*After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 ar gument. 

## 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.-2-

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' compla int as both a civil rights claim pursuant to 28 U.S.C. § 1983 (1994) and an ap plication for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994), amended bythe Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 10 4-132, 110 Stat. 1214 (1996). The court then dismissed both aspects of Mr. McWill iams' 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 "impos ition 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 pl ea bargain agreement, that he was released from prison after serving twenty month s, 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 parol e amendment into effect." Mr. McWilliams contends that, absent effect of the "ex post facto" law, his sentence was discharged on November 4, 1988, regard less of whether he was in prison or parole. Mr. McWilliams also alleges he w as charged with a parole-3-

violation in July of 1989, and that he was subseque ntly arrested for felony eluding, convicted, and sentenced to ten years incarceration. Mr. McWilliams asserts his sentence for the felony eluding convict ion 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 offen se. He seeks damages, declaratory relief and an order directing the Color ado 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 allegatio ns in a prior suit against Governor Romer and the Colorado Parole Boar d. See McWilliams v. Romer , No. 94-S-2671 (D. Colo. May 10, 1995) (unpublishe d 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 ap plication 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.-4-

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 bythe Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), in cons idering that portion of his complaint it construed as a § 1983 action. Section1915(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 dis trict 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-5-

duplicative of his earlier action, and therefore wa s appropriately dismissed as frivolous under § 1915(e). However, we note Mr. Mc Williams has added the State of Colorado as a defendant and omitted the Co lorado Board of Parole. In its order finding Mr. McWilliams' present action duplic ative 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 § 19 83 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 shou ld be dismissed pursuant to § 1915(e) regardless of whether it is repetitive, whi ch 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 o n any grounds for which there is a record sufficient to permit conclusions of law, e ven grounds not relied upon by the district court." (Internal quotation marks omi tted.)).

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 bythe Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104- 132, 110 Stat. 1214 (1996), the district court dism issed that portion of Mr.-6-

McWilliams' complaint it had construed as an applic ation for a writ of habeas corpus. Section 2241(b)(1) states: "A claim prese nted in a second or successive habeas corpus application under section 2254 that w as presented in a prior application shall be dismissed." We find the distr ict court's dismissal was error.
Under the district court's interpretation of amende d §§ 2244 and 2254, a litigant who fails to completely exhaust state reme dies prior to seeking a writ of habeas corpus will be forever barred from obtainingthe writ. The requirement that petitioners exhaust their state law remedies p rior 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 "secon d 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-7-

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 tak en further state law action since his prior suit. However, we leave to the dis trict 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.