United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition as second or successive or, in the alternative, as untimely.
In his petition, petitioner asserts the following three grounds for relief: (1) the trial court abused its discretion when it refused to recall and resentence petitioner pursuant to California's Three Strikes Reform Act of 2012; (2) the Three Strikes Reform Act of 2012 violates the Double Jeopardy Clause and the Due Process Clause of the Fourteenth Amendment; and (3) California's Three Strikes Reform Act of 2012 violates the Ex Post Facto Clause. (Pet. at 7-10)
I. Second or Successive
"A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed...." 28 U.S.C. § 2244(b)(2). This is the case unless,
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). Before filing a second or successive petition in the district court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
In this case, the court is not persuaded by counsel for respondent's argument that the petition pending before this court is second or successive. In his petition, petitioner does not seek to challenge his original 1995 judgment of conviction or the indeterminate sentence of twenty-five years to life in state prison imposed pursuant thereto, which he previously challenged in a federal habeas petition before this court. See Tuggle v. Campbell, No. 2:00-cv-02080 DFL JFM. Rather, petitioner now seeks to challenge a decision of the Sacramento County Superior Court, issued on March 15, 2013, denying his petition for resentencing under California Penal Code § 1170.126. (Resp't's Lodged Doc. 17 (Pet'r's Ex. D)) In this regard, petitioner's claims are not directed at his underlying conviction and sentence, and therefore, the pending petition is not second or successive. See Hill v. State of Alaska, 297 F.3d 895, 897-99 (9th Cir. 2002) ("[T]he Supreme Court has declined to read § 2244 to preclude prisoners from bringing habeas claims that could not have been brought in earlier petitions."); Benson v. Chappell, No. SACV 14-0083 TJH (SS), 2014 WL 6389443 at *4 (C.D. Cal. Nov. 13, 2014) (where a habeas petition challenges a state court's denial of a motion to reconsider his sentence under Three Strikes Reform Act of 2012 the petition is not "second or successive" under § 2244); De La Torre v. Montgomery, No. CV 14-07450, 2014 WL 5849340 at *2 (C.D. Cal. Oct. 7, 2014) (same); Hughes v. People, No. ED CV 14-1745 GAF (DFM), 2014 WL 5089416 at *2 (C.D. Cal. Sept. 10, 2014) (same); Arroyo v. Biter, No. SA CV 14-1284, 2014 WL 4656473 at *1 n.3 (C.D. Cal. Aug. 22, 2014) (same); Johnson v. Davis, No. CV 14-3056 JVS (MAN), 2014 WL 2586883 at *2 (C.D. Cal. June 9, 2014) (same). Cf. Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (a petition is not "second or successive" when "there is a new judgment intervening between the two habeas petitions, " and the petition challenges the new judgment). In fact, petitioner could not have raised his present claims in his first federal habeas corpus petition given that § 1170.126 had not even become law in California until 2012. Accordingly, the court will recommend that respondent's motion to dismiss the pending petition as second or successive be denied.
II. AEDPA Statute of Limitations
On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...