IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20266
USDC No. CA-H-94-1310
__________________
LEONARD R. CROOMS,
Petitioner-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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August 14, 1995
Before GARWOOD, BENAVIDES and PARKER, Circuit Judges.
BY THE COURT:
Leonard Ray Crooms requests a certificate of probable cause
(CPC) to appeal the district court's dismissal of his fourth
federal petition for habeas corpus as an abuse of the writ. A
second or successive petition may be dismissed if the petitioner
alleges new or different grounds and "the failure of the
petitioner to assert those grounds in a prior petition
constituted an abuse of the writ." Rule 9(b) of the Rules
Governing 28 U.S.C. § 2254 Proceedings. We review the district
court's decision to dismiss the petition pursuant to Rule 9(b)
No. 95-20266
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for an abuse of discretion. Hudson v. Whitley, 979 F.2d 1058,
1062 (5th Cir. 1992).
The district court should have given Crooms notice that his
petition was being considered for dismissal and that dismissal
was automatic if he failed to show why he did not raise the new
claims in his previous petitions. See United States v. Cullum,
47 F.3d 763, 764 (5th Cir. 1995)(§ 2255 case). Because it is not
certain that Crooms would not be able to allege facts sufficient
to prevent his claim from being dismissed under Rule 9(b), the
court's error was not harmless. Id.
Crooms's request for CPC is GRANTED. Because no further
briefing is necessary, the district court's judgment dismissing
Crooms's petition is VACATED and the cause REMANDED for further
proceedings. See Clark v. Williams, 693 F.2d 381, 381-82 (5th
Cir. 1982). Crooms's motion to proceed in forma pauperis (IFP)
is DENIED as unnecessary.