Montalvo v. California Department of Corrections & Rehabilitation

610 F. App'x 650

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2015
• Docket: 14-15768
• Status: Unpublished

Opinion

MEMORANDUM **

John Montalvo appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as second or successive. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir.2012), and we reverse and remand.

Montalvo contends that his habeas petition is not second or successive under section 2244(b) because it is his first challenge to the March 1, 2011, decision by the California Board of Parole Hearings (“the Board”) denying him parole. As an initial matter, we deny as unnecessary Montal-vo’s request to expand the certificate of appealability (“COA”) to address this issue because it is encompassed within the district court’s order granting a COA. See Tillema v. Long, 253 F.3d 494, 502 n. 11 (9th Cir.2001) (court may consider meaning of language contained in AEDPA’s statute of limitations provisions when the district court certified the question of whether the habeas petition was timely), abrogated in part on other grounds in Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).

The district court concluded that Mon-talvo’s 2012 habeas petition is second or successive to his 2008 habeas petition. 1 The latter petition, however, challenged the Board’s 2006 decision denying Montal-vo parole. In contrast, Montalvo’s 2012 habeas petition pertains to a different state action — the Board’s 2011 decision— that occurred after the district court denied Montalvo’s 2008 habeas petition. We, accordingly, agree with Montalvo that his 2012 habeas petition is not second or successive under section 2244(b), notwithstanding the similarity of some of the claims in the two petitions. See Wentzell, 674 F.3d at 1126-28 (a second-in-time ha-beas petition filed after a new, intervening judgment is not second or successive even though it challenges unchanged portions of the original judgment); United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir.2011) (per curiam) (prisoner may file a second-in-time petition raising claims that became ripe for adjudication after conclusion of first habeas proceeding).

We decline to address appellee’s argument that the dismissal of Montalvo’s petition should be affirmed on the alternate ground that it is untimely, which the district court can address in the first instance on remand.

REVERSED and REMANDED for further proceedings.

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

1 . We grant appellant’s request for judicial notice of documents from Eastern District of California case numbers 2:08-cv-l 197-GEB-EFB, and 2:08-cv-01224-LKK-CKD.