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Name: Wentzel v. Neven
Case #: 10-16605
Court: US Court of Appeals
District 9 Cir
Opinion Date: 04/02/2012

The federal petition filed after there has been a state court resentencing is not a second or successive petition which is subject to dismissal on that basis. In 1996, Wentzell was sentenced in Nevada to a cumulative sentence of 40 years. He filed a first federal petition in 1998, which was dismissed as untimely under AEDPA. Thereafter a state court petition for writ of habeas corpus was granted. He was then sentenced to a cumulative term of 30 years. The next federal petition was dismissed by the federal court, sua sponte, as time-barred because it was a “second or successive” petition. The sua sponte dismissal, without notice and an opportunity to respond, was contrary to well-established principles. As a matter of first impression, the latter of the two petitions is not a “second or successive” one if there is a new judgment intervening between the two habeas petitions.