UNITED STATES COURT OF APPEALS TENTH CIRCUIT

RAMON HARO-ARTEAGA Petitioner,
v. UNITED STATES OF AMERICA Respondent. No. 99-4201 (D.C. No. 99-CV-593) (D. Utah)

ORDER Filed December 28, 1999
Before HENRY, LUCERO and MURPHY , Circuit Judges
On the court’s own motion, the December 15, 1999 or der disposing of this matter shall be published. A copy of the published order is attached. Entered for the Court Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAMON HARO-ARTEAGA Petitioner,
v. UNITED STATES OF AMERICA Respondent. No. 99-4201 (D.C. No. 99-CV-593) (D. Utah)

ORDER

Before HENRY, LUCERO and MURPHY , Circuit Judges
This matter is before the court on the transfer by the district court of Ramon Haro-Arteaga’s 28 U.S.C. § 2255 motion, the subsequ ent motion for permission to file a successive § 2255 motion in the district cou rt, and the government’s response. See Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997). The issue presented is whether the motion which Mr. Haro-Arteaga seek s to file in the district court should be treated as a second or successive m otion under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We de termine that the motion is not a second or successive motion and remand the matterto the district court.2

Mr. Haro-Arteaga seeks to challenge his 1995 convic tion and sentence entered by the District of Utah for distribution of a contr olled substance. Mr. Haro-Arteaga has filed two previous § 2255 moti ons. The first was filed on March 28, 1996. In that proceeding, the governm ent filed its response on June 3, 1996. Mr. Haro-Arteaga filed a motion to withdr aw on June 24 stating that “several of his grounds for relief are improperly p resented in his presently submitted Motion to Vacate Sentence, and that the presently s ubmitted Motion omits other valid grounds which Movant would also care to raise .” The court granted the motion on June 28. The second motion was filed on March 26, 1997. The government filed its response on June 13, 1997. On July 31, the district court ord ered Mr. Haro-Arteaga to file a responsive pleading by August 22. On Jan uary 1, 1998, the district court ordered Mr. Haro-Arteaga to show cause by February 9 as to why his motion should not be dismissed for failure to respond to the July31 order. On February 6, Mr. Haro-Arteaga filed an unopposed notice of voluntarydismissal stating that he was making the motion to “avoid any delay in his pendin g transfer application to Mexico.” The matter was closed on February 10 by t he district court pursuant to the voluntary dismissal. Mr. Haro-Arteaga then filed a § 2255 motion on Augu st 2, 1999 and one on August 27. The magistrate judge to whom the matter s had been referred consolidated3

the motions and transferred them to this court purs uant to Coleman
. The government argues that the § 2255 motions filedin 1996 and 1997 should count as prior motions under AEDPA, that this is a successive motion, and therefore Mr. Haro-Arteaga must meet the requirements set forth in AEDPA to file a successive motion. We disagree. In upholding the gatekeeping function of the courts of appeals set forth in AEDPA, the Supreme Court noted that, as to similar restrictions on § 2254 petitions, “[t]he new restrictions on successive petitions con stitute a modified res judicata rule, a restraint on what is called in habeas practice ‘a buse of the writ.’” Felker v. Turpin , 518 U.S. 651, 664 (1996). In Stewart v. Martinez-Villareal , 523 U.S. 637, 118 S.Ct. 1618 (1998), the Court was presented with the issue of whether a § 2254 petition was successive where the only claim being presented hadbeen dismissed as premature and unripe in a prior § 2254 petition, although the rest of the earlier petition had been resolved on the merits. The Court held that t he second petition was not second or successive for purposes of AEDPA. Part of the C ourt’s rationale was that those claims “would not be barred under any form of res j udicata.” Id . 118 U.S. at 1622. Accordingly, this court, as well as the other circu its, have followed the preAEDPA cases on abuse of the writ to determine wheth er a petition is second or successive for purposes of AEDPA. See Tapia v. LeMaster , 172 F.3d 1193, 1195 (10th Cir. 1999), cert. denied, 120 S.Ct. 192 (1999); United States v. Scott , 124 F.3d4

1328, 1329 (10th Cir. 1997); Reeves v. Little , 120 F.3d 1136, 1138-39 (10th Cir. 1997). The following types of cases have been held not to be subject to the gatekeeping restrictions: where the previous petitions have been dismissed without prejudice for failure to exhaust state remedies, see , e.g. , McWilliams v. Colorado , 121 F.3d 573, 575 (10th Cir. 1997); where the firs t post-conviction remedy was used solely to reinstate the right to a direct appeal, see , e.g. , United States v. Scott , 124 F.3d at 1330; where the first petition was dismissed forfailure to pay the filing fee,

see , e.g. , Benton v. Washington , 106 F.3d 162, 164-65 (7th Cir. 1996); where the first § 2255 motion is dismissed without prejudice because it was filed while the direct criminal appeal was pending, see Flores v. United States , No. 97-8080, 1997 WL 525596 (8th Cir. 1997) (unpublished disposition) ; and where the first petition is returned for being insufficient for failing to c omply with the Rules Governing Section 2244 Cases or Rules Governing Section 2255 Proceedings, see O’Connor v. United States , 133 F.3d 548, 550 (7th Cir. 1998). The Seventh Circuit appears to be the only circuit to have dealt with the situation where the previously filed petitions have been voluntarily withdrawn. In Felder v. McVicar , 113 F.3d 696 (7th Cir. 1997), a case relied on by the government, the earlier petition had been dismissed without pre judice upon a voluntary motion to dismiss filed before a ruling on the merits but aft er the district court had set a date for an evidentiary hearing. The court held that th e second, identical petition was5

successive because the petitioner had moved to dism iss the first as soon as it became evident that the district court was going to dismis s on the merits. The petitioner’s attorney conceded defeat in her motion to withdraw as she had admitted that she would be unable to sustain the petitioner’s burden of proof at the upcoming hearing. See also Hurd v. Mondragon , 851 F.2d 324 (10th Cir. 1988) (holding, in a preAEDPA case, that the district court did not abuse i ts discretion in refusing to dismiss without prejudice a § 2254 petition which counsel attempted to withdraw after the magistrate judge had filed findings and recommendedthat the petition be dismissed). In Garrett v. United States , 178 F.3d 940 (7th Cir. 1999), the Seventh Circuit , however, limited Felder . The court determined that a § 2255 motion filed aftertwo earlier motions had been voluntarily dismissed was not a second or successive motion. The first motion was withdrawn after the government had filed its response but before the movant had received the response. The basis of the withdrawal was that the motion was the “‘artless’” effort of a layperson without legal training.” Garrett , 178 F.3d at 941. The second motion was withdrawn fo ur months after it was filed, but before the government filed its response. The movant again asserted that he needed someone with legal training to help him clarify the issues for presentation. The court distinguished Felderby noting that, unlike in Felder , the movant never conceded defeat. The court held:

Our cases have required that, in order for a habeas petition to be considered successive, the previous motion mu st6 have been denied on the merits. The district courtmust have engaged in substantive review. Garrett , 178 F.3d at 942. We agree with the reasoning of Garrett . Accordingly, because none of the earlier motions filed by Mr. Haro-Arteaga conceded any claim or were decided on the merits or after the district court engaged in s ubstantive review, the present motion is not subject to the gatekeeping provisions of AEDPA. The district court order is VACATED and the matter is REMANDED to the district court for further proceedings consistent w ith this order.

ENTERED FOR THE COURT PER CURIAM