 (Wash. 2011) (en banc). Unlike a sentencing or
resentencing, which are critical stages of a criminal
proceeding and do involve discretionary decision-making,
an offender has no constitutional right to be present or to
have counsel when a court makes a ministerial sentencing
correction. Id. Washington law is also clear that if a “trial
court simply corrects the original judgment and sentence, it
is the original judgment and sentence entered by the original
trial court that controls the defendant’s conviction and term
of incarceration.” State v. Kilgore, 216 P.3d 393, 399 (Wash.
2009) (en banc). Accordingly, even if there had been an error
in the sentencing, the Washington Court of Appeals’
characterization of the change to Colbert’s sentencing
judgment as a “ministerial act” is compelling, if not
determinative.

    We simply see no indication in Washington statute or
caselaw that the trial court exceeded its legal authority by
ordering Colbert to pay restitution to his victims for their
crime-related treatment expenses such that removing this
restitution requirement “replace[d] an invalid sentence with
a valid one.” Gonzalez, 873 F.3d at 769. Therefore, we hold
                    COLBERT V. HAYNES                       9

that Colbert’s habeas application does not seek to challenge
a new, intervening judgment.

B. Does Colbert satisfy the requirements for filing a
   second or successive habeas petition?

    Having concluded that the sentencing judgment Colbert
seeks to challenge is not a new judgment, we turn to whether
Colbert satisfies the requirements for filing a second or
successive petition under 28 U.S.C. § 2244(b). There are two
circumstances in which a second or successive petition
challenging a state court judgment is permitted. First, where
the applicant’s claim “relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court.” Id. § 2244(b)(2)(A). And second, where
the applicant could not have reasonably discovered the
factual basis for his claims at the time of his initial habeas
petition and the previously undiscovered facts, if true, prove
by clear and convincing evidence that a reasonable fact
finder could not “have found the applicant guilty of the
underlying offense.” Id. § 2244(b)(2)(B); Brown v. Muniz,
889 F.3d 661, 668 (9th Cir. 2018), cert. denied sub nom.
Brown v. Hatton, 139 S. Ct. 841 (2019).

    Before addressing whether Colbert can make a prima
facie showing under § 2244(b)(2), we address two
procedural points. Colbert argues it is premature for the
Court to consider whether he satisfies the second or
successive petition requirements because when the Court
appointed him counsel it directed the parties to address only
whether the change to Colbert’s sentencing judgment
constituted a new judgment. We disagree. The ultimate issue
before the Court is whether Colbert can proceed with his
habeas petition, and the Court’s prior order does not preclude
this panel from considering whether Colbert satisfies the
requirements for filing a second or successive petition in the
10                 COLBERT V. HAYNES

event we conclude, as we have, that the judgment he seeks
to challenge is not new. Colbert also argues that determining
whether his petition meets § 2244(b)(2)’s requirements
requires a “complete record review.” Again, we disagree.
The only new facts raised in Colbert’s petition relate to
removal of the victim-restitution condition, which are
currently before the Court.

    Turning to the merits of the § 2244(b)(2) analysis, none
of the arguments raised in Colbert’s petition relate to a new
constitutional rule. Likewise, each of his arguments raises a
procedural error that, even if proven true, has no bearing on
his guilt. Therefore, Colbert cannot make the necessary
prima facie showing under either § 2244(b)(2)(A) or (B),
and we must deny his application for leave to file a second
or successive petition. 28 U.S.C. § 2244(b)(3)(C).

                   III.   CONCLUSION

    Removal of the victim-restitution condition from
Colbert’s sentencing judgment did not create a new,
intervening judgment under Washington law. Therefore, to
proceed with his habeas petition, Colbert must satisfy the
requirements for filing a second or successive petition under
§ 2244(b)(2), which he cannot do. Colbert’s application for
leave to file his habeas petition is

     DENIED.
