Wentzell v. Neven
674 F.3d 1124
| 9th Cir. | 2012Background
- Wentzell pled guilty in 1996 to solicitation to commit murder, attempted murder principal, and theft principal; sentences run consecutively.
- In 1998, Wentzell filed a 28 U.S.C. § 2254 petition; district court dismissed as untimely under AEDPA.
- Wentzell timely appealed; COA issued; state court later amended judgment removing Count I after finding dual convictions improper.
- June 30, 2009, Nevada amended judgment: conviction remained for attempted murder and theft; sentences unchanged.
- June 23, 2010, Wentzell filed pro se habeas petition challenging the amended judgment; district court sua sponte dismissed as time-barred and second/successive.
- Ninth Circuit granted COA and held district court erred by dismissing without notice; petition not second or successive because it challenges a new intervening judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May district court sua sponte dismiss as untimely with notice required? | Wentzell | Nevada Attorney General | No; due process requires notice and response before sua sponte dismissal. |
| Is Wentzell's petition second or successive under AEDPA? | Wentzell argues not second/successive because amended judgment intervened. | State argues still second/successive. | Not second or successive; intervening new judgment permits non‑second/successive treatment. |
| Does Magwood govern whether a new intervening judgment resets AEDPA timing rules? | Wentzell relies on Magwood to treat new judgment as non‑bar to review. | State contends Magwood not controlling here. | Magwood applies; new intervening judgment resets the analysis, not a terminal second/successive bar. |
Key Cases Cited
- Magwood v. Patterson, 560 U.S. 2788 (2010) (new intervening judgment resets AEDPA analysis; not 'second or successive')
- Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) (petition challenging amended judgment not necessarily successive)
- In re Lampton, 667 F.3d 585 (5th Cir. 2012) (distinguishes Lampton’s facts from Johnson; government concession noted)
- Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001) (court may sua sponte dismiss timeliness with notice and opportunity to respond)
- Day v. McDonough, 547 U.S. 198 (2006) (due process requires notice before adverse dismissal for timeliness)
- Miles v. Prunty, 187 F.3d 1104 (9th Cir.1999) (timeliness review standard for habeas petitions)
- United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009) (standard for determining 'second or successive' petitions)
- Magwood v. Patterson, 130 S. Ct. 2788 (2010) (reiterated principle that a new judgment intervening between petitions affects review)