Cox v. Diaz

Background

Nicholas Adam Cox, a California prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his custody based on convictions for shooting at an occupied building, shooting from a vehicle, and being a violent felon in possession of a firearm. He had previously filed a federal petition concerning the same conviction, and that petition was denied on the merits on September 4, 2018.

Cox’s new petition challenged the state appellate court’s rejection of his request for relief based on a new or intervening judgment and resentencing under California Senate Bill 620. The bill allowed trial courts, at sentencing or resentencing, to strike or dismiss certain firearm enhancements. Cox argued that an amended abstract of judgment issued in August 2017 should have made his case eligible for review under the bill. The state courts rejected that argument, reasoning that the bill applied retroactively only to nonfinal cases and that Cox’s amended judgment was not eligible.

Court’s Analysis

The court addressed whether the petition was a “second or successive” petition under 28 U.S.C. § 2244. Generally, a claim omitted from an earlier § 2254 petition must be dismissed unless it meets specified exceptions, and a petitioner must obtain authorization from the appropriate federal appeals court before filing a second or successive petition in the district court.

The court recognized an exception for a petition challenging a new judgment entered between two federal habeas petitions. It concluded that exception did not apply because Cox’s amended judgment was issued in August 2017, before he filed his first federal petition and before that petition was denied. The court stated that Cox could have included the claim in his first petition or asked to pause that case while he exhausted the new claim in state court. Cox did not indicate that he had obtained permission from the Ninth Circuit to file the second petition.

The court also considered Cox’s suggestion that he did not learn about the amended judgment until November 2018, after the first petition was denied. The court stated that, even if the amended judgment could be treated as new for that reason, Cox still could not obtain federal relief because his claim concerned the state courts’ interpretation and application of state law. The court held that a state-law issue cannot be converted into a federal claim merely by labeling it a due-process violation.

Disposition

The court dismissed the second petition and provided one opportunity to amend to address the identified deficiencies. Cox was required to file an amended petition within 28 days after service of the order. The court warned that failing to do so could result in dismissal of the action. It also directed Cox to keep the court informed of any change of address and to comply with court orders in a timely manner.