* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-20040

Summary Calendar

__________________

LEON TASBY,

 Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas Department

of Criminal Justice, Institutional Division,

 Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. CA-H-94-2571

- - - - - - - - - -

(April 20, 1995)

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Leon Tasby appeals a district court judgment dismissing his

petition for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254. Tasby requests a certificate of probable cause (CPC)

pursuant to Fed. R. App. P. 22(b) in his brief.

Tasby was convicted of aggravated robbery in 1983 and was

sentenced to life in prison. Tasby filed this, his second

federal petition for a writ of habeas corpus, alleging numerous
No. 95-20040

-2-

grounds of error. The respondent waived exhaustion because Tasby

had already been cited for abuse of the writ in state court and

requiring exhaustion would be futile. The respondent filed a

motion to dismiss, raising abuse of the writ under Rule 9(b) of

the Rules Governing § 2254 Cases. The district court granted the

respondent's motion to dismiss for abuse of the writ and

dismissed Tasby's petition.

Tasby argues that the district court did not give him

adequate notice that it was considering dismissing his petition

for abuse of the writ nor a reasonable opportunity to respond to

respondent's assertion of abuse of the writ.

 Tasby is correct. Although the respondent's motion put him

on notice that the state was raising abuse of the writ, this is

not sufficient by itself. The district court must give

petitioner specific notice 1) that it is considering dismissal;

2) that dismissal will be automatic if he does not respond and

explain his failure to raise new grounds in a prior petition; and

3) that in order to avoid dismissal, petitioner must present

facts, not opinions and conclusions. Urdy v. McCotter, 773 F.2d

652, 656 (5th Cir. 1985). These requirements can be fulfilled by

providing petitioner with a Rule 9(b) form, id., but the district

court did not give such notice to Tasby before granting

respondent's motion.

Failure to give the required notice can be harmless error if

there are no facts that the petitioner could allege to prevent

his claim from being dismissed under Rule 9(b). See Matthews v.

Butler, 833 F.2d 1165, 1170 n.8 (5th Cir. 1987), overruled on
No. 95-20040

-3-

other grounds by McCleskey v. Zant, 499 U.S. 467 (1991). In this

case, it is not clear that Tasby would be unable to allege facts

sufficient to prevent his parole eligibility claims from being

dismissed under Rule 9(b). The allegations in his petition do

not clearly show that his parole eligibility claims could have

been raised in his previous federal petition filed in 1988.

Tasby's argument that the district court could not have

examined the records in this case before granting the motion to

dismiss is moot because the district court will have the

opportunity to examine the records on remand.

CPC IS GRANTED, the district court's judgment IS VACATED,

and this case IS REMANDED for further proceedings.