United States Court of Appeals

for the Fifth Circuit

No. 19-51160

Kirk Wayne McBride, Sr., 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Western District of Texas

No. 5:18-CV-831

Before Jolly, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Kirk Wayne McBride is a Texas inmate serving a 99-year sentence. 

He was on parole beginning in 2014, but parole was revoked in 2017. 

McBride filed two federal habeas petitions, about eight months apart, 

challenging aspects of the parole revocation. The district court dismissed the 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2022

Lyle W. Cayce

Clerk

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first petition with prejudice and eventually dismissed the second petition as 

impermissibly “successive” under 28 U.S.C. § 2244(b)(3). Because 

McBride’s first habeas petition should have been dismissed without 

prejudice instead of with prejudice, the subsequent petition was not 

successive. We therefore VACATE the decision of the district court and 

REMAND for further proceedings consistent with this opinion. 

In 1995, McBride was convicted of aggravated sexual assault as a 

habitual offender and was sentenced to 99 years of confinement. He was 

paroled in 2014, but in 2017 the parole board held three separate parole 

proceedings. At the first one, in March 2017, the board held a hearing to 

determine what action to take in light of a positive drug test. The board chose 

not to revoke parole at that time, but it placed McBride in an Intermediate 

Sanction Facility for drug treatment. Only four days after his release from 

that facility, McBride failed another drug test. Thus, at a July 2017 hearing, 

the board decided to revoke his parole. Finally, in November 2017, the board 

reopened the proceedings only to allow the parole officer to present a signed 

“Notice of Special Condition” and to reaffirm the prior parole revocation. 

McBride filed three separate habeas applications in Texas state court, 

challenging various aspects of the parole proceedings. The Texas Court of 

Criminal Appeals denied each of the applications.

In December 2017, McBride filed his first federal habeas petition. In 

it, he challenged only aspects of the March 2017 parole proceedings which 

resulted in his being placed in drug treatment. In July 2018, the district court 

dismissed the petition with prejudice for lack of jurisdiction, explaining that 

the petition became moot when McBride was released from treatment and 

went back on parole. The district court also found that the petition had not 

been properly exhausted and was meritless. McBride sought a certificate of 

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appealability from this court, which was denied. Order at 1–2, McBride v. 

Davis, No. 18-50782 (5th Cir. May 2, 2019).

McBride filed the habeas petition central to this case in August 2018. 

In it, he challenged the July 2017 and November 2017 parole proceedings. 

The district court dismissed the petition without prejudice, finding that 

because McBride could have raised the claims in the first federal habeas 

petition, the subsequent petition was “successive” and the court thus lacked 

jurisdiction to consider it. McBride sought a certificate of appealability, 

which this court granted in part and denied in part. Order at 1–3, McBride v. 

Lumpkin, No. 19-51160 (5th Cir. Mar. 9, 2021).

The question we must answer is whether McBride’s second federal 

habeas petition under 28 U.S.C. § 2254 was an unauthorized “successive” 

petition.1 Both parties agree that it is not. We agree as well, and so the district 

court erred by dismissing that petition for lack of jurisdiction.

We review de novo the dismissal of a § 2254 habeas application on 

procedural grounds. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).

Section 2244(b) limits the consideration of second or subsequent 

habeas petitions in federal court. Section 2244(b)(3)(A) requires a petitioner 

to get authorization from the court of appeals before filing a second or 

subsequent habeas application, and the application will be dismissed unless 

the petitioner can satisfy one of the statutory exceptions to the bar against 

subsequent petitions. 28 U.S.C. § 2244(b). If a petitioner fails to surmount 

that § 2244(b) hurdle, the district court lacks jurisdiction to consider his 

habeas petition. See Burton v. Stewart, 549 U.S. 147, 149 (2007). 

1 McBride raises other issues in his appeal, but because this court granted a 

certificate of appealability only for this issue, we do not consider the other issues.

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But not every habeas petition filed after a first petition is 

impermissibly successive. Indeed, if a prior petition is dismissed without

prejudice, a subsequent petition need not clear the § 2244(b) bar before the 

district court has jurisdiction to consider it. See Slack v. McDaniel, 529 U.S.

473, 489 (2000) (explaining that a habeas petition filed after a previous 

petition was dismissed without an adjudication on the merits is not “second 

or successive”); see also In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997)

(explaining that “a habeas petition refiled after dismissal without 

prejudice . . . is merely a continuation of [the] first collateral attack, not a 

‘second or successive’ petition within the meaning of § 2244(b)”).

In this case, the district court dismissed McBride’s first federal habeas 

petition with prejudice. But it was wrong to do so.2 Once the district court 

found that the first petition was moot, it lacked jurisdiction to consider it 

further. Thus, when it determined that the petition was moot, it should have 

dismissed the petition without prejudice—because to dismiss with prejudice 

is to make a determination on the merits. Griener v. United States, 900 F.3d 

700, 706 (5th Cir. 2018) (modifying the judgment to dismiss the claims 

without prejudice and explaining that “[b]ecause the district court lacked 

jurisdiction[,] . . . it was without authority to dismiss the claims with 

prejudice because a dismissal with prejudice is a final judgment on the merits 

of a case” (internal quotation omitted)).

Because McBride’s first federal habeas petition should have been 

dismissed without prejudice instead of with prejudice, his second petition 

2 Although the dismissal of the first petition is not before this court, we may 

nonetheless “examine the jurisdiction of the federal court that heard [the] first habeas 

petition” in determining whether the second is successive. Herbst v. Scott, 42 F.3d 902, 

905 (5th Cir. 1995).

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was not impermissibly “second or successive” under 28 U.S.C. § 2244(b).

3

 

We therefore VACATE the decision of the district court that dismissed the 

petition for lack of jurisdiction, and we REMAND to that court for further 

proceedings.

3 Because we conclude that the petition is not successive—on the ground that the 

first petition should have been dismissed without prejudice—we do not consider whether 

we would reach the same conclusion based on the fact that the later petition challenges 

separate parole proceedings from those challenged in the first petition.

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