Wentzell

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 petition.

I.

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,…