1 We offer no opinion as to whether Gasery has in fact exhausted his

remedies in state court. See Dickinson v. State of Maine, 101 F.3d 791, 791 n.1

(1st Cir. 1996) (citing Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th Cir.

1996), for proposition that exhaustion is not precondition to consideration of

motion to file successive petition).

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-00226

(Summary Calendar)

_________________

IN RE: LYONELL GASERY,

Petitioner.

Motion for Authorization to file 

a Successive Habeas Corpus Petition with the

United States District Court for the

 Southern District of Texas

June 20, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:

Petitioner Lyonell Gasery, a Texas state prisoner, has moved

to file a second or successive habeas corpus petition pursuant to

28 U.S.C. § 2244(b). The district court dismissed Gasery’s first

habeas petition without prejudice for failure to exhaust state

remedies as to certain, but not all, of the claims presented. See

Rose v. Lundy, 455 U.S. 509, 520-21, 102 S. Ct. 1198, 1204-05, 71

L. Ed. 2d 379 (1982) (holding that district court should dismiss,

without prejudice, habeas petition containing both exhausted and

unexhausted claims). Gasery has since attempted to exhaust his

state remedies,1 and now seeks leave to refile his petition,
 

2 Specifically, the Court of Appeals may authorize a second or

successive petition only if the claims presented satisfy § 2244(b)(1) and (2):

(b)(1) A claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed.

 (2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless))

(A) the applicant shows that the claim relies on a new

rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of

due diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing

evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant

guilty of the underlying offense. 

28 U.S.C. § 2244(b).

-2-

asserting the same claims as before. 

Gasery’s motion presents an issue of first impression in this

circuit))whether a petitioner seeking to refile a habeas corpus

petition after prior dismissal without prejudice for failure to

exhaust state remedies must comply with the new provisions of the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA” or “Act”),

Pub. L. 104-132, 110 Stat. 1214 (1996). The AEDPA amends 28 U.S.C.

§ 2244 to forbid any “second or successive” petition for collateral

relief without the consent of the court of appeals, which may be

granted only in limited circumstances. 28 U.S.C. § 2244(b)(3).2

Section 2244(b) does not define “second or successive”

petition. The specific language in the Act is derived from Rule

9(b), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254,

which states that “[a] second or successive petition may be

dismissed if . . . it fails to allege new or different grounds for
-3-

relief and the prior determination was on the merits or, if new and

different grounds are alleged, . . . the failure of the petitioner

to assert those grounds in a prior petition constituted an abuse of

the writ.” Although the AEDPA’s amendment to § 2244 imposes

stricter requirements for “second or successive” petitions than the

pre-AEDPA “abuse of the writ” standard in Rule 9(b), nothing in the

AEDPA affects the determination of what constitutes a “second or

successive” petition. Benton v. Washington, 106 F.3d 162, 164 (7th

Cir. 1996). 

Prior to passage of the AEDPA, we consistently concluded that

petitions that were refiled after dismissal for failure to exhaust

state remedies were not “second or successive” petitions for Rule

9(b) purposes. Woods v. Whitley, 933 F.2d 321, 322 (5th Cir. 1991)

(disregarding prior petition that had been dismissed without

prejudice); Jones v. Estelle, 722 F.2d 159 (5th Cir. 1983) (en

banc) (noting that “[a] petitioner who has both exhausted and

unexhausted claims faces no ultimate barrier to the federal

prosecution of all his claims [and] can obtain dismissal of his

federal writ, completely exhaust his claims, and, if unsuccessful,

return to federal court”), cert. denied, 466 U.S. 976, 104 S. Ct.

2356, 80 L. Ed. 2d 829 (1984); cf. Pryor v. Beto, 460 F.2d 306, 306

(5th Cir. 1972) (holding, prior to adoption of Rule 9(b), that

refiling of § 2254 petition that had been dismissed for failure to

exhaust state remedies was not barred as “successive”). Moreover,

since passage of the AEDPA, the First, Second, Seventh, and Ninth

Circuits have concluded that a habeas petition refiled after
-4-

dismissal without prejudice is neither second nor successive.

Benton, 106 F.3d at 164-65; In re Turner, 101 F.3d 1323, 1323 (9th

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

Camarano v. Irvin, 98 F.3d 44, 46-48 (2d Cir. 1996). We agree and

conclude that Gasery’s refiled petition is merely a continuation of

his first collateral attack, not a “second or successive” petition

within the meaning of § 2244(b). See Benton, 106 F.3d at 164 (“The

sequence of filing, dismissal, exhaustion in state court, and

refiling . . . might generate multiple docket numbers, but it would

not be right to characterize it as successive collateral

attacks.”). 

For the foregoing reasons, we DENY Gasery’s motion as

unnecessary. Gasery may file his petition directly in the district

court.