     Case: 11-40317   Document: 00512046754     Page: 1   Date Filed: 11/07/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                November 7, 2012

                                  No. 11-40317                    Lyle W. Cayce
                                                                       Clerk

TONY STRICKLAND,

                                            Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent-Appellee



                 Appeal from the United States District Court
                       for the Eastern District of Texas


Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges.
GARZA, Circuit Judge:
        Petitioner Tony Strickland, a Texas state prisoner, exhausted his state
remedies and moved to file a habeas corpus petition.           The district court
dismissed the application without prejudice for lack of subject matter
jurisdiction under 28 U.S.C. § 2244, holding the petition is a second or successive
petition.   Strickland appeals, contending this petition is not a second or
successive petition within the meaning of 28 U.S.C. § 2244. For the following
reasons, we REVERSE and REMAND.
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                                      No. 11-40317

                                             I
       Strickland was convicted of aggravated robbery and sentenced to 15 years
of imprisonment. His first trial ended in a hung jury. The victim testified
against Strickland at his second trial. To support the victim’s testimony, the
prosecution sought to present the testimony of Terry Moore, an accomplice to the
robbery. Moore invoked his Fifth Amendment right against self-incrimination.
The trial court allowed both parties to read to the jury portions of Moore's
testimony from Strickland’s first trial. Strickland filed a direct appeal, arguing
that the evidence was insufficient to support his conviction. The Texas Court of
Criminal Appeals affirmed his conviction.
       Strickland filed a pro se federal habeas application. He alleged several
grounds of ineffective assistance of appellate counsel and ineffective assistance
of trial counsel, several grounds of error by the trial court, and improper conduct
by a juror in failing to communicate his ties to the trial court, Strickland, and
Strickland’s counsel. The magistrate judge recommended the district court deny
Strickland’s claim that appellate counsel was ineffective on the merits and
dismiss without prejudice Strickland’s remaining unexhausted claims.
Strickland objected, arguing the exhaustion doctrine did not apply, because he
had been denied the opportunity to exhaust his state remedies because his
counsel on appeal failed to raise numerous grounds of error and because the trial
court did not forward his state writ application to the state appellate court. The
district court adopted the magistrate judge’s report and recommendation,1
dismissed with prejudice on the merits Strickland’s exhausted claim that
appellate counsel was ineffective, and dismissed without prejudice his
unexhausted claims. The court stated that “the dismissal of the unexhausted


       1
        After Strickland objected, the magistrate judge withdrew her initial recommendation,
and issued a show cause order. The Respondent complied with the show cause order, and the
magistrate reinstated her initial recommendation.

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claims without prejudice does not obviate the exhaustion requirement itself, but
simply allows Strickland to again seek federal habeas corpus relief upon those
claims, when he can show that the exhaustion requirement has been met or
plausibly argue that this requirement should be excused.” Strickland appealed
and we denied a COA.
       Strickland filed an application for a writ of habeas corpus in state court in
October 2010 and it was denied in November 2010, exhausting the remainder of
his claims. Strickland returned to federal court in December 2010 with another
pro se habeas application, in which he challenged his aggravated robbery
conviction. He alleged, as he did in his prior amended § 2254 application, that
his trial counsel was ineffective because he failed to object to Moore’s “blanket
assertion” of his Fifth Amendment right against self-incrimination, failed to
object to the invocation in the presence of the jury, and failed to request jury
instructions on adverse inferences. He also alleged that the trial court erred
because it overly admonished Moore about perjury during Strickland’s first trial
and intimidated him, resulting in Moore’s invocation of the Fifth Amendment
privilege in his second trial. Strickland asserted he had returned to state court
and exhausted the claims the federal court previously dismissed as unexhausted
in his first petition.
       The magistrate judge concluded that the instant application was a
successive application and that Strickland had not shown that he received
permission from this court to file it. The magistrate judge recommended the
district court dismiss the application under 28 U.S.C. § 2244(b)(3)(A) as a second
or successive application.2 Strickland objected. After de novo review, the district
court dismissed the application for lack of subject matter jurisdiction. Strickland


       2
         “Before a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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timely appealed. The district court denied a COA. A judge of this court granted
a COA on whether the district court erred in dismissing the instant § 2254
application as an unauthorized successive application.
                                        II
      When reviewing the denial of habeas relief, we review the district court’s
findings of fact for clear error. Hardemon v. Quarterman, 516 F.3d 272, 274 (5th
Cir. 2008) (citing Moody v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998)). We
review issues of law de novo. Id. When a denial is on procedural grounds, our
review is de novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).
                                       III
      Strickland’s petition presents an issue of first impression in this circuit:
where in an initial federal habeas petition the court decided an exhausted claim
on the merits and dismissed the unexhausted claims without prejudice, stating
the petitioner may return to federal court after exhausting the unexhausted
claims, and the petitioner seeks to refile his petition after exhausting the
unexhausted claims, whether the new petition is a “second or successive”
petition under 28 U.S.C. § 2244.
      Under § 2244(b)(3)(A), a district court is barred from asserting jurisdiction
over a claim presented in “a second or successive application” unless we grant
the petitioner permission to file the application. United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000). Although § 2244(b) does not set forth what constitutes
a “second or successive application,” we have held that a later § 2254 application
is successive when, among other things, it raises a claim challenging the
petitioner’s conviction or sentence that was raised in an earlier application.
Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003).
      A § 2254 application is not successive merely because it follows an earlier
application. In re Cain, 137 F.3d 234, 235 (5th Cir. 1998); Magwood v. Patterson,
130 S. Ct. 2788, 2805 (2010) (“second or successive [does] not refer to all § 2254

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applications filed second or successively in time, but [is] rather a term-of-art that
takes its full meaning from our case law, including decisions predating the
enactment of AEDPA.”) (internal citation and quotation marks omitted). A
§ 2254 application filed after an earlier application that was dismissed without
prejudice for failure to exhaust state court remedies is not a second or successive
application. Slack v. McDaniel, 529 U.S. 473, 487 (2000); In re Gasery, 116 F.3d
1051, 1052 (5th Cir. 1997) (holding petitioner seeking to re-file habeas
application after prior dismissal without prejudice for failure to exhaust state
remedies is not required to comply with § 2244(b)(3)(A) when he returns to
federal court after exhausting those claims).
      Under Lundy district courts should dismiss mixed petitions and not permit
petitioners to split claims in the manner the district court did in this case. Rose
v. Lundy, 455 U.S. 509, 486 (1982); Jones v. Estelle, 722 F.2d 159, 168 (5th Cir.
1983) (describing our “strong policy against piecemealing claims”), overruled on
other grounds by Saahir v. Collins, 956 F.2d 115, 119 (5th Cir. 1992). While a
district court should dismiss an entire federal habeas application if the
petitioner’s state remedies have not been exhausted as to all claims raised in the
federal petition, Graham v. Johnson, 168 F.3d 762, 778 (5th Cir. 1999) (citing
Rose v. Lundy, 455 U.S. 509, 522 (1982)), “because exhaustion is based on comity
rather than jurisdiction, there is no absolute bar to federal consideration of
unexhausted habeas applications.” Id. Specifically, habeas applications “may
be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” Neville v. Dretke, 423 F.3d
474, 482 (5th Cir. 2005) (citing 28 U.S.C. § 2254(b)(2)) (finding district court had
discretion to deny exhausted claim improperly presented to the federal district
court as part of a mixed application). Thus, even if the district court erred in
reaching the merits of Strickland’s exhausted claim, the error was not
jurisdictional.

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      In Slack v. McDaniel, the petitioner presented unexhausted claims in a
first habeas application. 529 U.S. 473, 478-80 (2000). The petitioner asked the
district court to hold his petition in abeyance while he returned to state court to
pursue post-conviction relief. Id. at 479. The district court dismissed the
petition without prejudice and granted the petitioner leave “to file an application
to renew” upon exhaustion of all state remedies. Id. The petitioner was unable
to obtain post-conviction relief in the state court and returned to federal court
with a mixed petition raising some of the claims he raised in his first state
post-conviction proceedings, and claims he had not raised. Id. The district court
dismissed the petition as a second or successive petition and also as an abuse of
the writ. Id. at 479-80.
      The Supreme Court agreed with the petitioner that the latter application
was not second or successive and that the district court was wrong to dismiss the
petition for failure to exhaust. Id. at 485-86. The Court reasoned that although
Lundy held a district court must dismiss mixed petitions, it nevertheless
contemplated that a petitioner could return to federal court after the requisite
exhaustion. Id. at 486. The Supreme Court stated that none of its prior cases
“have ever suggested that a prisoner whose habeas application was dismissed
for failure to exhaust state remedies, and who then did exhaust those remedies
and returned to federal court, was by such action filing a successive application.”
Id. at 487. The Court held, “A petition filed after a mixed petition has been
dismissed under Rose v. Lundy before the district court adjudicated any claims
is to be treated as ‘any other first petition’ and is not a second or successive
petition.” Id.
      In Burton v. Stewart, the petitioner returned to federal court after he filed
an initial § 2254 application with a new claim that he had exhausted after his
initial application was denied, arguing that this claim related to a different
judgment than the one made the basis of his first habeas application. 549 U.S.

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147, 155-56 (2007). The petitioner did not raise the unexhausted claim in his
first application. Id. at 155. The Court noted that the first application was
adjudicated on its merits, and held the second application was “second or
successive,” and remanded the case to the district court for it to dismiss the
application for want of jurisdiction. Id. at 155-57.
      Strickland contends the district court erred when it entertained his first
§ 2254 application because it was a “mixed application” and that he should not
be prejudiced by the error. Strickland contends that the two cases the district
court cited in its order dismissing Strickland’s habeas petition as “second or
successive,” Burton, 549 U.S. at 154, and Mathis v. Thaler, 616 F.3d 461, 470
(5th Cir. 2010), are not controlling because in those cases the petitioners were
attempting to file new claims that were not raised in their first petition.
      Appellee Thaler maintains the instant application is successive under
§ 2244 because one of the claims in Strickland’s first habeas application was
adjudicated on the merits. He cites Burton for the proposition that because
Strickland elected to have the district court decide the merits of his exhausted
claim without withdrawing his unexhausted claims,3 he effectively abandoned
his unexhausted claims, and therefore his application is successive. See Burton,
549 U.S. at 154 (holding those with exhausted and unexhausted claims “may
proceed only with the exhausted claims, but doing so risks subjecting later
petitions that raise new claims to rigorous procedural obstacles.”).
      Strickland contends because Slack controls this case, we should hold his
new petition is not a second or successive petition. See Slack, 529 U.S. at 478-
79. Thaler contends because Burton controls we should dismiss Strickland’s
petition for lack of jurisdiction. See Burton, 549 U.S. at 155-56. Here, unlike in


      3
        Thaler nonetheless admits, “Strickland objected to the recommendation that his
unexhausted claims be dismissed, urging the district court to address those claims on the
merits as well.” Appellee’s Br. at 3.

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Slack, the district court did not dismiss the entire first petition but adjudicated
one of Strickland’s claims on the merits, and, unlike the petitioner in Burton,
Strickland raised unexhausted claims in his first application that the district
court dismissed without prejudice. Thus, while Slack and Burton aid our
inquiry, the procedural history in this case is sufficiently distinguishable that
neither case controls our holding.
      Thaler also finds support for his position in an analogous Tenth Circuit
case, in which the petitioner’s initial habeas petition included both exhausted
and unexhausted claims. Tapia v. LeMaster, 172 F.3d 1193 (10th Cir. 1999). At
the petitioner’s request, the court decided the petitioner’s exhausted claim on the
merits and dismissed without prejudice the petitioner’s unexhausted claims. Id.
at 1194-95. The Tenth Circuit held the petitioner’s subsequent petition raising
the previously unexhausted grounds that were then exhausted was a “second or
successive” petition under 28 U.S.C. § 2244(b)(2). Id. at 1196. Thaler contends
that like the petitioner in Tapia, Strickland abandoned his unexhausted claims
when he urged the district court to decide the exhausted claim on the merits.
We disagree. While we note Tapia is not binding precedent, we also conclude
Tapia is distinguishable insofar as here the district court considering
Strickland’s initial habeas claim specifically stated Strickland would be entitled
to federal habeas review after exhausting his unexhausted claims.
      There is no precedent in our cases for holding a claim previously dismissed
without prejudice for failure to meet the exhaustion requirement is a “second or
successive” petition under 28 U.S.C. § 2244(b)(2) if refiled after exhaustion. See
In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997) (citing Benton v. Washington,
106 F.3d 162, 164 (7th Cir. 1996)) (“The sequence of filing, dismissal, exhaustion
in state court, and refiling . . . might generate multiple docket numbers, but it
would not be right to characterize it as successive collateral attacks.”). As in
Slack, the district court dismissed Strickland’s unexhausted claims without

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condition and without prejudice. See Slack, 529 U.S. at 489. Strickland relied
on the court’s statement that he could “again seek federal habeas corpus relief”
once he exhausted his unexhausted claims. We agree with Strickland that
district courts cannot send petitioners on wild goose chases by permitting them
to split their exhausted and unexhausted claims, guaranteeing them federal
habeas review if they exhaust their state court remedies, only to then deny them
habeas review once they have exhausted their state remedies. Accordingly, we
hold Strickland’s petition is not a “second or successive” petition within the
meaning of 28 U.S.C. § 2244.
                                              IV
      For these reasons, we REVERSE and REMAND.4




      4
          We deny Strickland’s motion to strike Appellee’s brief.

                                               9
