No. 98-51092
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51092
Summary Calendar
MANUEL GOMEZ HERNANDEZ,
Petitioner-Appellant,
versus
GARY L. 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
USDC No. MO-98-CV-1
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March 22, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Gomez Hernandez (TDCJ # 539907) was granted a
certificate of appealability (COA) to appeal the district court’s
sua sponte dismissal of his habeas corpus petition as
procedurally barred. Although the Respondent had argued in the
district court that Hernandez’s petition was successive within
the meaning of 28 U.S.C. § 2244(b), the district court relied on
our holding in In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997),
and determined that the petition was not successive because
*
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that this opinion should not be published and is not precedent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.
No. 98-51092
-2-
Hernandez’s prior petition had been dismissed without prejudice
for failure to exhaust state-court remedies. The Respondent
argues that because the district court’s conclusion was in error,
this court lacks jurisdiction over the present cause.
We reject the Respondent’s argument because it ignores the
fact that this court remanded to the district court an
unexhausted claim so that it could either be dismissed as
unexhausted or addressed on the merits. Thus, when the district
court subsequently dismissed the petition for failure to exhaust,
it was in the same procedural posture as that in Gasery, 116 F.3d
at 1052.
Proceeding to the merits, Hernandez argues that the district
court erred by dismissing his petition as procedurally barred.
Our de novo review of the dismissal reveals no reversible error
by the district court. See Magouirk v. Phillips, 144 F.3d 348,
359 (5th Cir. 1998); Fearance v. Scott, 56 F.3d 633, 637 (5th
Cir. 1995).
AFFIRMED.