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United States Court of Appeals,
Fifth Circuit.
No. 96-11016
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Allen RESSLER, Defendant-Appellant.
Sept. 22, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:
On March 7, 1996, Ressler, federal prisoner No. 22047-077,
filed the instant 28 U.S.C. § 2255 motion, which was his second.
Ressler argued that his two prior convictions for "house breaking"
were not burglaries and thus not "crimes of violence" as defined
under 18 U.S.C. § 924(e). He contended that he had not presented
this claim earlier because his counsel had not investigated the
nature of the prior convictions and he did not learn of the
statutory definition until after he had filed his first § 2255
motion.
The government answered and argued that Ressler was
procedurally barred from raising this issue because he could have
raised it on direct appeal or in his first § 2255 motion but he had
not done so and had not shown either cause or prejudice for the
default. The government further argued that his claim was
meritless because the elements of "house breaking" satisfied the
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elements of "generic burglary" as defined in Taylor v. United
States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158-59, 109 L.Ed.2d 607
(1990), and his convictions were thus crimes of violence under §
924(e).
The district court dismissed Ressler's successive § 2255
motion because Ressler had not first obtained permission from a
Judge of the Court of Appeals to file a successive § 2255 as
required by the provisions of AEDPA, enacted on April 24, 1996. 28
U.S.C. § 2244(b)(3)(A). The district court applied the amended
version of § 2244 to Ressler's successive § 2255 motion even though
Ressler filed his motion before the AEDPA was signed.
Ressler timely appealed and requested this Court to issue a
Certificate of Appealability (COA). This Court granted Ressler a
COA limited to the question of the district court's application of
AEDPA to his pending § 2255 motion. On June 23, 1997, the Supreme
Court issued its opinion in Lindh v. Murphy, --- U.S. ----, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), which establishes the rules and
criteria for determining whether the provisions of AEDPA would be
applied to cases pending prior to the effective date of that Act.
On July 14, another panel of the Fifth Circuit held that under
Lindh v. Murphy the requirement for certification by the Court of
Appeals of a successive application under § 2255 does not apply
because the petitioner's application was pending on April 24, 1996,
the date AEDPA was enacted. Williams v. Cain, 117 F.3d 863 (5th
Cir.1997). Ressler's petition in this case was likewise pending on
the effective date of AEDPA.
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Accordingly, the judgment of the district court is VACATED and
this case is REMANDED to the district court for further proceedings
under the law as it existed prior to the adoption of AEDPA.

3