Lebling v. Secretary for the Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14279 January 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-01428 CV-T-23-MSS
KENNETH LEBLING,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF
CORRECTIONS, ATTORNEY GENERAL
OF FLORIDA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 18, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.
PER CURIAM:
Appellant filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254. The district court reviewed the petition and concluded: “Lebling represents
on page three in his petition that he had re-submitted a motion for post-conviction
relief to the state courts, which is still pending. Consequently, this action is
premature.” The district court then sua sponte dismissed the petition as premature.
A comparison of the claims raised in the §2254 petition and the then pending
state court motion demonstrates that those claims raised in the §2254 petition are
not involved or included in the claims raised in the state court matter.
Consequently, as the government concedes, it is apparent now that the claims in
Lebling’s §2254 petition were fully exhausted and ripe for review. The dismissal
was a result of a misunderstanding and error.
The government urges other grounds for our affirmance of the dismissal and
now suggests further discovery is necessary to determine if the petition is barred
for being successive. All of these arguments should be presented to the district
court in the first instance.
The order of dismissal is vacated and the matter remanded to the district
court for further consideration.
VACATED and REMANDED.
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