NOT FOR PUBLICATION NOV 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEPHEN EUGENE WELLS, No. 09-35963
Petitioner-Appellant, DC No. 6:07-cv-1117 TC
Appeal from the United States District Court for the District Of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted October 5, 2010
Before: TASHIMA, PAEZ, and CLIFTON, Circuit Judges.
Stephen Eugene Wells, a former Oregon state prisoner now on post-
conviction supervision, appeals from the district court's denial of his 28 U.S.C. §
2254 petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. §
2253. We review de novo the district court's denial of the petition. Gonzalez v.
Brown, 585 F.3d 1202
(9th Cir. 2009). We affirm the district court's determination
This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
on Wells' Sixth Amendment claim, but reverse in part and remand to the district
court to review Wells' first and fourth claims on the merits.
Wells claims that his conviction on two counts of sexual abuse in the first
degree by a less-than-unanimous jury violated his Sixth Amendment right to trial
by jury. He contends that the Supreme Court's recent decisions in Apprendi v.
New Jersey, 530 U.S. 466
(2000), Blakely v. Washington, 542 U.S. 296
Cunningham v. California, 549 U.S. 270
(2007) have undermined Apodaca v.
Oregon, 406 U.S. 404
(1972), which upheld Oregon's system of allowing
convictions by non-unanimous juries.
This court, however, is not permitted to conclude that longstanding Supreme
Court precedent has been overruled by implication. Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477
, 484 (1989) ("If a precedent of this
Court has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
decisions."); Agostini v. Felton, 521 U.S. 203
, 237-38 (1997) ("[W]e do not hold[ ]
that other courts should conclude our more recent cases have, by implication,
overruled an earlier precedent."). Apodaca is directly applicable, and we must
follow it. Because Wells' Sixth Amendment claim fails on the merits, we affirm
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the denial of habeas relief on this ground without first determining whether this
claim is barred on state procedural grounds or for failure to exhaust. See 28 U.S.C.
§ 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518
, 525 (1997).
The district court rejected as procedurally defaulted Wells' claims of
ineffective assistance of appellate counsel and deprivation of due process and
fundamental fairness. Wells was unable to raise these claims when the state trial
court determined that Wells had failed to comply with its order requiring Wells to
"immediately" file an amended petition for post-conviction relief. This ruling was
later upheld in a published decision of the Oregon Court of Appeals. Wells v.
Santos, 155 P.3d 887 (Or.App. 2007). As a result, these claims for post-conviction
relief, were never considered on their merits.
The procedure by which the post-conviction trial court first granted Wells
leave to file an amended petition "immediately" and then revoked that leave after
deeming the filing not sufficiently "immediate" was, to say the least, unusual,
especially in light of the fact that Wells had just retained new counsel. As Wells
notes, post-conviction petitioners in Oregon are regularly granted leave to file
second and even third amended petitions. Reading the applicable Oregon law, the
procedural rule, and cases interpreting that rule would give Wells no indication of
how "immediate" his filing needed to be, nor any reason to know that the trial
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court's leave could be revoked on the ground of failure to file "immediately." See
Or. Rev. Stat. § 138.610; Or. R. Civ. P. 23A. This singular procedure was neither
firmly established nor regularly followed at the time it was applied to Wells;
therefore, it is not "adequate" to bar the consideration of Wells' claims. Ford v.
Georgia, 498 U.S. 411
, 423-24 (1991). We reverse and remand the matter to the
district court to consider Wells' claims of ineffective assistance of appellate
counsel and deprivation of due process and fundamental fairness on their merits.
Each party shall bear his own costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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