Smith v. Stewart

MEMORANDUM ** Washington state prisoner Robert Smith, Jr. appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as second or successive. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we reverse and remand. In his § 2254 petition, Smith challenges the Indeterminate Sentence Review Board’s 2005 decision denying him parole and does not challenge his underlying con *510 viction or sentence. His parole claims have never been decided on the merits and could not have been raised in his earlier petitions challenging his conviction and sentence. Accordingly, the district court erred in dismissing the petition as second or successive. See Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir.2002). We reverse and remand to the district court for further proceedings. We express no opinion on whether Smith has properly exhausted his state court remedies. Smith’s motion for judgment on the pleadings is denied. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.