Richard Bryan v. Pat Glebe

610 F. App'x 651

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2015
• Docket: 14-35747
• Status: Unpublished

Opinion

MEMORANDUM **

Richard Wesley Bryan 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.

Bryan contends that his 2014 habeas petition is not second or successive to the habeas petition he filed in 2013. We agree. Bryan’s 2013 petition challenged sanctions imposed pursuant to a prison disciplinary proceeding, whereas Bryan’s 2014 habeas petition challenged, for the first time, his underlying conviction. Because different state conduct is at issue, the latter petition is not second or successive. See Magwood v. Patterson, 561 U.S. 320, 333, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010) (“the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged”); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir.2002) (later petition was not second or successive because “Hill’s claims relating to mandatory parole challenge the calculation of his release date rather than the sentence itself’). The state’s reliance on Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam), is misplaced. In Burton, unlike here, both petitions attacked the same judgment. See id. at 156, 127 S.Ct. 793. We therefore reverse the dismissal of Bryan’s habeas petition and remand to the district court for further proceedings.

We express no opinion as to the merits of Bryan’s section 2254 habeas petition or whether it meets the procedural requirements of section 2244(d) and 2254(b).

REVERSED and REMANDED for further proceedings.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.