Wilson

dissenting:

The Supreme Court held in Apprendi that the government must submit to a jury, and prove beyond a reasonable doubt, any fact that exposes a criminal defendant to a higher range of penalties. See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). But it also carved out an exception: A judge may find “the fact of a prior conviction.” Id.; see Almendarez-Torres v. United States, 523 U.S. 224, 239, 247 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). Courts have since debated and disagreed about the scope of the exception, and the Supreme Court hasn’t stepped in to draw a clear line for us. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir.2009) (“[T]he task of determining the precise contours of that exception has been left to the federal appellate courts.”); see also Shepard v. United States, 544 U.S. 13, 27 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and concurring in the judgment).

It’s hard to believe that the Sixth Amendment permits a sentencing judge to find disputed facts about what happened during a defendant’s prior offense. This is especially true when the defendant had no reason to challenge them…

Opinion by Judge NOONAN; Dissent by Chief Judge KOZINSKI.

*1214 ORDER

The Opinion and Dissent filed February 8, 2011 are withdrawn. A new Opinion and Dissent are filed herewith.

With this Opinion, the petition for rehearing is DENIED and the petition for rehearing en banc is DENIED. Chief Judge Kozinski would grant the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote whether to rehear the matter en banc. Fed. R.App. P. 35.

OPINION

Rick Wilson appeals the denial of his petition for a writ of habeas corpus. Holding that the California courts violated Wilson’s right to due process under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), we reverse the judgment of the district court and remand.

BACKGROUND

In 1993, Wilson pleaded no contest to gross vehicular manslaughter while driving under the influence of alcohol in violation of California Penal Code § 191.5(a), and to proximately causing bodily injury while driving under the influence of alcohol in violation of California Vehicle Code § 23153(b). There was a…