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Under § 2244(b) of the Antiterrorism and Effective Death Penalty Act, when a defendant files two petitions for writ of habeas corpus, the latter petition is not “second or successive” where an amended judgment intervenes between the filing of the two habeas petitions.

Nevada state prisoner, Christopher Wentzell, was convicted of solicitation to commit murder, principal to the crime of attempted murder, and principal to the crime of theft. The district court dismissed Wentzell’s petition for writ of habeas corpus as time-barred under the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). After both the district court and the Ninth Circuit denied Wentzell’s application for a certificate of appealability, Wentzell filed a state petition for writ of habeas corpus. The Nevada state court granted the petition in part and entered an amended judgment of conviction dismissing the count of solicitation to commit murder and leaving the other counts unchanged. Wentzell then filed a pro se habeas petition, which the district court sua sponte dismissed as beyond the AEDPA statute of limitations period and, alternatively, as a “second or successive” petition filed without leave from the Court of Appeals as required by § 2244(b) of the AEDPA. On appeal, the Ninth Circuit found that the district court erred in its sua sponte dismissal of the petition, because before doing so it failed to provide Wentzell “with adequate notice and an opportunity to respond.” Further, the Court concluded that the habeas petition at issue is not “second or successive” under the AEDPA, because Wentzell’s first habeas petition challenged the original judgment of conviction, not the amended judgment of conviction. In so finding, the Court relied on the Supreme Court’s decision in Magwood v. Patterson and held that “the latter of two petitions is not ‘second or successive’ if there is a ‘new judgment intervening between the two habeas petitions.’” REVERSED and REMANDED.