Derran Smiley v. WILLIAM MUNIZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRAN SMILEY,
Petitioner-Appellant,
v.
WILLIAM MUNIZ, Warden,
Respondent-Appellee.
No. 16-17002
D.C. No. 5:15-cv-05507-RMW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
California state prisoner Derran Smiley appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Contrary to Smiley’s argument, the sole issue certified for appeal by the
* 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).
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court is whether Smiley’s habeas petition is second or successive. See
Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (a certificate of appealability
(“COA”) is granted “on an issue-by-issue basis, thereby limiting appellate review
to those issues alone”).
Smiley argues that his petition is not second or successive because the state
court’s amendments to the abstract of judgment in 2015 resulted in a new,
intervening judgment under Magwood v. Patterson, 561 U.S. 320 (2010). The
record shows the state court ordered the abstract of judgment corrected to reflect
that the jury had found true kidnapping special allegations, and to include the penal
code provision governing part of Smiley’s sentence. These amendments corrected
scrivener’s errors, which arose from discrepancies between the oral
pronouncement of sentence and the abstract of judgment; as such, they did not give
rise to a new judgment. See Gonzalez v. Sherman, 873 F.3d 763, 772 (9th Cir.
2017) (“Correcting a scrivener’s error in the abstract of judgment does not lead to a
new judgment because the judgment itself does not change, only the written record
that erroneously reflects that judgment.”).
Smiley also contends that his petition is not second or successive because it
raised claims that were not alleged in his first petition. A petition, however, is
second or successive “if it raises claims that were or could have been adjudicated
on their merits in an earlier petition.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir.

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2008) (internal quotations omitted).
We treat Smiley’s briefing of uncertified issues as a motion to expand the
COA, and deny the motion along with his separately filed motions to expand the
COA. See 9th Cir. R. 22-1(e); Hiivala, 195 F.3d at 1104-05.
AFFIRMED.

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