Alex Marquez v. E. K. MCDANIEL and ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX MARQUEZ,
Petitioner-Appellant,
v.
E. K. MCDANIEL and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 17-15154
D.C. No.
3:15-cv-00492-MMD-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted June 15, 2018**
San Francisco, California
Before: SCHROEDER, EBEL,*** and GOULD, Circuit Judges.
Without having the benefit of our decisions in Smith v. Williams, 871 F.3d
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
JUN 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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684 (9th Cir. 2017), and Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017), the
district court denied Alex Marquez’s petition for habeas relief on grounds that it
was not filed within the one-year period for seeking federal habeas relief set forth
in 28 U.S.C. § 2244(d)(1). We reverse, because Marquez’s petition was timely.
Marquez’s initial judgment of conviction became final on August 4, 2008.
That judgment contained an unlawful sentence, so an amended judgment was
entered on December 8, 2008, that corrected this error. On March 11, 2009,
Marquez filed for post-conviction relief, tolling the running of the one-year statute
of limitations. Marquez’s petition for post-conviction relief was denied by the
state trial court and that decision was affirmed by the Nevada Court of Appeals on
February 24, 2015. Remittitur issued on March 24, 2015, restarting the running of
the statute of limitations. The district court received the petition on September 24,
2015. Under these circumstances, Marquez’s petition is timely if the statute of
limitations runs from the date of the amended judgment, and not from the date of
the initial judgment.
We hold that the one-year period runs from the date of the amended
judgment, and that therefore Marquez’s petition was timely. In Smith v. Williams,
we held that for purposes of determining the start of the one year statute of
limitations for filing a habeas petition under 28 U.S.C. § 2244(d)(1), the relevant
judgment is the one under which a prisoner is being held. 871 F.3d at 688. Where

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an amended or corrected judgment is entered, a prisoner is held under that
amended or corrected judgment. Id. Here, the December 8, 2018 judgment made
a substantial change in Marquez’s sentence by removing an unlawful 120 month
sentencing enhancement. “[A] change to a defendant’s sentence is a change to his
judgment.” Gonzalez v. Sherman, 873 F.3d at 769. Because it effected a change in
his sentence, the December 8, 2008 judgment is a new judgment under which
Marquez is being held, and Marquez’s petition is timely. We remand for further
proceedings.1
REVERSED and REMANDED.
1 Appellant’s Motion to Supplement the Record on Appeal (Dkt. 11), which was
not opposed, is GRANTED.

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