Filed December 3, 1996
Terry M. Turner, Aiea, HA, Pro Se.
Before: Harry Pregerson, Stephen Reinhardt and Thomas G. Nelson, Circuit Judges.
Petitioner has filed a motion for permission to file a successive habeas corpus petition in the district court pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, codified in relevant part at 28 U.S.C. § 2244(b)(3). Petitioner's motion was lodged in this court on October 28, 1996 pursuant to the pre-filing review order entered in docket no. 93-80158. We hold that section 2244 does not apply to second or subsequent habeas petitions where the first petition was dismissed without prejudice for failure to exhaust state remedies, and we deny petitioner's motion as unnecessary.
The petition which petitioner seeks to file in the district court raises the same claims raised in his prior petition, which was dismissed by the district court without prejudice for failure to exhaust state remedies. This court has previously held that a second or subsequent petition raising the same claims as a prior petition that has not been decided on the merits is not a successive petition. See Farmer v. McDaniel, ___ F.3d ___, 1996 WL 622777 at 8 (9th Cir. October 29, 1996) (where first petition was dismissed without prejudice for failure to exhaust, second petition raising same claims is not successive petition).
This court has not decided whether 28 U.S.C. § 2244(b)(3), as amended by the 1996 Act, applies to second or subsequent petitions where the same claims have previously been dismissed without prejudice for failure to exhaust. See Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996) (permission to file successive petition under Anti-Terrorism Act not required where first petition dismissed for failure to exhaust). We hold that it does not.
Consequently, petitioner may file his petition in the district court without prior permission from this court, and the motion is denied as unnecessary.