From Gollehon v. Mahoney, 2010 U.S. App. LEXIS 23944 (9th Cir. Nov. 22, 2010):
As an initial matter, we address Gollehon's contention that he lacked fair notice because "no decision of the Montana Supreme Court (up until [his] case) even considered whether an offender convicted of deliberate homicide by accountability could be sentenced to death." *** "Due process is not, however, violated simply because the issue is a matter of first impression." Ponnapula v. Spitzer, 297 F.3d 172, 183 (2d Cir. 2002). So long as "prior decisions gave reasonable warning" that the law would be applied in a certain way, they need not present a "fundamentally similar" factual scenario. Lanier, 520 U.S. at 269 (internal quotation marks omitted); see also Rose v. Locke, 423 U.S. 48, 51, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975) (per curiam) (noting that "the existence of previous applications of a particular statute to one set of facts" is not required to survive a "lack-of-fair-warning challenge").
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