                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 27 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD WESLEY BRYAN,                            No. 14-35747

               Petitioner - Appellant,           D.C. No. 3:14-cv-05147-BHS

 v.
                                                 MEMORANDUM*
PAT GLEBE,

               Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                              Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      Richard Wesley Bryan appeals from the district court’s dismissal of his 28

U.S.C. § 2254 habeas petition as second or successive. We have jurisdiction under

28 U.S.C. § 2253. We review de novo, see Wentzell v. Neven, 674 F.3d 1124,

1126 (9th Cir. 2012), and we reverse and remand.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Bryan contends that his 2014 habeas petition is not second or successive to

the habeas petition he filed in 2013. We agree. Bryan’s 2013 petition challenged

sanctions imposed pursuant to a prison disciplinary proceeding, whereas Bryan’s

2014 habeas petition challenged, for the first time, his underlying conviction.

Because different state conduct is at issue, the latter petition is not second or

successive. See Magwood v. Patterson, 561 U.S. 320, 333 (2010) (“the phrase

‘second or successive’ must be interpreted with respect to the judgment

challenged”); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir. 2002) (later petition was

not second or successive because “Hill’s claims relating to mandatory parole

challenge the calculation of his release date rather than the sentence itself”). The

state’s reliance on Burton v. Stewart, 549 U.S. 147 (2007) (per curiam), is

misplaced. In Burton, unlike here, both petitions attacked the same judgment. See

id. at 156. We therefore reverse the dismissal of Bryan’s habeas petition and

remand to the district court for further proceedings.

      We express no opinion as to the merits of Bryan’s section 2254 habeas

petition or whether it meets the procedural requirements of section 2244(d) and

2254(b).

      REVERSED and REMANDED for further proceedings.




                                            2                                       14-35747
