December 12, 1996
Appeal from the United States District Court for the District of Maine, [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge].
Before: Selya, Boudin and Lynch, Circuit Judges.
Petitioner has filed a motion to file a second or successive petition under 28 U.S.C. §(s) 2244(b).
Petitioner's first Section(s) 2254 petition, filed in 1992, was dismissed for failure to exhaust state remedies. Petitioner has since pursued various state remedies and now asserts that he has exhausted state remedies. For the reasons stated in Camarano v. Irvin, 98 F.3d 44 (2d Cir. Oct. 22, 1996), we conclude that in these circumstances petitioner's present Section(s) 2254 petition is not a second or successive petition within the meaning of 28 U.S.C. §(s) 2244(b). Consequently, petitioner is not required to obtain permission from this court to file his present Section(s) 2254 petition in the district court.
We do not now decide whether he has in fact exhausted state remedies, see Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th Cir. 1996), or whether the claims petitioner seeks to present are meritorious.
We note that the district court struck petitioner's present 2254 petition under the mistaken impression that petitioner had to obtain permission to file from this court before the district court could entertain the petition. As we have now determined that permission is not required because the earlier petition was dismissed for failure to exhaust state remedies, petitioner may now refile his Section(s) 2254 petition in the district court.