UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-40771

Summary Calendar

J. D. STARLING,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Eastern District of Texas, Tyler

(6:96-CV-222)

June 3, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

BY THE COURT:

On March 11, 1996, Starling filed a petition under 28 U.S.C.

§ 2254 for a writ of habeas corpus in the United States District

Court for the Eastern District of Texas. This petition was

assigned to the magistrate judge who on April 12 ordered the State

to respond thereto. On June 4, 1996, the State filed a motion to

dismiss for abuse of the writ under McCleskey v. Zant, 499 U.S.
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467, 489, 111 S. Ct. 1454, 1467-68 (1991). Attached to this motion

to dismiss were copies of the Order of Dismissal and magistrate

judge’s report in a prior habeas corpus proceeding filed by

Starling in 1988 in the same federal district court. On June 14,

1996, the magistrate judge entered a Report and Recommendation that

the petition be dismissed without prejudice because this was

Starling’s second or successive petition for habeas corpus and

under the provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Starling was required to secure an

order from the appropriate Court of Appeals authorizing the

district court to consider such application. The district judge

adopted the Report and Recommendation of the magistrate judge and

entered an Order of Dismissal without prejudice on July 22, 1996.

Starling timely appealed. On November 26, 1996, a judge of this

Court entered an order granting Starling’s request for a

certificate of appealability "as to the district court’s

application of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) to his pending habeas corpus petition." In this same

order, the judge of this Court denied Starling’s motion for an

order authorizing the district court to consider a successive

habeas corpus application. In this same order, the judge of this

Court ordered that the briefing schedule in this case be held in

abeyance pending disposition of United States v. Cole, No. 96-

40567, as to the applicability of the Prison Litigation Reform Act
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of 1996, Pub. L. 104134, to a § 2254 appeal. By decision filed

December 9, 1996, another panel of this Court determined in United

States v. Cole, No. 96-40567, that the Prison Litigation Reform Act

of 1995 does not apply to habeas corpus proceedings. On March 31,

1997, the State filed a motion to dismiss this appeal for lack of

jurisdiction. On April 14, 1997, Starling filed a response to the

motion to dismiss this appeal which we have considered though late

filed. 

OPINION

We DENY the State’s motion to dismiss this appeal for lack of

jurisdiction. The inclusion of the phrase "at this time" in the

November 26, 1996, Order of another judge of this Court persuades

us that the denial of Starling’s motion for an order of this Court

authorizing the district court to consider a successive habeas

corpus application was not intended as a definitive ruling on the

merits of the issue of whether his current petition could satisfy

the requirements of 28 U.S.C. § 2244(b)(2). 

The effective date of AEDPA was April 24, 1996. Starling’s

petition for writ of habeas corpus now before us was filed prior to

that effective date. We do not read 28 U.S.C. § 2244(b)(3)(A) as

applying to petitions for writ of habeas corpus filed prior to the

effective date of AEDPA even though such petitions may be second or

successive habeas corpus petitions. Consequently, we find that the
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magistrate judge and district judge were in error in concluding

that an order from this Circuit Court permitting a second or

successive habeas corpus petition was required and in dismissing

without prejudice Starling’s petition. Accordingly, we VACATE and

REMAND this case to the district court for further consideration as

to the merits of such petition under § 2244(b)(1) and (2).