Turner, In re, 96-80418
Decision Date | 03 December 1996 |
Docket Number | No. 96-80418,96-80418 |
Citation | 101 F.3d 1323 |
Parties | 96 Cal. Daily Op. Serv. 8714, 96 Daily Journal D.A.R. 14,425 In re Terry M. TURNER, Petitioner. |
Court | U.S. Court of Appeals — Ninth Circuit |
Terry M. Turner, Aiea, HA, Pro Se.
Before: PREGERSON, REINHARDT and T.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 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) ( ). 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.
To continue reading
Request your trial-
Contreras v. Rice, CV 97-2120-JGD(RC).
...3. This dismissal does not make the instant habeas corpus petition a second or successive petition under 28 U.S.C. § 2244. In re Turner, 101 F.3d 1323 (9th Cir.1996). 4. This Court recognizes that the AEDPA modified the circumstances under which a federal court may grant an evidentiary hear......
-
U.S. v. Barrett
..."are not implicated when a petition is filed after a prior petition is dismissed for lack of exhaustion"); In re Turner, 101 F.3d 1323, 1323 (9th Cir.1997) (per curiam) (noting that petitioner is raising the same claims that he raised in the prior petition that was dismissed for lack of exh......
-
Whaley v. Thompson
...state remedies. Although the prior petition does not count for purposes of the rule barring successive § 2254 petitions, In re Turner, 101 F.3d 1323 (9th Cir.1996), that does not mean the present petition relates back to the one filed five years earlier. In short, the instant petition was n......
-
Espinosa v. Foulk, Case No. 1:13-cv-01191-LJO-SKO-HC
...set forth in 28 U.S.C. § 2244(b) from returning to federal court after Petitioner exhausts available state remedies. See, In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, this does not mean that Petitioner will not be subject to the one-year statute of limitations imposed by 28 U.S.C. ......