James Wilkinson v. Doug Gingrich

ORDER AND AMENDED OPINION

ORDER

The opinion filed on September 3, 2015, and published at 800 F.3d 1062 , is hereby amended and replaced by the amended opinion filed concurrently with this order. With these amendments, all judges on the panel have voted to deny the petition for panel rehearing. The petition for panel rehearing is DENIED. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing en banc is therefore DENIED. Fed. RApp. P. 35. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

The State of California appeals the district court’s grant of James Kendell Wilkinson’s petition for a writ of habeas corpus. Wilkinson was convicted of perjury for testifying in a traffic court proceeding that he was not the driver of a car that had been stopped for speeding and whose driver had been ticketed. The State brought the perjury prosecution after Wilkinson was acquitted of the speeding offense. We agree with the district court that the state appellate court unreasonably applied Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469…