Wentzell v. Neven, No. 10-16605 (4-2-12) (Tashima with Silverman and Garbis, D.J.).

Let's say that a petitioner subsequently wins relief in state court, and gets one count of conviction dismissed and has his judgment amended, after a prior federal habeas was dismissed as untimely. Can he file a new federal habeas, or is it barred as untimely or as a second of subsequent habeas? The 9th reasons that the petitioner's challenge was to a new judgment and therefore not a second petition. The 9th adopts the approach of the 2nd Circuit, and rejects the 5th's. Hmmmm, a circuit conflict over whether this is a new or subsequent petition. Could be cert bound. The 9th also finds error in the district court dismissing the petition sua sponte as untimely without notice to the State or petitioner.

Congratulations to AFPD Debra Bookout of the Nevada FPD (Las Vegas).

Ben-Sholom v. Ayers, No. 09-99014 (4-2-12)(McKeown with Clifton and Bybee).

The petitioner gets relief on his death sentence because of IAC. The state does not challenge this. He challenges, however, the denial of the challenge of IAC related to guilt. The state does not challenge this. The issue then becomes prejudice. The 9th holds that there was no prejudice from the IAC on the guilt determination given the evidence, and the circumstances. The petitioner was part of a robbery that led to the owner's murder. The petitioner's mental problems, horrid abusive childhood, youth, and domination by others affected the sentence, but the circumstances of the murder led to IAC being harmless.