Christopher Wentzell v. D. Neven, et al
FILED OPINION (A. WALLACE TASHIMA, BARRY G. SILVERMAN and MARVIN J. GARBIS) REVERSED AND REMANDED. Judge: AWT Authoring, FILED AND ENTERED JUDGMENT. 
Page: 1 of 8
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER NOEL WENTZELL,
D. W. NEVEN; NEVADA ATTORNEY
CV 10-1024 RLH
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
February 14, 2012—San Francisco, California
Filed April 2, 2012
Before: A. Wallace Tashima and Barry G. Silverman,
Circuit Judges, and Marvin J. Garbis,
Senior District Judge.*
Opinion by Judge Tashima
*The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
WENTZELL v. NEVEN
Page: 2 of 8
Debra A. Bookout, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
Page: 3 of 8
WENTZELL v. NEVEN
Robert E. Wieland, Senior Deputy Attorney General, Reno,
Nevada, for the respondents-appellees.
TASHIMA, Circuit Judge:
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 Wentzell’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
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 oneyear 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 v. NEVEN
Page: 4 of 8
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.
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” under
the AEDPA, United States v. Lopez, 577 F.3d 1053, 1059 (9th
 Under the AEDPA, a § 2254 habeas petition must be
filed within a one-year limitations period, which commences
Page: 5 of 8
WENTZELL v. NEVEN
to run on specified triggering dates. 28 U.S.C. § 2244(d)(1).
When untimeliness is obvious on the face of a habeas petition,
the district court has the authority to raise the statute of limitations sua sponte and to dismiss the petition on that ground.
Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). However, “that authority should only be exercised after the court
provides the petitioner with adequate notice and an opportunity to respond.” Id. at 1043; see also Day v. McDonough,
547 U.S. 198, 210 (2006). For a pro se petitioner like Wentzell, the court must make clear the grounds for dismissal and
the consequences of failing to respond. Herbst, 260 F.3d at
1043 (citing Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.
1998)). These rules are consistent with “the well-established
principle that a person is entitled to notice before adverse
judicial action is taken against him.” Id. (quoting Acosta v.
Artuz, 221 F.3d 117, 121 (2d Cir. 2000)).
 Here, the district court sua sponte dismissed the petition after concluding that the petition had been filed outside
the AEDPA limitations period without ordering a response
from the State, giving Wentzell notice of the grounds on
which it was contemplated the dismissal would be based, or
offering him an opportunity to respond. The State argues that
the district court was not required to take such steps because
it was “unmistakably clear from the facts alleged in the petition” that it was untimely and that no equitable tolling or
other special circumstances applied. Neither our decision in
Herbst nor the Supreme Court’s decision in Day, however,
authorizes such an exception to the requirement that the court
give a petitioner notice and an opportunity to respond. The
district court erred when it dismissed the petition without first
providing Wentzell notice and an opportunity to respond.
 A petitioner must obtain leave from the Court of
Appeals in order to file a “second or successive” habeas petition with the district court. 28 U.S.C. § 2244(b)(3)(A). Went-
WENTZELL v. NEVEN
Page: 6 of 8
zell argues that his petition is not “second or successive”
because it is his first petition challenging the amended judgment of conviction issued in 2009. We agree. In Magwood v.
Patterson, 130 S. Ct. 2788 (2010), the Supreme Court held
that a numerically second habeas petition challenging a judgment imposed after resentencing was not “second or successive” under the AEDPA, where the first habeas petition was
filed prior to resentencing and challenged the original judgment. Id. at 2801. Although the Court had “no occasion to
address” the precise scenario this case presents, id. at 2802,
we conclude, as a matter of first impression, that the basic
holding of Magwood applies here: the latter of two petitions
is not “second or successive” if there is a “new judgment
intervening between the two habeas petitions.” Id.
 The State argues that Wentzell’s petition is “second or
successive” notwithstanding the intervening judgment,
because his amended judgment left the convictions and sentences on the two remaining counts unchanged, and the second petition challenges those unaltered components of the
judgment. With regard to this argument, we find the Second
Circuit’s analysis in Johnson v. United States, 623 F.3d 41, 44
(2d Cir. 2010), persuasive. Johnson held that “where a first
habeas petition results in an amended judgment, a subsequent
petition is not successive,” even if its claims could have been
raised in a prior petition or the petitioner “effectively challenges an unamended component of the judgment.” Id. at 46.
The court reasoned that “[i]n light of Magwood, we must
interpret successive applications with respect to the judgment
challenged and not with respect to particular components of
that judgment.” Id. (citing Magwood, 130 S. Ct. at 2797,
We recognize that the Fifth Circuit in In re Lampton, 667
F.3d 585 (5th Cir. 2012), declined to follow Johnson,
although it recognized that the two cases involved “virtually
identical facts.” Id. at 589. It distinguished the two cases on
the basis that in Lampton, unlike in Johnson, the government
Page: 7 of 8
WENTZELL v. NEVEN
did not concede that the second petition was not successive.
See id. at 589 & n.18 (citing Johnson, 623 F.3d at 46). Lampton, however, did not involve a new, amended judgment.
Instead, it involved the vacation of a conviction and sentence
for a lesser included offense and, under Fifth Circuit practice,
this “leav[es] the conviction and sentence on the greater
offense intact.” Id. at 588. (internal quotation mark and footnote omitted) (alteration added). Thus, the district court in
Lampton was “not required to enter a new judgment as to the
remaining counts. Those convictions and sentences, as well as
the judgment imposing them, remain undisturbed.” Id. at 589.
As we have explained above, such was not the case here.
Here, a new, amended judgment was entered by the state trial
Recognizing the tension between Johnson and Lampton, we
agree with the Second Circuit’s reasoning in Johnson. The
Supreme Court’s discussion in Magwood indicates that procedural default rules — rather than the rules governing “second
or successive” petitions — are the more appropriate tools for
sorting out new claims from the old. Magwood, 130 S. Ct. at
2801-02. In essence, the State’s argument is that Wentzell’s
petition is “second or successive” because he could have
brought the claims challenging his convictions in his prior
petition. The Supreme Court rejected such a “one opportunity
rule” in Magwood, holding that the “AEDPA’s text commands a more straightforward rule:” an application challenging a new, intervening judgment “is not second or successive
at all.” Id. at 2798.
 The Second Circuit’s approach is also consistent with
existing law in this Circuit. We have held that “a successful
[§ ] 2255 petition, utilized as a device to obtain an out-of-time
appeal, does not render a subsequent collateral challenge ‘second or successive.’ ” Johnson v. United States, 362 F.3d 636,
638 (9th Cir. 2004). In the context of finality, we treat the
judgment of conviction as one unit, rather than separately
considering the judgment’s components, i.e., treating the con-
WENTZELL v. NEVEN
Page: 8 of 8
viction and sentence for each count separately. See Colvin,
204 F.3d at 1226; cf. Maharaj v. Sec’y for the Dep’t of Corr.,
304 F.3d 1345, 1348 (11th Cir. 2002). We thus adopt the Second Circuit’s rule and hold that Wentzell’s petition is not
“second or successive” under the AEDPA because it challenges a new, intervening judgment.
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?