UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40771
Summary Calendar
J. D. STARLING,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas, Tyler
(6:96-CV-222)
June 3, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
BY THE COURT:
On March 11, 1996, Starling filed a petition under 28 U.S.C.
§ 2254 for a writ of habeas corpus in the United States District
Court for the Eastern District of Texas. This petition was
assigned to the magistrate judge who on April 12 ordered the State
to respond thereto. On June 4, 1996, the State filed a motion to
dismiss for abuse of the writ under McCleskey v. Zant, 499 U.S.
467, 489, 111 S. Ct. 1454, 1467-68 (1991). Attached to this motion
to dismiss were copies of the Order of Dismissal and magistrate
judge’s report in a prior habeas corpus proceeding filed by
Starling in 1988 in the same federal district court. On June 14,
1996, the magistrate judge entered a Report and Recommendation that
the petition be dismissed without prejudice because this was
Starling’s second or successive petition for habeas corpus and
under the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Starling was required to secure an
order from the appropriate Court of Appeals authorizing the
district court to consider such application. The district judge
adopted the Report and Recommendation of the magistrate judge and
entered an Order of Dismissal without prejudice on July 22, 1996.
Starling timely appealed. On November 26, 1996, a judge of this
Court entered an order granting Starling’s request for a
certificate of appealability "as to the district court’s
application of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) to his pending habeas corpus petition." In this same
order, the judge of this Court denied Starling’s motion for an
order authorizing the district court to consider a successive
habeas corpus application. In this same order, the judge of this
Court ordered that the briefing schedule in this case be held in
abeyance pending disposition of United States v. Cole, No. 96-
40567, as to the applicability of the Prison Litigation Reform Act
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of 1996, Pub. L. 104134, to a § 2254 appeal. By decision filed
December 9, 1996, another panel of this Court determined in United
States v. Cole, No. 96-40567, that the Prison Litigation Reform Act
of 1995 does not apply to habeas corpus proceedings. On March 31,
1997, the State filed a motion to dismiss this appeal for lack of
jurisdiction. On April 14, 1997, Starling filed a response to the
motion to dismiss this appeal which we have considered though late
filed.
OPINION
We DENY the State’s motion to dismiss this appeal for lack of
jurisdiction. The inclusion of the phrase "at this time" in the
November 26, 1996, Order of another judge of this Court persuades
us that the denial of Starling’s motion for an order of this Court
authorizing the district court to consider a successive habeas
corpus application was not intended as a definitive ruling on the
merits of the issue of whether his current petition could satisfy
the requirements of 28 U.S.C. § 2244(b)(2).
The effective date of AEDPA was April 24, 1996. Starling’s
petition for writ of habeas corpus now before us was filed prior to
that effective date. We do not read 28 U.S.C. § 2244(b)(3)(A) as
applying to petitions for writ of habeas corpus filed prior to the
effective date of AEDPA even though such petitions may be second or
successive habeas corpus petitions. Consequently, we find that the
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magistrate judge and district judge were in error in concluding
that an order from this Circuit Court permitting a second or
successive habeas corpus petition was required and in dismissing
without prejudice Starling’s petition. Accordingly, we VACATE and
REMAND this case to the district court for further consideration as
to the merits of such petition under § 2244(b)(1) and (2).
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