                                                                          FILED
                           NOT FOR PUBLICATION                             NOV 12 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THOMAS W.S. RICHEY,                              No. 13-35830

              Petitioner - Appellant,            D.C. No. 3:13-cv-05231-BHS

  v.
                                                 MEMORANDUM*
STEPHEN SINCLAIR, Superintendent,
Clallam Bay Corrections Center,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                      Argued and Submitted October 6, 2014
                              Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Petitioner Thomas Richey (“Richey”) appeals the district court’s finding that

his petition for a writ of habeas corpus was a “second or successive habeas corpus

application” under 28 U.S.C. § 2244(b). We issued a certificate of appealability on


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the limited issue of “whether the 2010 amended state court judgment is a new,

intervening judgment as described in Magwood v. Patterson, 561 U.S. 320 (2010),

and Wentzell v. Neven, 674 F.3d 1124, 1126–28 (9th Cir. 2012).” We have

jurisdiction under 28 U.S.C. § 2253.1

      We review de novo a district court’s determination that a petition is “second

or successive” under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Wentzell, 674 F.3d at 1126 (citing United States v. Lopez, 577 F.3d

1053, 1059 (9th Cir. 2009)).

      The U.S. Supreme Court in Magwood held that a habeas petition challenging

a new, intervening judgment resulting from a re-sentencing was not a “second or

successive application” under 28 U.S.C. § 2244(b). 561 U.S. at 342. We extended

Magwood in Wentzell and held that an amended judgment that vacates a conviction

and sentence is a new, intervening judgment even though the habeas petition

challenges unchanged portions of the original judgment. Wentzell, 674 F.3d at

1126–28 (citing Magwood, 561 U.S. at 339–40).




      1
        Because the parties are familiar with the facts and procedural history, we do
not restate them here except as necessary to explain our decision.

                                          2
      In 1987, Richey pleaded guilty to attempted first degree murder, or in the

alternative, attempted first degree felony murder.2 After Richey collaterally

attacked his conviction, the Washington Supreme Court in 2008 held that Richey

could not plead to the crime of attempted felony murder because such a crime did

not exist, but that Richey’s judgment and sentence remained valid because Richey

had pleaded guilty to attempted intentional murder which was charged as an

alternative in the amended information. In 2010, the Pierce County Superior Court

corrected Richey’s judgment by removing the statutory citation to attempted felony

murder and adding the citation to attempted intentional murder. As in Wentzell,

the 2010 corrected judgment removed an invalid basis for Richey’s conviction, i.e.,

attempted felony murder, and was a new, intervening judgment. Therefore,

Richey’s first federal habeas petition following the 2010 judgment was not a

“second or successive habeas corpus application” under 28 U.S.C. § 2244(b).

      Richey’s present petition is the first petition to challenge the 2010

judgment.3 This court asked the parties whether Richey’s January 2013 petition



      2
       Richey also pleaded guilty to and was convicted of murder in the first
degree. That conviction is not at issue here.
      3
       Richey filed two federal habeas petitions on March 27, 2013, which created
two separate case numbers. The district court consolidated those cases. This
memorandum addresses those consolidated cases.

                                          3
filed in the Western District of Washington in In re Richey, No. 3:13-cv-05043-

RBL was “a first petition for purposes of 28 U.S.C. § 2244(b), in light of the

district court’s order granting Richey’s motion to withdraw the petition.” Richey

responded that the January 2013 petition was not a first petition challenging the

2010 judgment because the district court permitted Richey to withdraw the petition

without prejudice. The appellee offered no argument to the contrary. We agree

with Richey and hold that his present petition challenging the 2010 judgment is not

a second or successive habeas corpus application under 28 U.S.C. § 2244(b). We

express no opinion as to whether the petition is barred by AEDPA’s one-year

statute of limitations or regarding the merits of the petition.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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