                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 31, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-60606
                         Summary Calendar



MAURICE DAMON CHANCELLOR,

                                    Petitioner-Appellee,

versus

STATE OF MISSISSIPPI; JIM HOOD,

                                    Respondents-Appellants.


                      ---------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 3:03-CV-426-BN
                      ---------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     The district court dismissed the 28 U.S.C. § 2254 habeas

petition by petitioner-appellee Maurice Chancellor, a Mississippi

prisoner (# L0909), “without prejudice,” for failure to exhaust

state remedies.   The respondents-appellants have filed an appeal

from the “without prejudice” designation; they argue that the

dismissal should have been based on the procedural-default

doctrine and that it should have been “with prejudice.”       They

contend that, because Chancellor has already filed an

unsuccessful postconviction application in the Mississippi state

     *
        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that this opinion should not be published and is not precedent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. 04-60606
                                 - 2 -

courts, any future attempt to exhaust state remedies would be

barred by Mississippi’s successive-petition rule, MISS. CODE ANN.

§ 99-39-23(6).

     The procedural-default doctrine precludes federal habeas

review when the last reasoned state-court opinion addressing a

claim explicitly rejects it on a state procedural ground.      Ylst

v. Nunnemaker, 501 U.S. 797, 801, 803 (1991).    When the state

court has relied on an independent and adequate state procedural

rule, federal habeas review is barred unless the petitioner

demonstrates either cause and prejudice or that a failure to

address the claim will result in a fundamental miscarriage of

justice.   Coleman v. Thompson, 501 U.S. 722, 750 (1991).

     In the instant case, no state procedural bar was ever

applied to Chancellor’s claims by the state courts, but it is

undisputed that Chancellor failed to exhaust the claims he is now

raising.   Ordinarily, a habeas petition must be dismissed,

without prejudice, if any issue has not been exhausted in the

state courts.    Rose v. Lundy, 455 U.S. 509, 513-19 (1982).

However, “[w]hen . . . state remedies are rendered unavailable by

the petitioner’s own procedural default, federal courts are

barred from reviewing those claims.”    Sones v. Hargett, 61 F.3d

410, 416 (5th Cir. 1995).    “‘[I]f the petitioner failed to

exhaust state remedies and the [state] court to which petitioner

would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally

barred, . . . [then] there is procedural default for the purposes

of federal habeas. . . .’”    Id. (quoting Coleman, 501 U.S. at 735
                             No. 04-60606
                                 - 3 -

n.1); Wilder v. Cockrell, 274 F.3d 255, 262 (5th Cir. 2001).      The

petitioner bears the burden of showing that the state did not

strictly or regularly follow a procedural bar.    See Stokes v.

Anderson, 123 F.3d 858, 860 (5th Cir. 1997).

     The respondents argued in their answer in district court

that Chancellor’s 28 U.S.C. § 2254 petition should be dismissed

as procedurally defaulted.    Chancellor has not filed any

pleadings or papers in this case since July 2003, prior to the

date that the respondents filed their answer.    Chancellor has

thus made no effort to sustain his burden of showing that

Mississippi’s successive-petition provision, MISS. CODE ANN. § 99-

39-23(6), was not an “adequate and independent” state procedural

ground upon which to base a procedural-default ruling, and we

have indicated that § 99-39-23(6) is indeed an adequate and

independent rule.   See Moawad v. Anderson, 143 F.3d 942, 947 (5th

Cir. 1998); Lott v. Hargett, 80 F.3d 161, 164-65 (5th Cir. 1996).

Accordingly, we conclude that Chancellor’s habeas petition should

have been dismissed “with prejudice” as procedurally defaulted.

We thus VACATE and REMAND with instructions that the district

court re-enter judgment in favor of the respondents, dismissing

Chancellor’s petition “with prejudice” as procedurally defaulted.

     VACATED AND REMANDED.
