Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-00226
(Summary Calendar)
_________________
IN RE: LYONELL GASERY,
Petitioner.
Motion for Authorization to file
a Successive Habeas Corpus Petition with the
United States District Court for the
Southern District of Texas
June 20, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:
Petitioner Lyonell Gasery, a Texas state prisoner, has moved
to file a second or successive habeas corpus petition pursuant to
28 U.S.C. § 2244(b). The district court dismissed Gasery's first
habeas petition without prejudice for failure to exhaust state
remedies as to certain, but not all, of the claims presented. See
Rose v. Lundy, 455 U.S. 509, 520-21, 102 S. Ct. 1198, 1204-05, 71
L. Ed. 2d 379 (1982) (holding that district court should dismiss,
without prejudice, habeas petition containing both exhausted and
unexhausted claims). Gasery has since attempted to exhaust his
state remedies,1 and now seeks leave to refile his petition,
1
We offer no opinion as to whether Gasery has in fact exhausted his
remedies in state court. See Dickinson v. State of Maine, 101 F.3d 791, 791 n.1
(1st Cir. 1996) (citing Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th Cir.
1996), for proposition that exhaustion is not precondition to consideration of
motion to file successive petition).

asserting the same claims as before.
Gasery's motion presents an issue of first impression in this
circuit))whether a petitioner seeking to refile a habeas corpus
petition after prior dismissal without prejudice for failure to
exhaust state remedies must comply with the new provisions of the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA" or "Act"),
Pub. L. 104-132, 110 Stat. 1214 (1996). The AEDPA amends 28 U.S.C.
§ 2244 to forbid any "second or successive" petition for collateral
relief without the consent of the court of appeals, which may be
granted only in limited circumstances. 28 U.S.C. § 2244(b)(3).2
Section 2244(b) does not define "second or successive"
petition. The specific language in the Act is derived from Rule
9(b), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254,
which states that "[a] second or successive petition may be
dismissed if . . . it fails to allege new or different grounds for
2
Specifically, the Court of Appeals may authorize a second or
successive petition only if the claims presented satisfy § 2244(b)(1) and (2):
(b)(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless))
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244(b).
-2-

relief and the prior determination was on the merits or, if new and
different grounds are alleged, . . . the failure of the petitioner
to assert those grounds in a prior petition constituted an abuse of
the writ." Although the AEDPA's amendment to § 2244 imposes
stricter requirements for "second or successive" petitions than the
pre-AEDPA "abuse of the writ" standard in Rule 9(b), nothing in the
AEDPA affects the determination of what constitutes a "second or
successive" petition. Benton v. Washington, 106 F.3d 162, 164 (7th
Cir. 1996).
Prior to passage of the AEDPA, we consistently concluded that
petitions that were refiled after dismissal for failure to exhaust
state remedies were not "second or successive" petitions for Rule
9(b) purposes. Woods v. Whitley, 933 F.2d 321, 322 (5th Cir. 1991)
(disregarding prior petition that had been dismissed without
prejudice); Jones v. Estelle, 722 F.2d 159 (5th Cir. 1983) (en
banc) (noting that "[a] petitioner who has both exhausted and
unexhausted claims faces no ultimate barrier to the federal
prosecution of all his claims [and] can obtain dismissal of his
federal writ, completely exhaust his claims, and, if unsuccessful,
return to federal court"), cert. denied, 466 U.S. 976, 104 S. Ct.
2356, 80 L. Ed. 2d 829 (1984); cf. Pryor v. Beto, 460 F.2d 306, 306
(5th Cir. 1972) (holding, prior to adoption of Rule 9(b), that
refiling of § 2254 petition that had been dismissed for failure to
exhaust state remedies was not barred as "successive"). Moreover,
since passage of the AEDPA, the First, Second, Seventh, and Ninth
Circuits have concluded that a habeas petition refiled after
-3-

dismissal without prejudice is neither second nor successive.
Benton, 106 F.3d at 164-65; In re Turner, 101 F.3d 1323, 1323 (9th
Cir. 1997); Dickinson v. Maine, 101 F.3d 791, 791 (1st Cir. 1996);
Camarano v. Irvin, 98 F.3d 44, 46-48 (2d Cir. 1996). We agree and
conclude that Gasery's refiled petition is merely a continuation of
his first collateral attack, not a "second or successive" petition
within the meaning of § 2244(b). See Benton, 106 F.3d at 164 ("The
sequence of filing, dismissal, exhaustion in state court, and
refiling . . . might generate multiple docket numbers, but it would
not be right to characterize it as successive collateral
attacks.").
For the foregoing reasons, we DENY Gasery's motion as
unnecessary. Gasery may file his petition directly in the district
court.
-4-