Rochon v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 97-31152
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-31152 Summary Calendar

RAYMOND ROCHON,

Petitioner-Appellant, versus BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-1481 _______________________________________________________________

June 4, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Raymond Rochon, Louisiana prisoner #93625, was convicted of

aggravated rape and sentenced to life imprisonment on December 7,

1979. On April 12, 1997, Rochon filed an application for writ of

habeas corpus by a person in state custody under 28 U.S.C. § 2254

in the Middle District of Louisiana. The district court dismissed

the application as successive because Rochon had not received leave

of this court to file a successive application.

This court has considered whether an applicant was require to

obtain permission to file a second habeas application after his

first application was dismissed for failure to exhaust state habeas

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. remedies. In Re: Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997).

This court concluded that a habeas application refiled after a

dismissal for failure to exhaust was not a “second or successive”

application within the meaning of § 2244(b). Id. at 1051-52.

In this case, the district court noted that Rochon had filed

numerous habeas applications and civil rights actions that were in

fact habeas claims. The district court stated that at least one of

those, Rochon v. Blackburn, No. 6:83-1685, was denied on the

merits, but stated that it had been dismissed without prejudice.

The district court did not include in the record of this appeal

pleadings from the case on which it was relying. By definition, a

case that is dismissed without prejudice to another action raising

the same issues cannot be an adjudication on the merits. The

record is therefore insufficient for this court to determine

whether the district court erred in finding that this subsequent

habeas application is successive. Accordingly, we VACATE the

dismissal and REMAND Rochon’s application to the district court for

additional proceedings. Rochon’s outstanding motions are DENIED.

VACATED and REMANDED; MOTIONS DENIED.