Defendant’s petition for writ of habeas corpus challenging the state court’s denial of his resentencing petition was not a prohibited successive petition challenging his original conviction. In 1997, defendant was convicted of carjacking, robbery, and evading a police officer. The trial court imposed a Three Strikes life sentence based on defendant’s prior serious felony convictions. Defendant’s sentence was affirmed on direct appeal and his federal habeas petition was denied. After the Three Strikes Reform Act passed in 2012, defendant sought resentencing (Pen. Code, § 1170.126, subd. (b)). Without a hearing, the superior found defendant ineligible for resentencing. This decision was affirmed on appeal. Defendant sought habeas relief in the district court, alleging he was unconstitutionally denied procedural due process by the denial of a hearing. The district court dismissed the petition, finding it was a successive petition, and that defendant was challenging his original sentence for the second time. When defendant sought permission to file a successive petition (28 U.S.C. § 2244, subd. (b)), the Ninth Circuit requested briefing on whether it was in fact a successive petition. Held: Reversed. “Habeas petitions that are second-in-time are not necessarily second or successive.” Petitions that challenge new or intervening judgments are not successive petitions, even where the intervening judgment leaves in place an earlier challenged conviction and sentence. In California, an appeal may be taken from a post-judgment order “affecting the substantial rights of the party” (Pen. Code, § 1237), and this applies to the denial of a resentencing petition under Penal Code section 1170.126 (Teal v. Superior Court (2014) 60 Cal.4th 595). The denial of defendant’s resentencing petition was a new judgment distinct from the original conviction. Because the petition did not attempt to challenge defendant’s original conviction, it was not subject to the “second or successive” petition bar under section 2244, subdivision (b)(2).

Whether defendant’s claim is cognizable is irrelevant to the Ninth Circuit’s adjudication of defendant’s application to file a second or successive habeas petition. The prosecution argued that defendant’s application to file a successive petition should be denied because his claim is not cognizable. However, cognizability plays no role in the court’s adjudication of such an application; it is the province of the district court to consider cognizability of a habeas petition. Under Rule 4 of the Rules Governing § 2254 Cases, district courts adjudicating habeas petitions are instructed to summarily dismiss claims that are clearly not cognizable. Dismissal on the basis of cognizability is appropriate if the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false. However, Rule 4 applies only to district courts. Thus, in reviewing an application for a successive petition, the circuit court does not assess the cognizability of that petition. [Editor’s Note: In a footnote, the court noted that “[f]ederal due process challenges to state adjudications of state substantive rights are generally cognizable. Swarthout v. Cooke, 562 U.S. 216, 221, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011)[.]”]

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/21/15-71566.pdf