In re: Keith Dale MARTIN, Movant, 398 F. App'x 326

ORDER Keith Dale Martin has filed his sixth motion for authorization to file a second or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny authorization. In the order denying his fifth motion for authorization, we imposed filing-restriction sanctions. In re Martin, No. 08-5134 (10th Cir. Oct. 6, 2008). Despite the sanctions, Mr. Martin again seeks to challenge the same state conviction and sentence by asserting a version of the same claims he has already asserted in his many previous filings.

He now claims, however, that authorization is warranted because the trial court entered an amended judgment on December 17, 2009. The purpose of the amended judgment was to correct a clerical error in the judgment; the Count 1 charge was corrected to state that he had been convicted of unlawful possession of a controlled drug after former conviction of a felony. He contends that this amended judgment provides newly discovered evidence needed for authorization to file a second or successive § 2254 petition. See 28 U.S.C. § 2244(b)(2)(B). We disagree. Although the Supreme Court recently held in Magwood v.

Patterson, — U.S. -, -, 130 S.Ct. 2788, 2792, 177 L.Ed.2d 592 (2010), that a first-time challenge to a new state-court judgment is not a second or successive application under § 2244(b), Magwood is factually distinguishable from this case. In Mag-wood, after the federal district court granted conditional § 2254 habeas relief, the state trial court held new sentencing proceedings and then entered a new judgment at the conclusion of those proceedings. In comparison, in this case there were no new proceedings resulting in a new judgment.

Rather, the amended judgment merely corrected a clerical error — one which did not rise to the level of constitutional error, as Mr. Martin was fully aware of his offense of conviction. Accordingly, we DENY the motion for authorization. This denial is not appeal-able and “shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).