                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LUKE AARON SCOTT,                               No.    16-15879

                Petitioner-Appellant,           D.C. No.
                                                4:14-cv-02707-JSW
 v.

J. LIZARRAGA, Warden,                           MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                           Submitted August 18, 2017**
                            San Francisco, California

Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,*** District
Judge.

      Luke Scott appeals the district court’s dismissal of his petition filed pursuant

to 28 U.S.C. § 2254 on the ground that it was an unauthorized “second or


      *
             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 Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
successive” habeas petition. In 1988, a San Mateo County Superior Court jury

found Scott guilty of first degree murder, robbery, extortion, and burglary. On

direct review in 1990, the California Court of Appeal reversed the judgment of

conviction for extortion and directed the trial court to vacate the judgment with

respect to the extortion count. The trial court did not implement this order until

2012. On January 4, 2013, the trial court filed two amended abstracts of

judgments: the first reflecting Scott’s unchanged sentence of life without the

possibility of parole for first degree murder, and the second reflecting the vacated

extortion conviction by listing only his convictions and sentences for robbery and

burglary. In the period between the California Court of Appeal decision and the

entry of the amended judgment implementing that decision, Scott filed his first

federal habeas petition, which was denied in 2003. After the state court entered the

amended abstracts of judgment, Scott filed his numerically second federal habeas

petition in 2014.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes

various constraints on “second or successive” federal habeas petitions. 28 U.S.C.

§ 2244(b). But a second-in-time habeas petition is not “second or successive” if

the petition challenges a “new judgment intervening between the two habeas

petitions.” Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (quoting Burton v.

Stewart, 549 U.S. 147, 156 (2007)). We have held that this exception applies even


                                          2                                      16-15879
if the “amended judgment left the convictions and sentences on [other] counts

unchanged, and the second petition challenges those unaltered components of the

judgment.” Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012).

      Based on Magwood and Wentzell, Scott’s 2014 habeas petition is not

“second or successive.” Like the petitioner in Wentzell, Scott challenges the

unaltered components of his original judgment—namely, his convictions for first

degree murder, robbery, and burglary, and his sentence of life imprisonment

without possibility of parole. Because Scott’s 2014 petition challenges an

intervening judgment, the petition is not “second or successive” within the

meaning of § 2244(b). The delay in the entry of the amended judgment does not

change this analysis.

      In determining whether a petition is “second or successive,” it is the trial

court’s entry of judgment, not the reviewing court’s order to vacate a conviction or

sentence, that is the relevant event.1 In Magwood, for example, the Supreme Court

addressed “Magwood’s application challenging his 1986 death sentence, imposed

as part of resentencing in response to a conditional writ from the District Court.”

561 U.S. at 330. The Court repeatedly referred to the “judgment” entered by the



1
  Likewise, AEDPA’s one-year limitations period begins when the trial court enters
judgment. See United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir. 2005)
(holding that limitations period had not begun where we vacated convictions but
district court had not yet entered an amended judgment).

                                          3                                     16-15879
state court, not the conditional writ granted by the federal court, in holding that the

second-in-time petition was not “second or successive.” Id. at 327, 331-33; see

also id. at 338 (“[T]he existence of a new judgment is dispositive.”). In Wentzell

we also focused on “the amended judgment of conviction,” not the “order[] that the

judgment of conviction be amended.” 674 F.3d at 1125, 1127. Here, the

California Court of Appeal did not amend or modify the judgment; it directed the

trial court to do so. Thus, the 2013 amended judgment is the focus of our analysis.

The trial court’s delay in entering the amended judgment does not alter our focus.

      In dismissing Scott’s petition as “second or successive,” the district court

incorrectly held that the trial court’s 2013 amended judgment merely corrected a

clerical error, which it characterized as the court’s failure to enter judgment

implementing the appeal court’s 1990 decision. Clerical errors are errors made in

recording the judgment. In re Candelario, 477 P.2d 729, 730 (Cal. 1970). “An

amendment that substantially modifies the original judgment or materially alters

the rights of the parties,” on the other hand, “may not be made by the court under

its authority to correct clerical error, . . . unless the record clearly demonstrates that

the error was not the result of the exercise of judicial discretion.” Id. Here, the

trial court’s 2013 amendment corrected the original judgment by eliminating one

count of conviction. As in Wentzell, we do not regard the error in the original

judgment as clerical. 674 F.3d at 1128. That the correction to the judgment was


                                            4                                      16-15879
delayed in this case does not change the nature of the error corrected by the

amended judgment. See also Magwood, 561 U.S. at 341-42 (“We see no need to

engage in such novel and complex rationalizations. AEDPA’s text commands a

more straightforward rule: where . . . 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.” (citations and quotation marks omitted)).

Accordingly, the district court erred in holding that the trial court corrected only a

clerical error.2

         REVERSED AND REMANDED.




2
    Scott’s request for judicial notice is denied as unnecessary.

                                             5                                  16-15879
                                                                            FILED
Scott v. Lizarraga, Case No. 16-15879
                                                                              OCT 26 2017
Rawlinson, Circuit Judge, concurring:
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
      I concur in the result reached by the majority, because we have now clarified

that an amended judgment “correct[ing] errors of the mathematical sort” in an

intervening judgment permits the filing of what would have otherwise been a

second or successive petition under 28 U.S.C. § 2244(b)(1). See Gonzalez v.

Sherman, No. 14-56855, __F.3d__, 2017 WL 4532464 at *6-7 (9th Cir.

October 11, 2017).
