The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge
MEMORANDUM OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS PETITION
This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. The underlying facts*fn1 reveal that on June 25, 2005, a San Bernardino County Superior Court jury convicted Petitioner Daniel Arenas of the following crimes: possession of a firearm by an ex-felon (Cal. Penal Code § 12021(a)(1)) (count 1); exhibiting a loaded firearm in a rude, angry or threatening manner (Cal. Penal Code § 417(b)) (count 2); misdemeanor battery (Cal. Penal Code § 243(e)(1)) (count 3); assault with a semiautomatic firearm (Cal. Penal Code § 245(b)) (count 4); exhibiting a firearm in the presence of an officer (Cal. Penal Code § 417(c)) (count 5); exhibiting a deadly weapon to an officer to resist arrest (Cal. Penal Code § 417.8) (count 6); resisting an officer (Cal. Penal Code § 69) (count 7); assault on an officer with a semiautomatic firearm (Cal. Penal Code § 245(d)(2))(counts 8 - 10); and discharge of a firearm with gross negligence (Cal. Penal Code § 246.3(a)) (count 11).
The jury found true the gang enhancement allegations charged in association with counts 1 and 5-11. (Cal. Penal Code § 186.22(b)(1)). The jury also found true the allegation that Petitioner personally used a firearm in committing counts 4 and 7, and that he personally and intentionally discharged a firearm in committing counts 8-10. (Cal. Penal Code §§ 12022.5(a),(d), 12022.53(c)). In addition, the jury found true the allegations that Petitioner had incurred two prior strike convictions, two serious prior felony convictions, and three prior prison terms. (Cal. Penal Code §§ 667(a)(1), 667.5(b), 667(b)-(i), 1170.12(a)-(d)). Petitioner was sentenced to a prison term of sixty-five years and four months.
Petitioner's direct appeals and petitions for post-conviction relief were denied by the California courts. On July 15, 2008, Petitioner filed a petition for writ of habeas corpus in this Court, raising eight grounds for relief. Arenas v. Felker, Case No. EDCV 08-0543-GAF (MLG). On September 29, 2009, District Judge Gary A. Feess accepted my Report and Recommendation, finding that the evidence was insufficient to support the gang enhancement allegations, and granting relief on that one claim. The remaining seven claims for relief raised by Petitioner were found to be meritless.
Respondent did not appeal this Court's judgment granting relief on the gang enhancement claim. Petitioner's request for a certificate of appealability on the rejected claims was denied by District Judge Feess on November 9, 2009. The United States Court of Appeals for the Ninth Circuit likewise denied a certificate of appealability on August 12, 2011.
Meanwhile, the case was returned to the San Bernardino County Superior Court for resentencing on the remaining charges. At the sentencing hearing, Petitioner filed a brief alleging that (1) the jury made inconsistent findings at trial that Petitioner intentionally fired his weapon and also that he willfully discharged his weapon in a grossly negligent manner, and (2) the admission of gang evidence was unduly prejudicial. (Lodgment 13.) The trial court rejected these arguments and on January 7, 2010, Petitioner was sentenced to a prison term of 48 years and 4 months.
After resentencing, Petitioner again filed a direct appeal in the California Court of Appeal, raising the two new claims for relief presented at the time of sentencing. On October 26, 2010, the California Court of Appeal affirmed the judgment, finding that Petitioner was precluded from raising these issues on appeal because they were not raised in the trial court at the time of trial or on his first direct appeal. (Lodgment 13 at 5.) On December 14, 2010, Petitioner filed a petition for review in the California Supreme Court, raising the same two grounds for relief. (Lodgment 14.) On January 19, 2011, the supreme court summarily denied review. (Lodgment 15.)
On September 19, 2011, Petitioner filed the instant habeas corpus petition in this Court, alleging the same two grounds for relief presented to the state appellate courts following his resentencing. On November 9, 2011, Respondent filed a motion to dismiss the current petition, claiming that it is a successive petition within the meaning of 28 U.S.C. § 2244(b).
Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) ("AEDPA"), a "claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). Further, a claim in a second or successive petition must be dismissed even if not presented in a prior habeas petition, unless the claim rests on new law, new evidence, or a petitioner's actual innocence. 28 U.S.C. § 2244(b)(2). The question presented here is whether the current petition is a second or successive application under section 2244(b), given that Petitioner was granted conditional habeas relief and was subsequently re-sentenced under a new judgment in state court.
In Magwood v. Patterson, -- U.S. --, 130 S.Ct. 2788, 2803 (2010), a state prisoner who had successfully challenged his death sentence in a federal habeas corpus petition, and was again sentenced to death following a new state sentencing hearing, brought a subsequent section 2254 habeas corpus petition challenging the new death sentence. The Supreme Court held that the petition was not a "second or successive" habeas corpus application under section 2244(b), even though it raised a claim for relief *that could have been brought in the first petition, because the petition was challenging a new judgment for the first time. In Magwood, the conditional writ of habeas corpus had been granted with respect to the original death sentence on the basis that the sentencing court had failed to consider statutory mitigating circumstances relating to the prisoner's mental state at the time of the murder. At both the original sentencing and the resentencing, the trial court applied as an aggravating circumstance the fact that the murder victim was an on-duty sheriff. Id. at 2792-93.
In his second federal habeas petition, filed after resentencing, Magwood asserted that his sentence was unconstitutional because he lacked fair warning at the time of his offense that Alabama's statutes would be interpreted as allowing his conduct in murdering an on-duty sheriff to be used as an aggravating circumstance in a capital sentencing. He also asserted that counsel had been ineffective during the resentencing proceeding. Id. at 2794.
The majority opinion in Magwood concluded that the text of section 2254(b) indicated that the phrase "second or successive" must be interpreted with respect to the judgment challenged, not the claim presented. Id. at 2797-98. The Court found that where there is a "new judgment intervening between the two habeas corpus petitions, an application challenging the resulting new judgment is not 'second or successive' at all." Id. at 2802. The Court concluded that Magwood's fair-warning claim asserted a new ...