FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALQUANDRE H. TURNER,

Petitioner,

v.

RENEE BAKER, Warden,

Respondent.

No. 17-72044

OPINION

Application to File Second or Successive

Petition Under 28 U.S.C. § 2254

Argued and Submitted November 16, 2018

San Francisco, California

Filed January 15, 2019

Before: A. WALLACE TASHIMA and MILAN D. 

SMITH, JR., Circuit Judges, and LAWRENCE L. 

PIERSOL,* District Judge.

Opinion by Judge Milan D. Smith, Jr.

 * The Honorable Lawrence L. Piersol, United States District Judge 

for the District of South Dakota, sitting by designation.
2 TURNER V. BAKER

SUMMARY**

Habeas Corpus

The panel denied as unnecessary Alquandre Turner’s 

application to file a second or successive habeas corpus 

petition challenging his Nevada state conviction and 

sentence, and transferred the petition to the district court 

with instructions to consider it as a first habeas petition.

The panel held that a Nevada state court’s amended 

judgment awarding a defendant credit for time served 

constitutes a new judgment, and that Turner’s habeas 

petition is therefore the first petition challenging his 

amended judgment, which does not require authorization 

from this court.

The panel wrote that the issue of the timeliness of 

Turner’s petition is not properly before this court after this 

court determined, in an application for authorization to file a 

second or successive petition, that Turner’s petition is a first 

petition.

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

has been prepared by court staff for the convenience of the reader.
TURNER V. BAKER 3

COUNSEL

Thomas L. Qualls (argued), Reno, Nevada, for Petitioner.

Heidi P. Stern (argued), Chief Deputy Attorney General,

Office of the Attorney General, Las Vegas, Nevada, for 

Respondent.

OPINION

M. SMITH, Circuit Judge: 

When Petitioner Alquandre Turner filed his third federal 

habeas petition, the district court dismissed it in accordance 

with the Antiterrorism and Effective Death Penalty Act of 

1996’s (AEDPA) general rule prohibiting a state prisoner 

from filing more than one federal petition for writ of habeas 

corpus challenging his conviction or sentence. Like most 

rules, however, AEDPA has an exception: It does not bar 

successive petitions when a prisoner challenges a new 

judgment. Turner now files this application for 

authorization to file a second or successive petition under 

28 U.S.C. § 2254. But the title of his application is 

deceiving: Turner’s argument is that his petition is not a 

second or successive, but rather a first petition challenging a 

new judgment that added credit for the time he served before 

sentencing.

We recently held that, under California law, a state 

court’s amended judgment awarding a defendant credit for 

time served constitutes a new judgment. Gonzalez v. 

Sherman, 873 F.3d 763, 769 (9th Cir. 2017). We reach the 

same conclusion today as to Nevada law. Turner’s habeas 

petition, therefore, is the first petition challenging his 
4 TURNER V. BAKER

amended judgment. So we deny his application as 

unnecessary.

FACTUAL AND PROCEDURAL BACKGROUND

Following a jury trial in Clark County, Nevada, Turner 

was convicted of, among other counts, sexual assault while 

possessing a deadly weapon (Count 5). For Count 5, the 

Clark County District Court sentenced Turner to life with the 

possibility of parole after 10 years, plus a consecutive life 

sentence, with the possibility of parole after 10 years, for the 

deadly weapon enhancement. The court’s judgment, 

however, contained a mistake. It stated that, as to Count 5, 

Turner was sentenced to life with the possibility of parole 

after ten years, plus an enhancement of “ten (20) years 

minimum” for use of a deadly weapon. Moreover, the 

judgment of conviction listed no credit for time served by 

Turner before sentencing. On direct appeal, the Nevada 

Supreme Court affirmed Turner’s judgment.

Turner filed a federal petition for writ of habeas corpus. 

That petition was denied without prejudice. Turner then 

filed a state petition for postconviction relief. It was also 

denied, and Turner did not appeal. Turner filed another 

federal habeas petition. It was denied again—this time with 

prejudice.

Turner later moved to amend his judgment of conviction 

in the Clark County District Court. Turner argued that his 

sentence for Count 5 contained a clerical error—the 

enhancement for use of a deadly weapon should have stated 

“Ten (10) Years” instead of “Ten (20) Years.” Turner also 

argued that he was entitled to credit for 154 days of jail time 

that he served before he was sentenced.
TURNER V. BAKER 5

The court granted the motion and issued Turner’s 

amended judgment. The amended judgment revised the 

deadly weapon enhancement on Count 5 to “Ten (10) 

Years.” The amended judgment also gave Turner credit for 

154 days of time served. The Nevada Supreme Court 

affirmed Turner’s amended judgment on June 10, 2015, and 

remittitur issued on July 6, 2015.

On April 17, 2017, Turner filed a third federal habeas 

petition challenging his conviction and sentence. The 

district court dismissed the petition without prejudice as an 

unauthorized successive petition. The court reasoned that 

because Turner had previously filed two federal habeas 

petitions challenging his judgment of conviction, the current 

petition was a successive petition that required the 

authorization of this court.

Turner then filed an application for leave to file a second 

or successive petition pursuant to 28 U.S.C. § 2254. We 

appointed counsel for Turner and requested a supplemental 

application addressing whether Turner’s amended judgment 

constituted a new judgment.

ANALYSIS

I. Turner’s Amended Judgment

The question is whether Turner’s amended judgment 

awarding him credit for time served is a new judgment. We 

hold that it is.

A. The Meaning of a New Judgment

Among other purposes, AEDPA was enacted to ensure 

greater finality of state and federal court judgments in 

criminal cases. See Miller-El v. Cockrell, 537 U.S. 322, 337 
6 TURNER V. BAKER

(2003). To this end, AEDPA places strict restrictions on “the 

repeated filing of habeas petitions that attack the prisoner’s 

underlying conviction.” Rishor v. Ferguson, 822 F.3d 482, 

490 (9th Cir. 2016) (quoting Leal Garcia v. Quarterman, 

573 F.3d 214, 220 (5th Cir. 2009)). A defendant wishing to 

file a “second or successive” habeas petition with the district 

court must first obtain leave from the appropriate court of 

appeals. 28 U.S.C. § 2244(b)(3)(A).

“Second or successive,” however, ought not be 

interpreted literally—it is a “term of art.” Slack v. McDaniel, 

529 U.S. 473, 486 (2000). Just as consideration in contracts 

doesn’t refer to thoughtful deliberation, and standing in 

federal courts doesn’t refer to being in an upright position, 

so too does “second or successive” not “refe[r] to all § 2254 

applications filed second or successively in time.” Panetti 

v. Quarterman, 551 U.S. 930, 944 (2007).

In Magwood v. Patterson, the Supreme Court held that 

“the phrase ‘second or successive’ must be interpreted with 

respect to the judgment challenged.” 561 U.S. 320, 332–33 

(2010). Thus, “where . . . there is a ‘new judgment 

intervening between the two habeas petitions,’ [the petition] 

challenging the resulting new judgment is not ‘second or 

successive’ at all.” Id. at 341–42 (citation omitted) (quoting 

Burton v. Stewart, 549 U.S. 147, 156 (2007)).

The holding in Magwood leads to the question of what 

constitutes a “new judgment.” The Court did not provide a 

comprehensive answer—it simply held that the prisoner’s 

resentencing in that case was a new judgment. Id. at 342. 

Consequently, since Magwood, lower courts have had to 

decide how significant the change to a judgment must be to 

create a new judgment.
TURNER V. BAKER 7

We confronted that question in Gonzalez. Our decision 

provided an example of a change to a judgment that does not 

constitute a new judgment: the correction of a scrivener’s 

error. Gonzalez, 873 F.3d at 769, 772. “A scrivener’s error 

occurs when there is a discrepancy between the court’s oral 

pronouncement of the judgment and the written record of 

that judgment in the minute order or in the abstract of 

judgment.” Id. at 772. We reasoned that when an amended 

judgment corrects a scrivener’s error, it does not change the 

underlying judgment, but “only the written record that 

erroneously reflects that judgment.” Id. As a result, an 

amended judgment correcting a scrivener’s error has no legal 

consequences, and thus is not a new judgment.

Gonzalez contrasted the correction of a scrivener’s error 

with “a court’s recalculation and alteration of the number of 

time-served or other similar credits awarded to a petitioner,” 

which does constitute a new judgment. Id. at 769. In so 

holding, we relied on—and limited our holding to—

California law. Id. California requires prison officials to 

subtract a defendant’s time served from the number of days 

to which the defendant would have otherwise been 

sentenced. Cal. Penal Code § 2900.5(a). Therefore, when 

an amended judgment awards a prisoner credit for time 

served, it affects “the number of days a convicted individual 

will spend in prison.” Gonzalez, 873 F.3d at 769.

“Critical[]” to our holding in Gonzalez was the fact that 

a judgment that does not include a prisoner’s credit for time 

served is legally invalid. Id. California law requires courts 

to correct a judgment that does not include a prisoner’s time 

served whenever it is discovered. Id. (citing People v. 

Karaman, 842 P.2d 100, 109 n.15 (1992); People v. Taylor, 

14 Cal. Rptr. 3d 550, 563 (Ct. App. 2004)). Thus, an 

amended judgment awarding a defendant credit for time 
8 TURNER V. BAKER

served “remove[s] an invalid basis for incarcerating [the 

defendant], and provide[s] a new and valid intervening 

judgment to which” the defendant is held in custody. Id. at 

770.

B. Whether a Judgment Awarding Credit for Time 

Served is a New Judgment in Nevada

Turner argues that Nevada law compels the same 

conclusion. Citing Derijk v. State, 373 P.3d 909 (Table) 

(Nev. 2011), and Kuykendall v. State, 926 P.2d 781 (Nev. 

1996), he contends that a judgment that does not include a 

prisoner’s credit for time served is also legally invalid.

We begin with the statutory text. See Hughey v. United 

States, 495 U.S. 411, 415 (1990). Nevada Revised Statute 

(N.R.S.) § 176.055 governs the credit defendants receive for 

time served. That statute states, in relevant part, that 

“whenever a sentence of imprisonment . . . is imposed, the 

court may order that credit be allowed against the duration 

of the sentence.” N.R.S. § 176.055(1). The use of the word 

“may” suggests that, unlike in California, the decision 

whether to award defendants time served against their 

sentences is discretionary, not mandatory. See United States 

v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ 

when used in a statute, usually implies some degree of 

discretion.”).

The Nevada Supreme Court, however, has interpreted 

the statute differently. It has held that “despite its 

discretionary language, the purpose of [§] 176.055 is to 

‘ensure that all time served is credited towards a defendant’s 

ultimate sentence.’” State v. Second Judicial Dist. Court ex 

rel. County of Washoe, 116 P.3d 834, 836 (Nev. 2005) 

(quoting Kuykendall, 926 P.2d at 783). In so ruling, the 

Nevada Supreme Court adopted the reasoning of the 
TURNER V. BAKER 9

California Supreme Court, which held that courts must 

award prisoners credit for time served. See Kuykendall, 

926 P.2d at 783.

To be sure, California and Nevada law are not identical. 

As Gonzalez recognized, a judgment that does not include a 

defendant’s credit for time served is “considered invalid or 

‘unlawful’” under California law. 873 F.3d at 769 (quoting 

Karaman, 842 P.2d 100, 109 n.15). Nevada courts have not 

made such a definitive pronouncement.

Nevertheless, the Nevada Supreme Court has twice 

remanded cases to the trial court with instructions that it 

amend the defendant’s judgment to include credit for time 

served, see Derijk, 373 P.3d at 909; Kuykendall, 926 P.3d at 

783, and appellate courts do not remand cases unless the 

lower court’s ruling is erroneous. See, e.g., Zivotofsky ex rel. 

Zivotofsky v. Clinton, 566 U.S. 189, 201–02 (2012) 

(“[W]hen we reverse . . . we typically remand for resolution 

of any claims the lower courts’ error prevented them from 

addressing.”). Thus, those decisions implicitly demonstrate 

that judgments that do not include a defendant’s credit for 

time served are invalid.

Our decision in Gonzalez, although based on California 

law, applies to amended judgments awarding defendants 

credit for time served in Nevada. California and Nevada law 

are sufficiently similar to compel that conclusion. Thus, we 

construe Turner’s petition to be a first petition, which does 

not require authorization from this court.

II. Timeliness of Turner’s Petition

The government argues that we should deny Turner’s 

petition because it was not timely. That issue, however, is 

not properly before us. “In reviewing an application for a 
10 TURNER V. BAKER

second or successive habeas petition, we do not assess the 

cognizability of that petition.” Clayton v. Biter, 868 F.3d 

840, 846 (9th Cir. 2017); accord Henry v. Spearman, 

899 F.3d 703, 710 (9th Cir. 2018) (“The requirement of a 

mere prima facie showing [in an application for leave to file 

a second or successive petition] ‘render[s] irrelevant other 

possible grounds for dismissal such as ultimate lack of merit, 

nonexhaustion, procedural default, and the like.’”) (quoting 

Hertz & Liebman, Federal Habeas Corpus Practice and 

Procedure § 28.3[d] (7th ed. 2017)).

Having determined that Turner’s petition is a first 

petition, we may proceed no further. We transfer the petition 

to the district court to consider it as a first petition. See

Clayton, 868 F.3d at 846.

CONCLUSION

Under Nevada law, Turner’s petition is not a second or 

successive petition because it challenges a new judgment. 

As a result, he does not have to obtain authorization from 

this court before filing it. We deny the application as 

unnecessary and transfer the petition to the United States 

District Court for the District of Nevada with instructions to 

consider it as a first habeas petition.

APPLICATION DENIED and PETITION 

TRANSFERRED. No costs.