Dickinson v. State of Maine ( 1996 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          Misc. No. 96-8057



                                 NORMAN E. DICKINSON,



                                     Petitioner,



                                          v.



                                   STATE OF MAINE,



                                     Respondent.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
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               Norman E.  Dickinson on motion to file  second or successive
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          petition under 28 U.S.C.   2254 pro se.





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                                  December 12, 1996

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                      Per Curiam.  Petitioner has filed  a motion to file
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            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
1



            reasons stated in Camarano v. Irvin, 98 F.3d 44 (2d Cir. Oct.
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            22,  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.










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               1We do not  now decide  whether he has  in fact  exhausted
1

            state remedies, see Hatch v. State of Oklahoma, 92 F.3d 1012,
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            1016 (10th Cir. 1996), or whether the claims petitioner seeks

            to present are meritorious.



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