                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-6825



MONTOYAE DONTAE SHARPE,

                                             Petitioner - Appellant,

          versus


MICHAEL T. W. BELL,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:04-hc-00886-BO)


Submitted:   March 28, 2007                 Decided:   April 20, 2007


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


W. Gregory Duke, BLOUNT & DUKE, Greenville, North Carolina, for
Appellant. Roy Cooper, Attorney General, Clarence Joe DelForge,
III, Assistant Attorney General, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Montoyae Dontae Sharpe appeals the district court’s order

dismissing his 28 U.S.C. § 2254 (2000) petition as successive.

Sharpe    does   not   deny   that     the   §    2254    petition     he   filed    on

November 17, 2004, is numerically his second petition.                      “However,

it is settled law that not every numerically second petition is a

‘second    or    successive’     petition        within    the    meaning     of    the

[Antiterrorism and Effective Death Penalty Act of 1996].”                       In re

Williams, 444 F.3d 233, 235 (4th Cir. 2006).                 Petitions dismissed

on   procedural    grounds,     such    as   for      failure    to   exhaust      state

remedies, do not constitute a dismissal on the merits and are thus

not counted for purposes of determining whether a subsequently

filed petition is second or successive.                   Slack v. McDaniel, 529

U.S. 473, 487 (2000).

            The district court’s order addressing Sharpe’s first

§ 2254 petition concluded: “Sharpe’s petition is DENIED on the

grounds of ineffective assistance of counsel, and, because Sharpe

has not exhausted his state remedies, this case is REMANDED to

state court for further proceedings consistent with this opinion.”

However, this conclusion is clearly inconsistent with the language

in the body of the order.               Though the court found Sharpe’s

ineffective assistance claim to be procedurally defaulted, it

determined      that   the   defect    could     be   excused    if   Sharpe    could




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demonstrate a fundamental miscarriage of justice.        The court

stated:

     This Court is remanding this case to state court for
     further proceedings and for further development of the
     evidence in this case.   Because there are additional
     factual and evidentiary claims that have not been
     adequately considered by the state courts, this Court
     cannot yet rule on the existence of a fundamental
     miscarriage of justice.

          Thus, the district court deferred its final ruling on

whether there was a fundamental miscarriage of justice sufficient

to overcome the procedural default, and dismissed Sharpe’s first

§ 2254 petition to permit exhaustion of state remedies as to all

issues.   Consequently, we conclude that the § 2254 petition filed

by Sharpe in 2004, while numerically second, is not second or

successive under § 2244.

          Accordingly, we vacate the judgment of the district court

and remand for further proceedings. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                              VACATED AND REMANDED




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