                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7076


DONALD RAYMOND BARBE,

                  Petitioner - Appellant,

             v.

THOMAS L. MCBRIDE,

                  Respondent - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:07-cv-00025-REM-JES)


Submitted:    February 12, 2009             Decided:   June 22, 2009


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James Jeffrey Pascoe, WOMBLE CARLYLE, SANDRIDGE & RICE,
Greenville, South Carolina, for Appellant.         Robert David
Goldberg, Assistant Attorney General, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Donald Barbe appeals a district court order adopting

the magistrate judge’s report and recommendation and dismissing

his   28   U.S.C.     § 2254      (2006)     petition    as   being     a    second     or

successive petition and without authorization from this court

under 28 U.S.C. § 2244 (2006).               Because the claim was originally

dismissed     for     failing      to     exhaust      appropriate      state       court

remedies, we vacate the court’s order and remand for further

proceedings.

            Under     28    U.S.C.      §    2244(b)(1)       (2000),       “[a]    claim

presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application

shall be dismissed.”

            In Stewart v. Martinez-Villareal, 523 U.S. 637 (1998),

the   Supreme   Court      held    that     § 2244(b)    does    not    apply      in   an

instance where a petitioner files a habeas petition only to have

several claims denied on the merits and one claim dismissed for

being premature.        When the last claim matured and state remedies

exhausted, the petitioner filed a habeas petition raising the

claim.     The district court dismissed the petition for lack of

jurisdiction        because     there       was   no    authorization        from       the

appellate court.       The Supreme Court held:

      This may have been the second time that respondent had
      asked the federal courts to provide relief on his Ford
      claim, but this does not mean that there were two

                                             2
     separate   applications,   the  second   of  which was
     necessarily subject to § 2244(b). There was only one
     application for habeas relief, and the District Court
     ruled (or should have ruled) on each claim at the time
     it became ripe. Respondent was entitled to an
     adjudication of all of the claims presented in his
     earlier,   undoubtedly   reviewable,   application for
     federal habeas relief.

Stewart, 523 U.S. at 643.            The Supreme Court further stated that

“[w]e believe that respondent’s Ford claim here - previously

dismissed as premature - should be treated in the same manner as

the claim of a petitioner who returns to a federal habeas court

after exhausting state remedies.”                Id. at 644.

              Because the district court dismissed Barbe’s ex post

facto claim on the basis that he had not exhausted his state

court remedies, the court should not have found Barbe’s § 2254

petition raising the same claim after presenting it to state

court   to     be      a    second   or      successive     petition    requiring

authorization from this court under § 2244.

              Accordingly, we vacate the district court order and

remand for further proceedings.                  We take no position as to the

merits of Barbe’s claim or if the claim may be barred due to

other procedural requirements not previously considered by the

district     court.        We   dispense    with    oral   argument   because   the

facts   and    legal       contentions     are    adequately   presented   in   the




                                            3
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




                                    4
