Dale Stephen Rodabaugh v. JEFFREY A. BEARD, Dr. and MARION SPEARMAN

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE STEPHEN RODABAUGH,
Petitioner-Appellant,
v.
JEFFREY A. BEARD, Dr. and MARION
SPEARMAN,
Respondents-Appellees.
No. 15-56513
D.C. No.
2:14-cv-06266-MMM-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted April 4, 2017**
Pasadena, California
Before: EBEL,*** M. SMITH, and N.R. SMITH, Circuit Judges.
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

-- 1 of 4 --

Dale Stephen Rodabaugh appeals the district court’s order dismissing his
numerically second federal habeas corpus petition (“the Petition”), brought under
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), as an
impermissible “second or successive” petition. We review de novo a district
court’s determination that a habeas petition, brought under the AEDPA, is second
or successive. Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir. 2005). We
have jurisdiction to hear this appeal, 28 U.S.C. §§ 1291, 2253, and we reverse and
remand.
“[T]he latter of two [federal habeas] petitions is not ‘second or successive’ if
there is a ‘new judgment intervening between the two habeas petitions.’” Wentzell
v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012) (quoting Magwood v. Patterson,
561 U.S. 320, 341 (2010)). Rodabaugh filed his first federal habeas petition on
December 23, 2002.1 After Rodabaugh filed his first federal habeas petition, but
before he filed the Petition, Rodabaugh sought habeas relief in the California Court
of Appeal. He argued that the sentencing court had made a legal error in imposing
two-year enhancements for personal use of a deadly weapon on two counts of
1 Rodabaugh had previously filed another federal habeas petition, but the
U.S. District Court for the Central District of California dismissed that petition
without prejudice on November 8, 2002. Therefore, we refer to the December
2002 petition as Rodabaugh’s first federal habeas petition.
2

-- 2 of 4 --

second degree robbery, of which he was convicted. The Court of Appeal agreed
that the sentencing court was not authorized to impose enhancements greater than
one year on the second degree robbery convictions under California Penal Code
section 12022, subdivision (b), because Rodabaugh had not been convicted of
carjacking or attempted carjacking. Accordingly, on March 23, 2013, the
California Court of Appeal modified the enhancements imposed on Rodabaugh’s
sentence and reduced his sentence from ninety-five years to life to ninety-three
years to life. The Court of Appeal also directed the California Superior Court to
file a modified abstract of judgment to reflect this change. On November 22, 2013,
the Superior Court of California, County of Los Angeles, held a hearing and
“order[ed] the abstract of judgment amended as to counts 1 and 3 . . . in accordance
with the findings of the appellate court.”
The Court of Appeal modified Rodabaugh’s judgment of conviction to
correct a legal error, not a clerical error, in Rodabaugh’s sentence, because “the
error was made in rendering the judgment,” not “in recording the judgment
rendered.” People v. Nesbitt, 120 Cal. Rptr. 3d 59, 63 (Cal. Ct. App. 2010)
(quoting 46 Am. Jur. 2d, Judgments, § 202). In California, a Court of Appeal can
correct an “obvious legal error[]” in a sentence that presents a “pure question[] of
law” that is “correctable without referring to factual findings in the record or
3

-- 3 of 4 --

remanding for further findings.” See People v. Smith, 14 P.3d 942, 944 (Cal. 2001)
(quoting People v. Welch, 851 P.2d 802, 807 (Cal. 1993) (In Bank)). Thus, our
analysis is not altered by the fact that the Court of Appeal, rather than the original
sentencing court, modified Rodabaugh’s sentence. When it corrected such a legal
error in Rodabaugh’s sentence, the Court of Appeal issued a new, intervening
judgment. See Wentzell, 674 F.3d at 1127. The Superior Court did not need to
resentence Rodabaugh before a new, intervening judgment could be issued. See id.
at 1125, 1128 (finding a Nevada state court entered a “new, intervening judgment”
when it “entered an amended judgment of conviction,” but did not resentence the
petitioner). Rodabaugh filed the Petition on August 8, 2014. Therefore, the
Petition, filed after a new, intervening judgment was entered, was not “second or
successive.”2
REVERSED and REMANDED.
2 Appellant’s two motions to take judicial notice and motion to file
supplemental excerpts of record are GRANTED.
4

-- 4 of 4 --