Leopold Cardenas, Petitioner-appellant, v. Robert Wright, Respondent-appellee, 76 F.3d 384 (9th Cir. 1995)

MEMORANDUM^** 

Leopold Cardenas, a Washington state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition. He contends the district court erred when it dismissed his petition as successive. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.

In 1989, Cardenas was convicted of burglary in the state of Washington and sentenced to 57 months' imprisonment.

In 1990, Cardenas was convicted of custodial assault in the same state and sentenced to 51 to 60 months' imprisonment consecutive to his sentence for burglary.

On May 5, 1994, the district court dismissed Cardenas's first petition, which challenged his 1989 burglary conviction, on the ground that Cardenas was not in custody under his 1989 sentence at the time he filed his petition. Cardenas filed an untimely notice of appeal which the district court construed as a request for a certificate of probable cause and denied.

On March 1, 1995, Cardenas filed a second petition, asserting the same claims raised in his original petition. On April 4, 1995, the district court dismissed the second petition as successive. Cardenas timely appealed.

We review a district court's dismissal of a petition as successive for an abuse of discretion. Howard v. Lewis, 905 F.2d 1318, 1321 (9th Cir. 1990). A petition is successive if it contains claims which were previously raised in a prior petition and rejected on their merits. Sanders v. United States, 373 U.S. 1, 15 (1963). Because Cardenas's original petition was not rejected on its merits, his second petition is not successive. See id.

Accordingly, we vacate the district court's judgment and remand with instructions to reconsider in light of Garlotte v. Fordice, 115 S. Ct. 1948, 1949, 1952 (1995) (petitioner subject to consecutive sentences may challenge conviction for sentence already served so long as he is still in custody under sentence consecutive to that challenged) and Maleng v. Cook, 490 U.S. 488 (1989) (reading challenge to conviction for which petitioner is no longer in custody as challenge to his subsequent conviction as enhanced by allegedly invalid first conviction).

VACATED and REMANDED.