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96 Cal. Daily Op. Serv. 8714, 96 Daily Journal D.A.R. 14,425 in Re Terry M. Turner

96 Cal. Daily Op. Serv. 8714, 96 Daily Journal D.A.R. 14,425 in Re Terry M. Turner, 101 F.3d 1323 (9th Cir. 1997)
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Court
Court of Appeals for the Ninth Circuit · U.S. Courts of Appeals
Decided
January 21, 1997
Docket
No. 96-80418
Citations
101 F.3d 1323

Opinion

101 F.3d 1323 96 Cal. Daily Op. Serv. 8714 , 96 Daily Journal D.A.R. 14,425 In re Terry M. TURNER, Petitioner.

No. 96-80418.

United States Court of Appeals, Ninth Circuit.

Dec. 3, 1996. As Amended Jan. 21, 1997.

Terry M. Turner, Aiea, HA, Pro Se.

Before: PREGERSON, REINHARDT and T.G. NELSON, Circuit Judges.

1

Petitioner has filed a motion for permission to file a successive habeas corpus petition in the district court pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, codified in relevant part at 28 U.S.C. § 2244 (b)(3). Petitioner's motion was lodged in this court on October 28, 1996 pursuant to the pre-filing review order entered in docket no. 93-80158. We hold that section 2244 does not apply to second or subsequent habeas petitions where the first petition was dismissed without prejudice for failure to exhaust state remedies, and we deny petitioner's motion as unnecessary.

2

The petition which petitioner seeks to file in the district court raises the same claims raised in his prior petition, which was dismissed by the district court without prejudice for failure to exhaust state remedies.

3

This court has not decided whether 28 U.S.C. § 2244 (b)(3), as amended by the 1996 Act, applies to second or subsequent petitions where the same claims have previously been dismissed without prejudice for failure to exhaust. See Camarano v. Irvin, 98 F.3d 44 (2d Cir.1996) (permission to file successive petition under Anti-Terrorism Act not required where first petition dismissed for failure to exhaust). We hold that it does not.

4

Consequently, petitioner may file his petition in the district court without prior permission from this court, and the motion is denied as unnecessary.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

  • (refusing to apply rules governing second or successive petitions to a petitioner whose prior habeas petition had been dismissed for failure to exhaust)

Cited by 10 cases

View all citing references →
1997: 31998: 11999: 12000: 12021: 22023: 12026: 119972026peak 1997 · 3

Relies on it most ⓘ

  1. Malcolm D. Hanson v. Tammy CampbellNo. 2:23-cv-03112 (C.D. Cal. May 1, 2023)
  2. Slack v. McDaniel529 U.S. 473 (2000)
  3. United States v. Kortgaard26 F. Supp. 2d 1239 (D. Haw. 1997)
  4. McWilliams v. State of Colorado121 F.3d 573 (10th Cir. 1997)
  5. Nathaniel Davidson v. John P. Keane, Supt. Sing Sing Corr. Facility107 F.3d 2 (2d Cir. 1997)
  6. United States v. BarrettNo. 96-2355 (1st Cir. May 27, 1999)

Most recent

  1. Dina Sarkisova v. Kelly A. MartinezNo. 3:26-cv-03118 (S.D. Cal. May 22, 2026)
  2. Malcolm D. Hanson v. Tammy CampbellNo. 2:23-cv-03112 (C.D. Cal. May 1, 2023)
  3. Wiliams v. UnknownNo. 3:21-cv-01167 (S.D. Cal. Oct. 25, 2021)
  4. Recarey v. We The PeopleNo. 3:21-cv-01377 (S.D. Cal. Aug. 18, 2021)
  5. Slack v. McDaniel529 U.S. 473 (2000)
  6. United States v. BarrettNo. 96-2355 (1st Cir. May 27, 1999)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
In re Turner, 101 F.3d 1323 (9th Cir. 1996) 29
Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996) 87

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