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Christopher Noel v. D. W. Neven; Nevada

April 2, 2012

CHRISTOPHER NOEL WENTZELL, PETITIONER-APPELLANT,
v.
D. W. NEVEN; NEVADA ATTORNEY GENERAL, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada Roger L. Hunt, Senior District Judge, Presiding D.C. No. CV 10-1024 RLH

The opinion of the court was delivered by: Tashima, Circuit Judge:

FOR PUBLICATION

Argued and Submitted February 14, 2012-San Francisco, California

Before: A. Wallace Tashima and Barry G. Silverman, Circuit Judges, and Marvin J. Garbis, Senior District Judge.*fn1

Opinion by Judge Tashima

OPINION

Nevada state prisoner Christopher Wentzell appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court dismissed Wentzell's pro se petition as untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), and, alternatively, as a "second or successive" petition, 28 U.S.C. § 2244(b). We conclude that the district court erred in sua sponte dismissing the petition as untimely without providing Wentzell with prior notice and an opportunity to respond. We also hold that Went-zell's petition is not "second or successive" under the AEDPA because it is the first petition to challenge the amended judgment of conviction, which was entered after his initial habeas petition.

I.

In 1996, Wentzell pled guilty in Nevada state court to solicitation to commit murder (Count I), principal to the crime of attempted murder (Count II), and principal to the crime of theft (Count III). He was sentenced to serve 10 years in state prison on Count I, 20 years on Count II, and 10 years on Count III, all sentences to run consecutively. In February 1998, Wentzell filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition, holding that it was filed outside the AEDPA's one-year limitations period. Both the district court and this court denied Wentzell's application for a certificate of appealability ("COA"). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

Wentzell then filed a state petition for writ of habeas corpus, which the Nevada state court granted in part. The court held under Nevada law that Wentzell could not have been convicted of both solicitation to commit murder and principal to the crime of attempted murder. Accordingly, it ordered that the judgment of conviction be amended to dismiss Count I and the sentence under Count I. On June 30, 2009, the state court entered an amended judgment of conviction. The amended judgment reflected a conviction for two offenses: principal to the crime of attempted murder (Count II), and principal to the crime of theft (Count III). The sentences for the two remaining counts remained the same as in the original judgment: 20 years on Count II and 10 years on Count III, to be served consecutively.

On June 23, 2010, Wentzell filed pro se the habeas petition now on appeal before us. The district court sua sponte dismissed the petition as time-barred. It also held that it was "required to dismiss the petition" because it was a second or successive petition and Wentzell had not obtained leave from the Ninth Circuit Court of Appeals to file it. See 28 U.S.C. § 2244. Wentzell timely appealed. We issued a COA after the district court declined to do so. The COA covers the two issues we address in this opinion.

II.

We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court's decision to dismiss a habeas petition on timeliness grounds, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999), as well as the district court's determination that a petition is "second or successive" ...


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