                                                                            FILED
                               NOT FOR PUBLICATION                           NOV 09 2010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

      v.
                                                        MEMORANDUM *
 N. HOWTON,

                  Respondent-Appellee.


                       Appeal from the United States District Court
                               for the District Of Oregon
                         Ann L. Aiken, District Judge, Presiding

                          Argued and Submitted October 5, 2010
                                   Portland, Oregon

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 (2004), and

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



                                           2
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



                                          3
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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