IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31152
Summary Calendar
RAYMOND ROCHON,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-1481
_______________________________________________________________
June 4, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Raymond Rochon, Louisiana prisoner #93625, was convicted of
aggravated rape and sentenced to life imprisonment on December 7,
1979. On April 12, 1997, Rochon filed an application for writ of
habeas corpus by a person in state custody under 28 U.S.C. § 2254
in the Middle District of Louisiana. The district court dismissed
the application as successive because Rochon had not received leave
of this court to file a successive application.
This court has considered whether an applicant was require to
obtain permission to file a second habeas application after his
first application was dismissed for failure to exhaust state habeas
*
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this opinion should not be published and is not precedent except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.
remedies. In Re: Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997).
This court concluded that a habeas application refiled after a
dismissal for failure to exhaust was not a “second or successive”
application within the meaning of § 2244(b). Id. at 1051-52.
In this case, the district court noted that Rochon had filed
numerous habeas applications and civil rights actions that were in
fact habeas claims. The district court stated that at least one of
those, Rochon v. Blackburn, No. 6:83-1685, was denied on the
merits, but stated that it had been dismissed without prejudice.
The district court did not include in the record of this appeal
pleadings from the case on which it was relying. By definition, a
case that is dismissed without prejudice to another action raising
the same issues cannot be an adjudication on the merits. The
record is therefore insufficient for this court to determine
whether the district court erred in finding that this subsequent
habeas application is successive. Accordingly, we VACATE the
dismissal and REMAND Rochon’s application to the district court for
additional proceedings. Rochon’s outstanding motions are DENIED.
VACATED and REMANDED; MOTIONS DENIED.