Justia Federal District Court Opinions

Petitioner has filed a motion to file a second or successive petition under 28 U.S.C. § 2244(b).

Petitioner's first § 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.¹ For the reasons stated in Camarano v. Irvin, 98 F.3d 44 (2d Cir.1996), we conclude that in these circumstances petitioner's present § 2254 petition is not a second or successive petition within the meaning of 28 U.S.C. § 2244(b). Consequently, petitioner is not required to obtain permission from this court to file his present § 2254 petition in the district court.

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 § 2254 petition in the district court.