Gregory Brown v. M. Atchley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY L. BROWN, Nos. 20-16290

21-15922

Petitioner-Appellant,

D.C. Nos.

v. 4:20-cv-03405-YGR

4:21-cv-02649-YGR

M. ATCHLEY, Warden,

OPINION

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted March 30, 2023

San Francisco, California

Filed August 3, 2023

Before: M. Margaret McKeown, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Ikuta

2 BROWN V. ATCHLEY

SUMMARY *

Habeas Corpus

In consolidated appeals, the panel reversed the district

court’s judgments dismissing, as second or successive under

28 U.S.C. § 2244(b), Gregory Brown’s third and fourth

federal habeas corpus petitions, and remanded.

Brown was convicted in California state court of one

count of conspiracy to commit murder and one count of

attempted murder on an aiding and abetting theory, and

sentenced to 56 years to life. His conviction and sentence

were affirmed on appeal. The district court denied his first

federal habeas petition on the merits and declined to grant a

certificate of appealability (COA); this court also declined to

grant a COA. The district court dismissed as second or

successive Brown’s second federal habeas petition, and this

court affirmed the dismissal.

After the district court dismissed Brown’s second habeas

petition, the California legislature amended the law relating

to accomplice liability for murder, and added section

1170.95 to the California Penal Code, which provides a

procedure for a defendant convicted of felony murder or

murder under a “natural and probable consequences” theory

to obtain retroactive relief. Shortly thereafter, Brown filed

an application for resentencing in state court pursuant to

section 1170.95, which the state denied.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. ATCHLEY 3

Brown’s third federal habeas petition argued that he was

entitled to resentencing under section 1170.95, and that his

continued incarceration under the original sentence violated

his due process rights. His fourth federal habeas petition

alleged, among other things, that he was denied effective

assistance of counsel in applying to the state court for

resentencing pursuant to section 1170.95 and that the state

court’s denial of his application violated his equal protection

rights.

The panel held that Brown’s due process, ineffective

assistance of counsel, and equal protection claims did not

become ripe until his application for resentencing was

denied, which occurred well after the district court denied

his first and dismissed his second habeas petitions. Because

Brown could not have raised these claims in his first or

second petition, his failure to do so is not an abuse of the

writ. Applying Panetti v. Quarterman, 551 U.S. 930 (2007),

the panel concluded that the third and fourth habeas petitions

were, accordingly, not second or successive under

§ 2244(b).

The panel did not reach the parties’ argument that, under

Magwood v. Patterson, 561 U.S. 320 (2010), the state

court’s denial of Brown’s application for resentencing under

section 1170.95 constituted a new judgment for purposes of

§ 2254.

Concurring, Judge Ikuta wrote that the panel does the

parties a disservice by declining to address their primary

argument in this case. She would hold that the state court’s

denial of Brown’s application for resentencing under section

1170.95 did not constitute a new judgment for purposes of

§ 2254.

4 BROWN V. ATCHLEY

COUNSEL

Yevgeniy M. Parkman (argued), Assistant Federal Public

Defender; Jodi Linker, Federal Public Defender; Federal

Public Defender’s Office; San Francisco, California; for

Petitioner-Appellant.

Gregory A. Ott (argued), Deputy Attorney General; Peggy

S. Ruffra, Supervising Deputy Attorney General; Jeffrey M.

Laurence, Senior Assistant Attorney General; Rob Bonta,

Attorney General of California; Office of the California

Attorney General; San Francisco, California; for

Respondent-Appellee.

OPINION

IKUTA, Circuit Judge:

Gregory Brown, a prisoner serving a sentence of 56 years

to life, brought two federal habeas petitions challenging the

state court’s denial of his application for resentencing under

section 1170.95 of the California Penal Code. 1 The district

court dismissed his petitions as second or successive under

28 U.S.C. § 2244(b). Under the circumstances of this case,

Brown’s petitions raise claims that “were not ripe for

adjudication” when he brought his prior habeas petitions,

and so should not be dismissed as second or successive.

1

Section 1170.95 was renumbered as section 1172.6, effective June 30,

2022. See Stats. 2022, ch. 58, § 10. Because the events of this case took

place before June 30, 2022, we refer to section 1170.95.

BROWN V. ATCHLEY 5

United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir.

2011) (per curiam). Therefore, we reverse and remand.

I

A

We begin with the applicable legal framework. A federal

court “shall entertain an application for writ of habeas corpus

in behalf of a person in custody pursuant to the judgment of

a State court” if the petitioner “is in custody in violation of

the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a).

Because Brown filed his federal habeas petitions after

1996, the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) governs this case. See Lindh v. Murphy, 521

U.S. 320, 336 (1997). Under AEDPA, courts are limited in

their ability to consider claims brought in successive habeas

petitions. See 28 U.S.C. § 2244(b). 2 “A claim presented in

a second or successive habeas corpus application under

section 2254 that was not presented in a prior application

shall be dismissed unless” a statutory exception applies. 3 Id.

2

Consistent with the Supreme Court’s practice, “[a]lthough 28 U.S.C.

§ 2244(b) refers to a habeas ‘application,’ we use the word ‘petition’

interchangeably with the word ‘application.’” Magwood v. Patterson,

561 U.S. 320, 324 n.1 (2010).

3

These statutory exceptions are:

(A) the applicant shows that the claim relies on a new rule

of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

6 BROWN V. ATCHLEY

§ 2244(b)(2). In addition, § 2244(b)(3)(A) provides that

“[b]efore a second or successive application permitted by

this section is filed in the district court, the applicant shall

move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” Id.

“Although Congress did not define the phrase ‘second or

successive,’ as used to modify ‘habeas corpus application

under section 2254,’ §§ 2244(b)(1)–(2), it is well settled that

the phrase does not simply ‘refe[r] to all § 2254 applications

filed second or successively in time.’” Magwood, 561 U.S.

at 331–32 (quoting Panetti v. Quarterman, 551 U.S. 930,

944 (2007) (alteration in original)). Rather, “[t]he phrase

‘second or successive petition’ is a term of art,” Slack v.

McDaniel, 529 U.S. 473, 486 (2000), that follows from the

history of the writ.

Historically, “[a]t common law, res judicata did not

attach to a court’s denial of habeas relief,” and courts

allowed “endless successive petitions” after a court’s initial

denial of habeas relief. McCleskey v. Zant, 499 U.S. 467,

479 (1991). In 1924, after courts began allowing appellate

review of denied habeas claims, the Supreme Court clarified

that courts had discretion to dismiss a petition based on a

prior denial of the same claim in an earlier petition. See id.

at 480–82 (discussing Salinger v. Loisel, 265 U.S. 223

(1924) and Wong Doo v. United States, 265 U.S. 239

(1924)). Courts continued to expand upon the rule that

(ii) the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

BROWN V. ATCHLEY 7

repetitive petitions could constitute an abuse of the writ and

a ground for dismissal through judicial decision-making.

See generally McCleskey, 499 U.S. at 479–89 (detailing the

origins and development of the common law abuse of the

writ doctrine). Accordingly, the Supreme Court has held

that, under certain circumstances, the failure to bring a claim

in a prior petition (if the claim had been available at the time)

constituted an abuse of the writ. See, e.g., Delo v. Stokes,

495 U.S. 320, 321–22 (1990) (per curiam) (holding that the

petitioner’s fourth habeas petition was an abuse of the writ

where two claims “could have been raised in his first petition

for federal habeas corpus” and that “[t]he equal protection

principles asserted by [petitioner] are not novel and could

have been developed long before this last minute application

for stay of execution.”); see also Wong Doo, 265 U.S. at 241

(concluding that the petitioner’s second habeas petition was

an abuse of the writ where the petitioner had a “full

opportunity to offer proof” of the same claim in his first

habeas application).

AEDPA incorporated some of these judge-made

principles, Slack, 529 U.S. at 483, for dismissing petitions

that were claimed to be an abuse of the writ in § 2244(b)(2).

This section indicates that a petition could escape dismissal

as second or successive where “the factual predicate for the

claim could not have been discovered previously through the

exercise of due diligence” (and “the facts underlying the

claim, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty

of the underlying offense”), 28 U.S.C. § 2244(b)(2). This

language echoed—and toughened—the common law view

that a petitioner had to bring any available claims at the

8 BROWN V. ATCHLEY

earliest opportunity. See United States v. Lopez, 577 F.3d

1053, 1060–61 (9th Cir. 2009) (“Congress enacted AEDPA,

codifying the judicially established principles reflected in

the abuse-of-the-writ doctrine and further restricting the

availability of relief to habeas petitioners.”)

Following the enactment of AEDPA, the Supreme Court

has continued to use “pre-AEDPA law to interpret AEDPA’s

provision governing ‘second or successive habeas

applications.’” Slack, 529 U.S. at 486 (quoting Stewart v.

Martinez-Villareal, 523 U.S. 637, 641–42 (1998)); see also

Buenrostro, 638 F.3d at 724 (stating that in Magwood, 561

U.S. at 332, “seven justices agreed that second or successive

is a habeas ‘term of art’ that incorporates the pre-AEDPA

abuse-of-the-writ doctrine”).

B

Notwithstanding the prohibition of second or successive

petitions in most cases, not every petition filed after an initial

petition has been adjudicated is considered second or

successive. The Supreme Court has identified two situations

where a second-in-time petition is not analyzed under the

rules governing second or successive petitions.

First, in Magwood, the Supreme Court explained that the

limitations imposed by § 2244(b) applied only to habeas

petitions that relate to a specific “judgment of a State court”

under § 2254(b)(1). 561 U.S. at 332 (emphasis omitted).

Because “the phrase ‘second or successive’ must be

interpreted with respect to the judgment challenged,” id. at

333, a habeas petition is second or successive only if it

challenges the same judgment as the prior petition, see id. at

339. Magwood applied this rule and concluded that because

the petitioner’s new sentence, imposed after a resentencing

proceeding, qualified as a new judgment, his “first

BROWN V. ATCHLEY 9

application challenging that new judgment” was not “second

or successive.” Id. at 331.

Second, even if a petitioner’s second petition is

challenging the same judgment as an earlier petition, it is not

second or successive if it raises a claim “brought in an

application filed when the claim is first ripe.” Panetti, 551

U.S. at 947. The Court has clarified that a petitioner does

not run afoul of the abuse of the writ doctrine by raising a

new claim in a successive petition that could not have been

raised in a prior petition. Martinez-Villareal, 523 U.S. at

645; McCleskey, 499 U.S. at 497.

The Supreme Court applied these abuse-of-the-writ

principles, post-AEDPA, for the first time in Panetti. There,

the petitioner, a capital defendant, raised a mental

incompetence claim about his ability to stand trial in his first

federal habeas petition, which was denied. 551 U.S. at 937.

After the state trial court set the execution date, the petitioner

filed a second habeas petition based on his claim that he was

incompetent to be executed, pursuant to Ford v. Wainwright,

477 U.S. 399 (1986). Id. at 938–39. The district court stayed

the petitioner’s execution to allow him to exhaust this claim

in state court. Id. The state court rejected this claim after

various evidentiary proceedings. Id. at 939–40. The

petitioner then returned to federal district court raising his

now exhausted mental competence claim. Id. at 941. The

court denied the petitioner’s claim on the merits, and the

appellate court affirmed. Id. at 941–42.

The Supreme Court first considered whether it had

jurisdiction to consider the petitioner’s appeal. Id. at 942.

Although the second petition was second or successive on its

face because it challenged the same judgment as the first

petition, the Court held that “Congress did not intend the

10 BROWN V. ATCHLEY

provisions of AEDPA . . . to govern a filing in the unusual

posture presented here: a § 2254 application raising a Ford-

based incompetency claim filed as soon as that claim is

ripe.” Id. at 945. 4 Further, the Court held that petitioner’s

actions did not constitute an abuse of the writ, because

“claims of incompetency to be executed remain unripe at

early stages of the proceedings.” Id. at 947. Therefore, the

Supreme Court held that “[t]he statutory bar on second or

successive applications does not apply to a Ford claim

brought in an application filed when the claim is first ripe.”

Id. The Court therefore proceeded to the merits of the claim.

After Panetti, we have applied the judge-made rule that

a petition filed when a claim first becomes ripe is not second

or successive in a range of cases beyond the context of Ford

claims. See Buenrostro, 638 F.3d at 725. In general,

“[p]risoners may file second-in-time petitions based on

events that do not occur until a first petition is concluded,”

and such petitions are not second or successive, id., because

a claim does not become ripe until the facts that give rise to

the constitutional claim first arise. To illustrate this

principle, we stated that a “prisoner whose conviction and

sentence were tested long ago may still file petitions relating

to denial of parole, revocation of a suspended sentence, and

the like because such claims were not ripe for adjudication

at the conclusion of the prisoner’s first federal habeas

proceeding.” Id. (collecting cases). Our sister circuits have

arrived at the same conclusion, holding that claims that could

not have been raised in a prisoner’s earlier habeas petition

because the alleged violations giving rise to the claims had

4

The petitioner’s Ford claim became ripe when his execution was

imminent. See Martinez-Villareal, 523 U.S. at 644–45.

BROWN V. ATCHLEY 11

not yet occurred do not implicate the gatekeeping

requirements of § 2244(b). 5

II

A

We now turn to the facts of this case. 6 In January 1995,

Robin Williams was at a home shared by Brown, Wanda

Fain, and Joseph Diggs, when the police arrived in response

to reports of a domestic disturbance nearby. Muniz, 889 F.3d

at 664. They found Brown holding drugs and a firearm in

the doorway. Id. The police arrested Brown and Williams.

Id. Williams told the police that she had seen Brown with

both the drugs and the firearm. Id. About ten days later,

while Brown was awaiting trial on drug charges stemming

5

The following cases from five of our sister circuits held that a prisoner’s

petition was not second or successive because it raised a claim that had

not been ripe at the time of the initial petition. See United States v.

Orozco–Ramirez, 211 F.3d 862, 869 (5th Cir. 2000) (holding that a claim

relating to counsel’s ineffective assistance on an out-of-time appeal

could not have been raised in the first appeal); In re Jones, 652 F.3d 603,

605 (6th Cir. 2010) (order) (holding that an ex post facto claim resulting

from amendments to state parole law was unripe until the amendments

were enacted); United States v. Obeid, 707 F.3d 898, 903 (7th Cir. 2013)

(holding that an equal protection challenge was unripe until the

government breached its promise to treat the petitioner and a co-

conspirator equally with respect to a motion for a sentence reduction);

Morgan v. Javois, 744 F.3d 535, 538 (8th Cir. 2013) (holding that “a

challenge to a state-court decision regarding the legality of an insanity

acquittee’s continued confinement is unripe until that decision is

rendered”); In re Weathersby, 717 F.3d 1108, 1110–11 (10th Cir. 2013)

(per curiam) (holding that a petitioner’s habeas claim to correct a

sentencing enhancement based on a state conviction was not ripe until

the state vacated that conviction).

6

Because we have already set out the facts in detail in Brown v. Muniz,

889 F.3d 661 (9th Cir. 2018), we recite them only briefly here.

12 BROWN V. ATCHLEY

from this arrest, Brown and Fain threatened Williams in an

effort to persuade her not to testify against Brown. Id. On

the day of the attempted murder, Williams arrived at Brown

and Fain’s residence and saw them talking (Diggs was also

there). Id. Williams left, but returned five minutes later to

find that Brown had left the residence. Id. Fain asked

Williams to go with her to a house of prostitution to earn

money for drugs. Id. Williams agreed, and left with Fain

and Diggs. Id. Williams, Fain, and Diggs offered divergent

accounts of what occurred after they left the residence.

Williams testified that while she and Fain were walking

down the street, laughing and talking, with Diggs following

behind, Williams was shot in the back of the head by

someone in a car following behind her. Id. at 665. Brown,

Fain, and Diggs were prosecuted for conspiracy to commit

murder, id. at 663, pursuant to sections 182 (defining

conspiracy) and 187 (defining murder) of the California

Penal Code, as well as for attempted murder of Williams, id.,

pursuant to sections 187, 189 (defining the degrees of

murder), and 664 (defining attempt) of the California Penal

Code. Under California law at the time of the shooting,

section 187 defined murder as the “unlawful killing of a

human being . . . with malice aforethought.” The mens rea

of “malice” was defined in section 188. 7

7

At the time, section 188(a) of the California Penal Code provided:

(a) For purposes of Section 187, malice may be express or

implied.

(1) Malice is express when there is manifested a deliberate

intention to unlawfully take away the life of a fellow

creature.

BROWN V. ATCHLEY 13

Brown was convicted of one count of conspiracy to

commit murder and one count of attempted murder on an

aiding and abetting theory, and sentenced to 56 years to life

in state prison. Muniz, 889 F.3d at 663. Fain and Diggs were

also convicted. Id. The California Court of Appeal affirmed

Brown’s conviction and sentence in 1998. On the charge of

aiding and abetting attempted murder, the state court

determined that the jury “could have reasonably concluded

that Brown at least intended to aid and abet Fain and Diggs

in the attempted murder, even if he did not personally intend

to kill Williams.” Id. at 665. The California Supreme Court

denied review. Id.

B

In 1998, after the California Court of Appeal affirmed

his convictions, Brown filed his first petition for habeas

corpus in federal district court. Id. The court denied the writ

on the merits and declined to grant a certificate of

appealability (COA). Id. We also declined to grant a COA,

thus ending Brown’s first habeas effort in 1998. 8 Id. In

2014, Brown filed a second habeas petition in federal district

court, alleging that previously undisclosed information

contained in three police officers’ personnel files was subject

to disclosure under Brady v. Maryland, 373 U.S. 83, 87

(1963). Id. at 665–66. On February 23, 2016, the district

court dismissed Brown’s petition, holding that it was a

second or successive petition requiring pre-filing

(2) Malice is implied when no considerable provocation

appears, or when the circumstances attending the killing

show an abandoned and malignant heart.

Cal. Penal Code § 188(a).

8

An appeal may not be taken from the final order in a habeas proceeding

unless the petitioner first obtains a COA. See 28 U.S.C. § 2253(c).

14 BROWN V. ATCHLEY

authorization from the Ninth Circuit under 28 U.S.C.

§ 2244(b)(3)(A). Brown v. Asuncion, 2016 WL 705987, at

*5 (N.D. Cal. Feb. 23, 2016). We affirmed the dismissal on

May 8, 2018. Muniz, 889 F.3d at 663.

C

After the district court dismissed Brown’s second habeas

petition, the California legislature amended the law relating

to accomplice liability for murder, pursuant to Senate Bill

1437 (effective January 1, 2019). People v. Bucio, 48 Cal.

App. 5th 300, 307 (2020). The legislature found that it was

“necessary to amend the felony murder rule and the natural

and probable consequences doctrine as it relates to murder,

to ensure that murder liability is not imposed on a person

who is not the actual killer, did not act with the intent to kill,

or was not a major participant in the underlying felony who

acted with reckless indifference to human life.” People v.

Alaybue, 51 Cal. App. 5th 207, 212–13 (2020) (quoting

Stats. 2018, ch. 1015, § 1). 9

9

The two doctrines amended by the California legislature—the felony-

murder rule and the natural and probable consequences doctrine—are

defined in California law as follows. First,

[t]he felony-murder rule makes a killing while committing

certain felonies murder without the necessity of further

examining the defendant’s mental state. . . First degree

felony murder is a killing during the course of a felony

specified in section 189, such as rape, burglary, or robbery.

Second degree felony murder is ‘an unlawful killing in the

course of the commission of a felony that is inherently

dangerous to human life but is not included among the

felonies enumerated in section 189 . . . .’

People v. Chun, 45 Cal. 4th 1172, 1182 (2009) (citation omitted).

BROWN V. ATCHLEY 15

Senate Bill 1437 made three changes to implement these

legislative findings. First, Senate Bill 1437 changed the

definition of “malice” in section 188 by adding a new

provision stating that “[m]alice can no longer ‘be imputed to

a person based solely on his or her participation in a crime.’”

Bucio, 48 Cal. App. 5th at 307. (alteration omitted).

Second, the bill changed the felony-murder rule by

adding section 189(e), which provides that a defendant

cannot be held liable for murder that occurs in the course of

a felony unless the defendant was the actual killer (or “a

major participant” in the conduct leading to murder) and had

the requisite mens rea.10 Id. As the legislature “stated in the

uncodified statutory findings,” “‘[a] person’s culpability for

Second, under the natural and probable consequences doctrine, a

defendant who aids and abets another in the commission of a crime is

guilty not only of that crime, but also of any other crime that the other

person commits if it is a natural and probable consequence of the crime

originally aided and abetted. See People v. Prettyman, 14 Cal. 4th 248,

254 (1996). For example, “if a person aids and abets only an intended

assault, but a murder results, that person may be guilty of that murder,

even if unintended, if it is a natural and probable consequence of the

intended assault.” People v. McCoy, 25 Cal. 4th 1111, 1117 (2001).

10

Section 189(e) of the California Penal Code provides:

A participant in the perpetration or attempted perpetration

of a felony listed in subdivision (a) in which a death occurs

is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent

to kill, aided, abetted, counseled, commanded, induced,

solicited, requested, or assisted the actual killer in the

commission of murder in the first degree.

(3) The person was a major participant in the underlying

felony and acted with reckless indifference to human life,

as described in subdivision (d) of Section 190.2.

16 BROWN V. ATCHLEY

murder must be premised upon that person’s own actions

and subjective mens rea.’” Alaybue, 51 Cal. App. 5th at 213

(citing Stats. 2018, ch. 1015, § 1.)

Third, Senate Bill 1437 added section 1170.95, which

provides a procedure for a defendant convicted of felony

murder or murder under a “natural and probable

consequences” theory to obtain retroactive relief. Id. (citing

Cal. Penal Code § 1170.95(a)).11 To seek relief under

section 1170.95, a petitioner must make a prima facie case

that the petitioner could not be convicted of first or second

degree murder due to the changes in section 188 or 189.12

The sentencing court must then review the application and

determine whether the petitioner “has made a prima facie

case for relief.” Cal. Penal Code § 1170.95(c). If the

petitioner has made a prima facie case, then the court must

hold an evidentiary hearing regarding whether the petitioner

is entitled to relief. Id. § 1170.95(d)(1). At the hearing

11

Section 1170.95 did not address the crimes for which Brown was

convicted: attempted murder and conspiracy to commit murder.

12

Specifically, the petitioner had to file a petition in the sentencing court

stating that:

(1) A complaint, information, or indictment was filed

against the petitioner that allowed the prosecution to

proceed under a theory of felony murder or murder under

the natural and probable consequences doctrine[;]

(2) The petitioner was convicted of first degree or second

degree murder following a trial or accepted a plea offer in

lieu of a trial at which the petitioner could be convicted for

first degree or second degree murder[;] [and]

(3) The petitioner could not be convicted of first or second

degree murder because of changes to Section 188 or 189

made effective January 1, 2019.

Cal. Penal Code § 1170.95(a)(1)–(3).

BROWN V. ATCHLEY 17

stage, “the burden of proof [is] on the prosecution to prove,

beyond a reasonable doubt,” that the petitioner is “guilty of

murder or attempted murder under California law as

amended by the changes to Section 188 or 189.” Id.

§ 1170.95(d)(3). If the prosecution fails to carry its burden,

“the prior conviction, and any allegations and enhancements

attached to the conviction, shall be vacated and the petitioner

shall be resentenced on the remaining charges.” Id.

D

In February 2019, shortly after the effective date of

Senate Bill 1437, Brown filed an application for

resentencing in state court pursuant to section 1170.95.

Brown’s theory was that because he had not been the shooter

or a major participant in the killing, and did not have the

requisite mens rea, his conviction for conspiracy to commit

murder had to be vacated.13 The state court denied his

application. It reasoned that section 1170.95 did not apply

to conspiracy to commit murder, and “it does not look like

the felony murder rule was involved or [the] natural probable

consequences rule was involved in Mr. Brown’s

conviction.” Therefore, the state court found that Brown had

failed to make a prima facie showing of eligibility for relief.

The California Court of Appeal affirmed the trial court’s

judgment in November 2020, and the California Supreme

Court affirmed the state court’s denial of Brown’s

application for resentencing in January 2021.

13

The state trial court considered only Brown’s conviction for

conspiracy to commit murder and the record does not indicate whether

Brown raised an argument regarding his conviction for attempted murder

to the highest state court.

18 BROWN V. ATCHLEY

E

In May 2020, while Brown’s appeal of this denial to the

California Court of Appeal was still pending, Brown filed

his third federal habeas petition [Case No. 20-16290]. In this

petition, he argued that he was entitled to resentencing under

section 1170.95 for conspiracy to commit murder and

attempted murder, and that his continued incarceration under

the original sentence violated his due process rights. The

district court dismissed the petition as a second or successive

petition because Brown did not have “an order authorizing

the district court to consider the application” as required by

28 U.S.C. § 2244(b)(3)(A). Brown then applied for a COA,

claiming that the district court erred in ruling that his petition

was second or successive because his petition was based on

the change in law enacted by Senate Bill 1437. The district

court did not act on the COA, and Brown filed a notice of

appeal in June 2020. In July 2020, we remanded the case to

the district court for the limited purpose of granting or

denying the COA. The district court denied the COA,

holding that jurists of reason would agree that the petition

was second or successive, and again noting that Brown had

not obtained permission to bring such a claim.

Brown filed his fourth federal habeas petition in April

2021 [Case No. 21-15922] in which he alleged, among other

things, that he was denied effective assistance of counsel in

applying to the state court for resentencing pursuant to

section 1170.95. He also argued that the state court’s denial

of his application violated his equal protection rights because

he was treated differently from other prisoners who had been

convicted of first-degree murder under the natural and

probable consequences doctrine, and were then resentenced

pursuant to the procedure in section 1170.95. In May 2021,

the district court dismissed this petition as second or

BROWN V. ATCHLEY 19

successive because it was “attacking the same conviction

and sentence as [Brown’s] prior federal habeas petition.”

Later the same month, Brown filed a notice of appeal and an

application for a COA. In August 2021, the district court

granted a COA because Brown was not challenging his

conviction and sentence, but was instead claiming his lawyer

rendered ineffective assistance in connection with the

application for a resentencing hearing. At the same time, the

district court overruled its own earlier order denying a COA

as to the May 2020 petition, and instead granted a COA on

the ground that Brown was not attacking his prior

conviction, but rather challenging the denial of his motion

for resentencing.

We granted Brown’s unopposed motion to consolidate

his appeals of the two federal habeas cases related to his

resentencing denial.

We have jurisdiction pursuant to 28 U.S.C. § 2253.

Under AEDPA, we review de novo the district court’s

decision that a petition is second or successive. Lopez, 577

F.3d at 1059; see also Thompson v. Calderon, 151 F.3d 918,

921 (9th Cir. 1998) (en banc). The only question before us

is whether the district court erred in dismissing Brown’s

three constitutional claims in his May 2020 and April 2021

habeas petitions as second or successive pursuant to 28

U.S.C. § 2244(b).

III

We begin by considering the exception established in

Panetti: that a petition is not second or successive when it

raises claims that were not ripe at the time a prior petition

was filed.

20 BROWN V. ATCHLEY

Brown raised three constitutional claims to the district

court: a violation of his due process rights, a violation of his

equal protection rights, and ineffective assistance of

counsel.14 Each of these claims related to his application for

resentencing under section 1170.95 and the denial of his

application on March 8, 2019. We consider whether the

events that gave rise to Brown’s constitutional claims

occurred before either his first or second petitions were

denied or dismissed (in 1998 and 2016, respectively). If so,

Brown’s claims could have been brought in either petition

and—consistent with pre-AEDPA abuse of the writ doctrine

requiring claims to be brought at the earliest opportunity—

his petitions are “second or successive.” Panetti, 551 U.S.

at 947; see also Buenrostro, 638 F.3d at 725–26 (noting

“Congress’ clear intent to prohibit us from certifying second-

in-time claims, ripe at the time of a prisoner’s [habeas]

proceeding but not discovered until afterward,” unless a

statutory exception applies).

We conclude that Brown’s due process, ineffective

assistance of counsel, and equal protection claims did not

become ripe until March 2019, when his application for

resentencing was denied, which occurred well after the

district court denied his first and dismissed his second

habeas petitions. In his third petition, Brown alleged a due

process violation resulting from his continued confinement

after the denial of his application for resentencing. Because

14

The record does not indicate whether Brown raised his due process,

equal protection, and ineffective assistance of counsel claims in his third

and fourth federal habeas petitions to the highest state court, or instead

challenged only state law errors. It is well established that “‘federal

habeas corpus relief does not lie for errors of state law.’” Swarthout v.

Cooke, 562 U.S. 216, 219 (2011) (per curiam) (quoting Estelle v.

McGuire, 502 U.S. 62, 67 (1991)).

BROWN V. ATCHLEY 21

his application for resentencing was denied on March 8,

2019, his claim did not ripen until after that date, when he

remained confined. See Morgan, 744 F.3d at 538. In his

fourth petition, Brown alleged that his attorney rendered

ineffective assistance by failing to prepare properly for the

hearing on his application for resentencing.15 Because

Brown must show both deficient performance and prejudice

in order to raise an ineffective assistance of counsel claim,

his claim did not arise until after his application was denied

on March 8, 2019. Finally, Brown’s equal protection claim

(also in his fourth habeas petition) was based on his claim

that in denying his resentencing application, the state court

treated him differently from other prisoners who were

resentenced. Again, the facts underlying this claim did not

arise until his resentencing application was denied in March

2019. See Obeid, 707 F.3d at 903.

Because Brown’s due process, equal protection, and

ineffective assistance of counsel claims were not ripe when

his first federal habeas petition was denied by the district

court or when his second habeas petition was dismissed by

the district court, Brown could not have raised these claims

in his first or second petition, so his failure to do so is not an

abuse of the writ. Therefore, the third and fourth habeas

petitions were not second or successive under 28 U.S.C.

15

We leave for the district court to determine on remand, if necessary,

whether the fourth petition filed on May 2021 should be construed as an

amendment to the third petition filed on April 2020. See Woods v. Carey,

525 F.3d 886, 889 (9th Cir. 2008). For purposes of this opinion, we treat

the two petitions as if they were a single petition.

22 BROWN V. ATCHLEY

§ 2244(b).16 See Panetti, 551 U.S. at 947; Buenrostro, 638

F.3d at 725.

Because Brown’s third and fourth petitions were not

second or successive petitions, Brown could bring them

without qualifying for an exception under § 2244(b)(2)(B),

and without obtaining our permission to authorize the district

court to consider them, 28 U.S.C. § 2244(b)(3)(A).

Accordingly, we conclude that the district court erred by

dismissing the petitions for failing to follow the

requirements applicable to second or successive petitions.17

Because we decide on this ground, we do not reach the

parties’ argument that, under Magwood, the state court’s

denial of Brown’s application for resentencing under section

1170.95 constituted a new judgment for purposes of § 2254.

REVERSED AND REMANDED.

16

Although Brown filed his third habeas petition in May 2020 (over a

year after his claims ripened) and his fourth habeas petition in April 2021

(over two years after his claims ripened), the government does not argue

that Brown abused the writ by not bringing the claims “as soon as” they

were “first ripe,” Panetti, 551 U.S. at 945, 947, so any such argument is

forfeited, see Williams v. United States, 927 F.3d 427, 439 (6th Cir.

2019).

17

The government has not forfeited the argument that Brown failed to

exhaust his challenges to the conviction for attempted murder or his

constitutional claims. See 28 U.S.C. § 2254(b)(3) (“A State shall not be

deemed to have waived the exhaustion requirement or be estopped from

reliance upon the requirement unless the State, through counsel,

expressly waives the requirement.”). On remand, if the district court

determines that Brown’s claims are not barred by AEDPA’s statute of

limitations, 28 U.S.C. § 2244(d)(1)(D), the district court may consider

whether it may stay the habeas proceedings to allow Brown to exhaust

any unexhausted claims, see Rhines v. Weber, 544 U.S. 269, 276–77

(2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (applying

Rhines to a petition that raises only exhausted claims).

BROWN V. ATCHLEY 23

IKUTA, Circuit Judge, concurring:

We hold today that Brown’s petition is not second or

successive because he raises a claim that was not ripe at the

time his prior petitions were filed. Nevertheless, we do the

parties a disservice by declining to address their primary

argument in this case.

In his opening brief on appeal, Brown relied on an

argument based on our decision in Clayton v. Biter, 868 F.3d

840 (9th Cir. 2017). As explained in more detail below,

Clayton held that the denial of a motion for resentencing

under section 1170.126 of the California Penal Code

constituted a new judgment, and that a habeas petition

challenging that new judgment was not second or successive

for purposes of 28 U.S.C. § 2244(b). 1 Id. at 843. Brown

argued that the same reasoning applied to the denial of his

motion for resentencing under section 1170.95 of the

California Penal Code. Underlining the importance of this

argument, the government conceded that under the reasoning

of Clayton, the state trial court’s order denying Brown’s

petition for resentencing constituted a new, appealable

judgment. Nor are the parties alone in relying on Clayton in

this context. District courts in our circuit have consistently

relied on Clayton to conclude that the denial of resentencing

under section 1170.95 is a new judgment, such that

challenges to such a denial are not second or successive. 2

1

As noted in the majority decision, the Supreme Court has made clear

that a habeas petition is second or successive only if it challenges the

same judgment as the prior petition, not a new judgment. See Magwood

v. Patterson, 561 U.S. 320, 331 (2010).

2

See, e.g., Allen v. Madden, 2021 WL 4731342, at *3 (C.D. Cal. Apr.

12, 2021), report and recommendation adopted, 2021 WL 4732581

(C.D. Cal. May 5, 2021); Vasquez v. Allison, 2021 WL 1164470, at *3

24 BROWN V. ATCHLEY

Moreover, multiple petitioners whose section 1170.95

applications for resentencing were denied in state court have

pending motions seeking our permission to file a second or

successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A). 3

There is no question that we have authority to consider

whether the denial of resentencing under section 1170.95 is

a new judgment: “[p]anels often confront cases raising

multiple issues that could be dispositive, yet they find it

appropriate to resolve several, in order to avoid repetition of

errors on remand or provide guidance for future cases.”

United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001)

(en banc) (per curiam) (Kozinski, J., concurring); see also

United States v. Vallejo, 237 F.3d 1008, 1026 n.9 (9th Cir.

2001) (recognizing four “independent grounds for reversal”

and remanding for a new trial). Indeed, when we give “clear

direction to the district court on how to proceed” with respect

to an issue raised by the parties, it is “binding precedent,

even if characterized as an alternative holding.” Operating

Eng’rs Pension Tr. v. Charles Minor Equip. Rental, Inc., 766

F.2d 1301, 1304 (9th Cir.), amended, 778 F.2d 538 (9th Cir.

1985). For the reasons explained below, we should hold that

the state court’s denial of Brown’s application for

(C.D. Cal. Mar. 24, 2021); Young v. Cueva, 2020 WL 8455474, at *2

(C.D. Cal. Oct. 27, 2020); Kirkpatrick v. Foss, 2019 WL 4859062, at *1

(C.D. Cal. Oct. 2, 2019); Esparza v. Lizarraga, 2019 WL 6749449, at *5

(C.D. Cal. Aug. 7, 2019), report and recommendation adopted, 2019 WL

5589040 (C.D. Cal. Oct. 28, 2019).

3

See Prado v. Cueva, Case No. 21-71427; Torlucci v. Allen, Case No.

22-155; Fegan v. Matterson, Case No. 22-722; Cole v. Cates, Case No.

22-1119; George v. Cisneros, Case No. 22-1496; Khan v. Broomfield,

Case No. 22-1497; Cervantes v. Cisneros, Case No. 22-1600; Millender

v. Cates; Case No. 22-1755.

BROWN V. ATCHLEY 25

resentencing under section 1170.95 did not constitute a new

judgment for purposes of § 2254.

I

In considering the question whether Brown’s petitions

are challenging a new judgment, we must apply California

law because “a state court’s interpretation of state law . . .

binds a federal court sitting in habeas corpus.” Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (per curiam). We “look to

state law to determine what constitutes a new or intervening

judgment.” Clayton, 868 F.3d at 844.

California courts have determined that when a prisoner

submits an application to a state trial court claiming prima

facie eligibility for relief under section 1170.95, the trial

court’s initial eligibility determination regarding

resentencing is only the first step in a multi-step process that

may result in a resentencing. See People v. Hampton, 74

Cal. App. 5th 1092, 1101 (2022). As such, the first step,

without more, does not change a prisoner’s sentence and is

therefore not a new judgment. Id. In Hampton, a state trial

court held that a prisoner convicted of murder had made a

prima facie case that he was entitled to relief under section

1170.95. Id. at 1098. After an evidentiary hearing, the court

held that the government failed to carry its burden of proving

the prisoner was ineligible for relief, and therefore issued an

order granting the application under section 1170.95. Id. 4

When the government appealed the order granting the

application, the prisoner argued that the government could

not appeal. Id. at 1100. The prisoner reasoned that the “right

to appeal is statutory, and appeals that do not fall within the

4

The state trial court subsequently vacated the murder conviction and

resentenced the prisoner. Id.

26 BROWN V. ATCHLEY

exact statutory language” of section 1238 of the California

Penal Code “are prohibited.” Id. (citing People v. Salgado,

88 Cal. App. 4th 5, 11 (2001)). Because section 1238 did

not allow an appeal from a final judgment in a criminal case,

id. at 1101–02, the prisoner argued that the government

could not appeal the order granting resentencing, which

constituted a new judgment, id. at 1101.

The California Court of Appeal rejected this argument.

The court first noted that section 1238 allows the

government to appeal “[a]n order made after judgment,

affecting the substantial rights of the people.” Id. at 1101.

The court explained that the government was challenging the

trial court’s conclusion that the prisoner was entitled to

relief. Id. at 1102. This was a preliminary decision “that

then required the court to vacate the murder conviction and

resentence [the] defendant,” not a new sentence imposed in

a resentencing hearing (which would be a final judgment).

Id.; see also People v. McKenzie, 25 Cal. App. 5th 1207,

1213 (2018), aff’d, 9 Cal. 5th 40 (2020) (“In a criminal case,

the sentence is the judgment.”). Because “the trial court’s

order finding defendant entitled to relief under section

1170.95” was merely a threshold ruling, it was an appealable

post-judgment order, not a new judgment. Hampton, 74 Cal.

App. 5th at 1102.

II

The same reasoning applies here. Brown’s third and

fourth federal habeas petitions are challenging an order

denying his eligibility for relief under section 1170.95.

According to Hampton, a prima facie determination

regarding eligibility for resentencing under section 1170.95

does not constitute a new judgment. 74 Cal. App. 5th at

1101. Therefore, Brown’s petitions are not challenging a

BROWN V. ATCHLEY 27

“new judgment” as in Magwood, but are instead challenging

a post-judgment order and asking for resentencing, which

would entail vacatur of his original sentence. The rule that

a petition challenging a new judgment is not second or

successive is therefore inapplicable. See Magwood, 561

U.S. at 332–33.

Brown argues that, notwithstanding Hampton, our

decision in Clayton compels the conclusion that the denial

of a petition for resentencing relief should be viewed as a

new judgment. This argument fails. Clayton involved the

procedure for implementing California’s Three Strikes

Reform Act of 2012 (which requires that a third strike

generally has to be a serious or violent felony). See 868 F.3d

at 842. Section 1170.126 of the California Penal Code

provides a procedure for prisoners sentenced under the prior

Three Strikes law to apply for resentencing. Id.

Recognizing that under California law, a prisoner may take

an appeal from any post-judgment order “affecting the

substantial rights of the party,” id. at 844 (citing Cal. Penal

Code § 1237), Clayton held that “a denial of a resentencing

petition under section 1170.126” qualifies as “an appealable

‘postjudgment order affecting the substantial rights of the

party, ’” id. (quoting Teal v. Superior Ct., 60 Cal. 4th 595,

598 (2014)). This is consistent with Hampton. See 74 Cal.

App. 5th at 1102. But instead of stopping there, Clayton

added, without explanation, that such a denial was not only

an appealable post-judgment order, but also constituted a

new judgment. See 868 F.3d at 844 (holding that because

“under California law, a resentencing petition does not

challenge the underlying conviction or sentence” but seeks a

resentencing proceeding, “[t]he denial of [the petitioner’s]

section 1170.126 petition therefore constitutes a new

judgment.”). Therefore, Clayton concluded that a state

28 BROWN V. ATCHLEY

prisoner’s second-in-time federal habeas petition

challenging an order denying the prisoner’s application for

resentencing pursuant to section 1170.126 was not second or

successive, because it challenged a new judgment. Id. at

846.

In reaching this conclusion, Clayton did not have the

benefit of Hampton, which made clear that an order

addressing prima facie eligibility for relief from a sentence

is only a post-judgment order, not a new judgment. Because

Hampton was decided after Clayton, and is directly on point

in addressing section 1170.95, we are bound by Hampton,

not Clayton. Cf. Ocwen Loan Servicing, L.L.C. v. Berry, 852

F.3d 469, 473 (5th Cir. 2017) (holding that “[i]n diversity

cases”—where state court decisions likewise bind us—“we

are to follow subsequent state court decisions that are clearly

contrary to a previous decision of this court” (citation

omitted)). Therefore, Brown’s reliance on Clayton and his

reading of Hampton are unavailing.

The government also misreads Hampton. It argues that

although Hampton held that an order granting relief under

section 1170.95 was not a custodial judgment, the order in

this case was distinguishable because it was an appealable

post-judgment order that constituted a new legal event

separate from the original custodial judgment. As such, the

government argues, it can be challenged by a second habeas

petition. This argument fails. The Supreme Court has

clarified that a habeas petitioner must “ask for relief from the

state court judgment contested” (under which a prisoner is

incarcerated). Magwood, 561 U.S. at 334 n.9 (citation and

internal quotation marks omitted). Brown’s application

under section 1170.95 is an application to vacate the state

court judgment authorizing Brown’s current confinement.

Because the state has determined that the denial of such an

BROWN V. ATCHLEY 29

application is not itself a new judgment, see Hampton, 74

Cal. App. 5th at 1101, Brown cannot escape the second or

successive bar on the basis of the denial of resentencing

being a new legal event. Regardless whether it is a new legal

event, it is not a new custodial judgment under Magwood,

and is therefore irrelevant to the second or successive

inquiry. Therefore the government’s attempt to distinguish

Hampton is unavailing.

III

Because Clayton has caused confusion for prisoners, the

government, and the district courts regarding the import of a

denial of a motion for resentencing, we should ensure the

public receives “the normal law-clarifying benefits that

come from an appellate decision on a question of law.”

Pierce v. Underwood, 487 U.S. 552, 561 (1988). “The role

of the appellate court in theory, of course, is to right the legal

wrongs that occur in the district courts and, in the course of

so doing, to explain to the parties the error in the arguments

they advance in defense of and challenge to the district

court’s judgment.” Kentuckians for the Commonwealth, Inc.

v. Rivenburgh, 317 F.3d 425, 449 (4th Cir. 2003) (Luttig, J.,

concurring in part and dissenting in part). We should do so

here.