*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50626

Summary Calendar

_____________________

ROBERT ELLIS STRIPLIN,

Petitioner-Appellant,

versus

GARY JOHNSON, Director, Texas

Department of Criminal Justice

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________

July 30, 1997

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Robert Ellis Striplin appeals the district court’s decision to

dismiss his petition for a writ of habeas corpus on the ground that

Striplin had failed to obtain permission from this court to file a

“second or successive” petition, as required by 28 U.S.C. § 2244.

Striplin is currently in the custody of the State of Texas after

having been convicted in 1994 of the misapplication of fiduciary
2

property. Striplin argues that his June 1996 habeas petition was

not a “second or successive” petition. In order to appeal,

Striplin must obtain a certificate of appealability (“COA”)

pursuant to 28 U.S.C. § 2253(c), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (1996), which became effective before Striplin filed his

petition in the district court. Striplin has also moved this court

for leave to proceed in forma pauperis (“IFP”) on appeal.

In cases where the district court dismisses a petition on

procedural grounds, the COA analysis is a two-step process. First,

the court must consider whether the applicant has made a credible

showing that he can overcome the procedural bar or defect. If so,

the court next considers whether the underlying claim meets the

requirements for a COA by offering “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c). Tucker v.

Johnson, 115 F.3d 276, ___ (5th Cir. 1997); citing Murphy v.

Johnson, 110 F.3d 10 (5th Cir. 1997).

In this case, Striplin has made a credible showing that he can

overcome the procedural bar. Striplin asserts that his previous

habeas petition, filed in March 1995, challenged the revocation of

his parole, and therefore raised a “distinct and separate issue”

from the present petition. The fact that the two habeas petitions

raised different issues does not, of course, prevent the later-
3

filed petition from being “second or successive.” More to the

point, however, is that Striplin’s first petition challenged the

revocation of his parole on offenses of which he had previously

been convicted by a different state court. Because Striplin’s two

habeas petitions were based on different underlying convictions

imposed by different state courts in different years, Striplin has

made a credible showing that the district court’s dismissal of his

present petition as “second or successive” was erroneous.

We therefore turn to the underlying merits of Striplin’s

habeas petition, to determine whether he has made the showing

required for a COA. In his petition, Striplin argues that his

guilty plea was involuntary because the government breached its

plea agreement not to prosecute Striplin’s wife. Because

Striplin’s petition was immediately dismissed on procedural

grounds, the record does not contain a copy of the plea agreement,

or any findings of fact by the district court concerning the

veracity of Striplin’s allegations. For purposes of the COA, we

therefore take these allegations as true. If Striplin’s factual

assertions are true, Striplin’s guilty plea was obtained in

violation of his Fifth Amendment rights. Because Striplin’s appeal

is based upon a procedural issue only, and Striplin has met the

requirement for a COA with respect to at least one issue, we

decline to consider whether any other issues raised in the petition
1Although not contained in the record on appeal, this court

takes judicial notice of the contents of Striplin’s March 1995

petition, obtained from the clerk of the federal district court for

the Western District of Texas. See Fed. R. Evid. 201.

4

meet the COA standard, as these issues will not actually be

considered in this appeal.

Accordingly, we turn now to the merits of Striplin’s appeal,

which is based only upon the claim that the district court

erroneously dismissed his June 1996 habeas petition for failure to

obtain prior approval to file a second or successive petition. As

noted above, Striplin’s March 1995 habeas petition challenged the

revocation of his parole from incarceration for unrelated 1987 and

1988 convictions.1 These convictions and sentences were imposed by

the 205th Judicial District Court of El Paso County, Texas.

Striplin’s 1994 conviction and sentence for the misapplication of

fiduciary property was imposed by the 346th Judicial District Court

of El Paso County, Texas.

28 U.S.C. § 2244(b) does not define the term “second or

successive.” We have held, in accordance with our prior practice,

that petitions that are refiled after dismissal for failure to

exhaust state remedies are not “second or successive.” In re

Gasery, ___ F.3d ___, 1997 WL 348520 at *1 (5th Cir. 1997) (denying

motion for leave to file second or successive petition as

unnecessary). The underlying point, of course, is that the habeas
5

petitioner whose petition was dismissed on procedural grounds has

not yet been able to raise his habeas claims. In Striplin’s case,

the claims that he seeks to raise in his present petition could not

have been raised in his prior petition, and the rules governing

habeas petitions indicate that challenges to convictions or

sentences imposed by more than one state court must be raised in

separate petitions. See Rules Governing Section 2254 Cases,

Rule 2(d). Accordingly, we conclude that a petition that

challenges the judgment of one state court may not be said to be

“second or successive” to a prior petition challenging a different

conviction and sentence imposed by a different state court, as

under the applicable rules those claims could not have been raised

in a single petition. Striplin’s June 1996 habeas petition was

therefore not “second or successive” to his May 1995 petition, and

the district court’s decision dismissing the present petition on

this ground was incorrect.

Accordingly, Striplin’s request for a COA to appeal is

GRANTED. The judgment of the district court is REVERSED and the

case is REMANDED to the district court for that court to consider

in the first instance the state’s motion to dismiss for failure to

exhaust state remedies. Because we have concluded that Striplin’s

appeal is not frivolous, and because Striplin has properly applied
6

to proceed IFP, Striplin’s motion to proceed IFP on appeal is also

GRANTED.

COA GRANTED; MOTION TO PROCEED IFP GRANTED;

 REVERSED and REMANDED.