IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50626
Summary Calendar
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ROBERT ELLIS STRIPLIN,
Petitioner-Appellant,
versus
GARY JOHNSON, Director, Texas
Department of Criminal Justice
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
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July 30, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Robert Ellis Striplin appeals the district court’s decision to
dismiss his petition for a writ of habeas corpus on the ground that
Striplin had failed to obtain permission from this court to file a
“second or successive” petition, as required by 28 U.S.C. § 2244.
Striplin is currently in the custody of the State of Texas after
having been convicted in 1994 of the misapplication of fiduciary
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
property. Striplin argues that his June 1996 habeas petition was
not a “second or successive” petition. In order to appeal,
Striplin must obtain a certificate of appealability (“COA”)
pursuant to 28 U.S.C. § 2253(c), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996), which became effective before Striplin filed his
petition in the district court. Striplin has also moved this court
for leave to proceed in forma pauperis (“IFP”) on appeal.
In cases where the district court dismisses a petition on
procedural grounds, the COA analysis is a two-step process. First,
the court must consider whether the applicant has made a credible
showing that he can overcome the procedural bar or defect. If so,
the court next considers whether the underlying claim meets the
requirements for a COA by offering “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). Tucker v.
Johnson, 115 F.3d 276, ___ (5th Cir. 1997); citing Murphy v.
Johnson, 110 F.3d 10 (5th Cir. 1997).
In this case, Striplin has made a credible showing that he can
overcome the procedural bar. Striplin asserts that his previous
habeas petition, filed in March 1995, challenged the revocation of
his parole, and therefore raised a “distinct and separate issue”
from the present petition. The fact that the two habeas petitions
raised different issues does not, of course, prevent the later-
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filed petition from being “second or successive.” More to the
point, however, is that Striplin’s first petition challenged the
revocation of his parole on offenses of which he had previously
been convicted by a different state court. Because Striplin’s two
habeas petitions were based on different underlying convictions
imposed by different state courts in different years, Striplin has
made a credible showing that the district court’s dismissal of his
present petition as “second or successive” was erroneous.
We therefore turn to the underlying merits of Striplin’s
habeas petition, to determine whether he has made the showing
required for a COA. In his petition, Striplin argues that his
guilty plea was involuntary because the government breached its
plea agreement not to prosecute Striplin’s wife. Because
Striplin’s petition was immediately dismissed on procedural
grounds, the record does not contain a copy of the plea agreement,
or any findings of fact by the district court concerning the
veracity of Striplin’s allegations. For purposes of the COA, we
therefore take these allegations as true. If Striplin’s factual
assertions are true, Striplin’s guilty plea was obtained in
violation of his Fifth Amendment rights. Because Striplin’s appeal
is based upon a procedural issue only, and Striplin has met the
requirement for a COA with respect to at least one issue, we
decline to consider whether any other issues raised in the petition
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meet the COA standard, as these issues will not actually be
considered in this appeal.
Accordingly, we turn now to the merits of Striplin’s appeal,
which is based only upon the claim that the district court
erroneously dismissed his June 1996 habeas petition for failure to
obtain prior approval to file a second or successive petition. As
noted above, Striplin’s March 1995 habeas petition challenged the
revocation of his parole from incarceration for unrelated 1987 and
1988 convictions.1 These convictions and sentences were imposed by
the 205th Judicial District Court of El Paso County, Texas.
Striplin’s 1994 conviction and sentence for the misapplication of
fiduciary property was imposed by the 346th Judicial District Court
of El Paso County, Texas.
28 U.S.C. § 2244(b) does not define the term “second or
successive.” We have held, in accordance with our prior practice,
that petitions that are refiled after dismissal for failure to
exhaust state remedies are not “second or successive.” In re
Gasery, ___ F.3d ___, 1997 WL 348520 at *1 (5th Cir. 1997) (denying
motion for leave to file second or successive petition as
unnecessary). The underlying point, of course, is that the habeas
1
Although not contained in the record on appeal, this court
takes judicial notice of the contents of Striplin’s March 1995
petition, obtained from the clerk of the federal district court for
the Western District of Texas. See Fed. R. Evid. 201.
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petitioner whose petition was dismissed on procedural grounds has
not yet been able to raise his habeas claims. In Striplin’s case,
the claims that he seeks to raise in his present petition could not
have been raised in his prior petition, and the rules governing
habeas petitions indicate that challenges to convictions or
sentences imposed by more than one state court must be raised in
separate petitions. See Rules Governing Section 2254 Cases,
Rule 2(d). Accordingly, we conclude that a petition that
challenges the judgment of one state court may not be said to be
“second or successive” to a prior petition challenging a different
conviction and sentence imposed by a different state court, as
under the applicable rules those claims could not have been raised
in a single petition. Striplin’s June 1996 habeas petition was
therefore not “second or successive” to his May 1995 petition, and
the district court’s decision dismissing the present petition on
this ground was incorrect.
Accordingly, Striplin’s request for a COA to appeal is
GRANTED. The judgment of the district court is REVERSED and the
case is REMANDED to the district court for that court to consider
in the first instance the state’s motion to dismiss for failure to
exhaust state remedies. Because we have concluded that Striplin’s
appeal is not frivolous, and because Striplin has properly applied
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to proceed IFP, Striplin’s motion to proceed IFP on appeal is also
GRANTED.
COA GRANTED; MOTION TO PROCEED IFP GRANTED;
REVERSED and REMANDED.
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