In re Turner

101 F.3d 1323, 96 Daily Journal DAR 14425, 96 Cal. Daily Op. Serv. 8714, 1996 U.S. App. LEXIS 30993, 1996 WL 691224

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 1996
• Docket: No. 96-80418
• Status: Published

Opinion

Petitioner has filed a motion for permission to file a successive habeas corpus petition in the district court pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, codified in relevant part at 28 U.S.C. § 2244(b)(3). Petitioner’s motion was lodged in this court on October 28, 1996 pursuant to the pre-filing review order entered in docket no. 93-80158. We hold that section 2244 does not apply to second or subsequent habeas petitions where the first petition was dismissed without prejudice for failure to exhaust state remedies, and we deny petitioner’s motion as unnecessary.

The petition which petitioner seeks to file in the district court raises the same claims raised in his prior petition, which was dismissed by the district court without prejudice for failure to exhaust state remedies.

This court has not decided whether 28 U.S.C. § 2244(b)(3), as amended by the 1996 Act, applies to second or subsequent petitions where the same claims have previously been dismissed without prejudice for failure to exhaust. See Camarano v. Irvin, 98 F.3d 44 (2d Cir.1996) (permission to file successive petition under Anti-Terrorism Act not required where first petition dismissed for failure to exhaust). We hold that it does not.

Consequently, petitioner may file his petition in the district court without prior permission from this court, and the motion is denied as unnecessary.