In California, a court’s award of additional presentence credits to a prisoner creates a new, intervening judgment that the prisoner may challenge in a federal habeas petition without the petition being denied as “second or successive” under AEDPA. In 2001, Gonzalez was convicted of four counts of attempted murder. His conviction was affirmed on direct appeal. He filed a series of state and federal writ petitions but failed to secure relief. In 2013, he filed a motion to correct his presentence custody credits. The state trial court granted additional credits and ordered the preparation of an amended abstract of judgment. Gonzalez unsuccessfully sought reconsideration of his motion with a formal resentencing hearing, then filed another state appeal. The trial court’s credit ruling was affirmed. Gonzalez filed a federal writ petition challenging both his conviction and sentence. The district court summarily dismissed the petition without prejudice as an unauthorized second or successive petition. Gonzalez appealed. Held: Reversed. Under AEDPA, a state prisoner is ordinarily prohibited from filing more than one federal writ petition challenging his conviction or sentence (28 U.S.C. § 2244(b)). However, where there is a new judgment intervening between the two habeas petitions, the petition challenging the new judgment is not a successive habeas petition even if the petition challenges only undisturbed portions of the original judgment. Here, the Ninth Circuit analyzed California law related to presentence credits and determined that “in California, a court’s recalculation and alteration of the number of time-served or other similar credits awarded to a petitioner constitutes a new judgment.” The sentence is the judgment in a criminal case and the alteration of the number of presentence credits replaces an invalid sentence with a valid one.
The fact that in California an error in presentence credits may be corrected by the superior court rather than on appeal has no bearing on the legal effect of that correction. The state argued that a correction in the number of days of presentence custody credits is merely “an error in doing the math” allowed by Penal Code section 1237.1, and does not result in a new judgment. However, the fact presentence credits can be corrected by the superior court has no bearing on the legal effect of that correction, because the sentence is still being amended to create a legal term, pursuant to which a defendant is being held.
The amendment to petitioner’s judgment to correct his presentence custody credits did not operate as a nunc pro tunc order. The state also argued that the correction of Gonzalez’s presentence credits operated as a nunc pro tunc (“now for then”) order, so did not affect the finality of the initial judgment. “In California, the function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered.” Nunc pro tunc orders may only be used to correct scrivener’s errors, not mathematical errors that lead to a substantive change in the judgment. The amendment of Gonzalez’s credits could not be ordered nunc pro tunc and the amendment to the judgment clearly resulted in a new judgment, which authorized him to file another federal writ petition.
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/11/14-56855.pdf