*

 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 11 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL McWILLIAMS,

Plaintiff-Appellant,

v.

STATE OF COLORADO; ROY

ROMER,

Defendants-Appellees.

No. 96-1328

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 96-S-1145)

Submitted on the briefs.*

Paul McWilliams, pro se.

Before BRORBY, EBEL and KELLY, Circuit Judges.

BRORBY, Circuit Judge.
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Plaintiff-Appellant Paul McWilliams initiated this pro se action while he

was a prison inmate in the custody of the Colorado Department of Corrections. 

The district court construed Mr. McWilliams' complaint as both a civil rights

claim pursuant to 28 U.S.C. § 1983 (1994) and an application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 (1994), amended by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996). 

The court then dismissed both aspects of Mr. McWilliams' complaint, which

dismissal Mr. McWilliams now appeals. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 (1994).

Mr. McWilliams is suing for his "wrongful incarceration" caused by the

State of Colorado and State Governor Romer's "imposition of an ex post facto

statute." Mr. McWilliams alleges he was sentenced to a term of two years

incarceration on November 4, 1986, pursuant to a plea bargain agreement, that he

was released from prison after serving twenty months, and that he was then placed

on parole for eighteen months. Mr. McWilliams further alleges that on July 1,

1987, Governor Romer signed "an ex post facto parole amendment into effect." 

Mr. McWilliams contends that, absent effect of the "ex post facto" law, his

sentence was discharged on November 4, 1988, regardless of whether he was in

prison or parole. Mr. McWilliams also alleges he was charged with a parole
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violation in July of 1989, and that he was subsequently arrested for felony

eluding, convicted, and sentenced to ten years incarceration. Mr. McWilliams

asserts his sentence for the felony eluding conviction was increased because of

his parole status and would have been for a period of only five years if he had not

been "illegally" on parole at the time of the offense. He seeks damages,

declaratory relief and an order directing the Colorado courts to vacate and set

aside both the criminal conviction for which he was sentenced in 1986 and the

felony eluding conviction.

Mr. McWilliams made substantially similar allegations in a prior suit

against Governor Romer and the Colorado Parole Board. See McWilliams v.

Romer, No. 94-S-2671 (D. Colo. May 10, 1995) (unpublished decision). There

too, the district court interpreted Mr. McWilliams' complaint as both a 42 U.S.C.

§ 1983 civil rights claim and a 28 U.S.C. § 2254 application for a writ of habeas

corpus. The district court found the § 1983 claim to be legally frivolous, and

dismissed it pursuant to 28 U.S.C. § 1915(d) (1994). It also dismissed Mr.

McWilliams' habeas petition pursuant to 28 U.S.C. § 2254 (1994) for failure to

exhaust state remedies.
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In this case, because Mr. McWilliams proceeded in forma pauperis, the

district court looked to the federal in forma pauperis statute, 28 U.S.C. § 1915

(1994), amended by the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (1996), in considering that portion of his

complaint it construed as a § 1983 action. Section 1915(e)(2) requires a court to

dismiss sua sponte any in forma pauperis action that is frivolous or malicious. 

"[R]epetitious litigation of virtually identical causes of action" may be dismissed

under § 1915 as frivolous or malicious. Bailey v. Johnson, 846 F.2d 1019, 1021

(5th Cir. 1988) (internal quotation marks omitted); see also Cochran v. Morris, 73

F.3d 1310, 1317 (4th Cir. 1996) ("Section 1915(d) [the precursor of present

§ 1915(e)] is aimed at the dismissal of 'frivolous, malicious, or repetitive

lawsuits.'" (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). The district

court found Mr. McWilliams' § 1983 claim consisted of the same allegations he

made in McWilliams v. Romer. Accordingly, it dismissed his § 1983 claim as

frivolous pursuant to § 1915(e). We review the district court's § 1915(e)

dismissal for an abuse of discretion. See Schlicher v. Thomas, 111 F.3d 777, 779

(10th Cir. 1997).

We agree with the district court that, at least as regards Mr. McWilliams'

§ 1983 claim against Governor Romer, Mr. McWilliams' present suit is
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duplicative of his earlier action, and therefore was appropriately dismissed as

frivolous under § 1915(e). However, we note Mr. McWilliams has added the

State of Colorado as a defendant and omitted the Colorado Board of Parole. In its

order finding Mr. McWilliams' present action duplicative of his prior suit, the

district court failed to address this distinction. In any event, under the Eleventh

Amendment the State of Colorado is immune from § 1983 claims. Pride v. Does,

997 F.2d 712, 715 (10th Cir. 1993). Accordingly, Mr. McWilliams' § 1983 claim

against the State of Colorado is frivolous and should be dismissed pursuant to §

1915(e) regardless of whether it is repetitive, which issue we therefore do not

address. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)

("We are free to affirm a district court decision on any grounds for which there is

a record sufficient to permit conclusions of law, even grounds not relied upon by

the district court." (Internal quotation marks omitted.)).

We now turn our attention to Mr. McWilliams' 28 U.S.C. § 2254 habeas

application. The district court found Mr. McWilliams' present habeas claim was

the same as in his prior suit, McWilliams v. Romer, which was dismissed for

failure to exhaust state remedies. Pursuant to 28 U.S.C. § 2244(b)(1), amended

by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214 (1996), the district court dismissed that portion of Mr.
-6-

McWilliams' complaint it had construed as an application for a writ of habeas

corpus. Section 2241(b)(1) states: "A claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior

application shall be dismissed." We find the district court's dismissal was error.

Under the district court's interpretation of amended §§ 2244 and 2254, a

litigant who fails to completely exhaust state remedies prior to seeking a writ of

habeas corpus will be forever barred from obtaining the writ. The requirement

that petitioners exhaust their state law remedies prior to seeking a federal habeas

writ serves federal/state comity, Rose v. Lundy, 455 U.S. 509, 518 (1982). The

district court's ruling takes that requirement far beyond its purpose. We instead

accept the view espoused by every circuit that has considered this issue since

enactment of the Antiterrorism and Effective Death Penalty Act: a habeas

petition filed after a prior petition is dismissed without prejudice for failure to

exhaust state remedies does not qualify as a "second or successive" application

within the meaning of § 2244(b)(1). See In re Gasery, 116 F.3d 1051, 1051 (5th

Cir. 1997); Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997); Benton v.

Washington, 106 F.3d 162, 164 (7th Cir. 1996); In re Turner, 101 F.3d 1323 (9th

Cir. 1996) (as amended 1997); Dickinson v. Maine, 101 F.3d 791 (1st Cir. 1996);

Camarano v. Irvin, 98 F.3d 44, 45-46 (2d Cir. 1996). Rather, it is simply a
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continuation of the earlier petition. Gasery, 116 F.3d at 1052; Benton, 106 F.3d

at 164.

Accordingly, we hold that portion of Mr. McWilliams' pleadings the district

court construed as a petition for a writ of habeas corpus was not a "second or

successive" habeas application. Therefore the district court's dismissal of Mr.

McWilliams' habeas petition pursuant to § 2244(b)(1) was error. In so holding,

we note the record indicates Mr. McWilliams has taken further state law action

since his prior suit. However, we leave to the district court the determination of

whether Mr. McWilliams has in fact exhausted state remedies. See Dickinson,

101 F.3d at 791 n.1 (citing Hatch v. Oklahoma, 92 F.3d 1012, 1016 (10th Cir.

1996)).

We AFFIRM the district court's dismissal of Mr. McWilliams' § 1983

claim.

We REVERSE and REMAND the district court's dismissal of Mr.

McWilliams' § 2254 application for a writ of habeas corpus for such further

proceedings as may be just and proper.