Serafin Flores v. United States ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
___________
No. 97-8080
___________
Serafin Flores, *
*
Petitioner, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa
*
United States of America, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: August 20, 1997
Filed: August 26, 1997
___________
Before BEAM, MORRIS SHEPPARD ARNOLD, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Serafin Flores, a federal prisoner, appeals from a district court1
order dismissing a second 28 U.S.C. § 2255 motion because Flores had not
sought certification from this court prior to filing the motion. We
reverse and remand.
A jury found Flores guilty of conspiracy to distribute
methamphetamine. While
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
Flores&s direct appeal was pending before this court, a 28 U.S.C. § 2255
motion was filed in the district court on behalf of Flores.2 Finding that
it lacked jurisdiction to review the § 2255 motion while the direct appeal
was pending, the district court dismissed the motion without prejudice to
Flores&s right to file a § 2255 motion if his conviction was affirmed.
Subsequently, this court dismissed the direct appeal as untimely filed.
United States v. Flores, No. 95-3123, 1996 W.L. 102420 (8th Cir. March 11,
1996) (unpublished per curiam). After the Anti-terrorism and Effective
Death penalty Act was enacted, Flores filed the second § 2255 motion in the
district court. The court dismissed the second motion because Flores had
not sought certification from this court pursuant to 28 U.S.C. § § 2255
and 2244(b).
We hold that a habeas petition which is filed after a prior petition
has been dismissed without prejudice does not qualify as “second or
successive” habeas application within the meaning of § § 2255 and 2244(b).
See McWilliams v. Colorado, ___ F.3d ___, 1997 WL 452575 at *2 (10th Cir.
August 11, 1997) (collecting cases holding that 28 U.S.C. § 2254 habeas
petition filed after prior petition was dismissed without prejudice for
failure to exhaust state remedies is not “second or successive” petition
within meaning of 28 U.S.C. § 2244(b)(1)). Accordingly, we reverse the
decision of the district court and remand for further proceedings.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
Flores maintains that he did not authorize the filing of the first § 2255 motion.