Judge Merritt thinks so, see his dissent today (starting at page 14), in an opinion that Judge Reinhardt can pop into what I assume will be his forthcoming opinion in Irons v. Carey, which I assume will then turn into the opinion below in a very interesting case for OT06, a sort of Felker v. Turpin revisited.

  (My apologies if this post is too inside baseball; I assume that the only readers who care are the readers who understand.) Hat tip: Appellate Law & Practice.