                     UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 RAMON HARO-ARTEAGA

       Petitioner,
                                                      No. 99-4201
 v.                                               (D.C. No. 99-CV-593)
                                                        (D. Utah)
 UNITED STATES OF AMERICA

       Respondent.



                                     ORDER
                            Filed December 28, 1999


Before HENRY, LUCERO and MURPHY, Circuit Judges



      On the court’s own motion, the December 15, 1999 order disposing of this

matter shall be published. A copy of the published order is attached.

                                            Entered for the Court

                                            Patrick Fisher, Clerk of Court

                                                  By:

                                                         Keith Nelson
                                                         Deputy Clerk
                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                          DEC 15 1999
                     UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                               Clerk
                                TENTH CIRCUIT



 RAMON HARO-ARTEAGA

       Petitioner,
                                                        No. 99-4201
 v.                                                 (D.C. No. 99-CV-593)
                                                          (D. Utah)
 UNITED STATES OF AMERICA

       Respondent.



                                      ORDER



Before HENRY, LUCERO and MURPHY, Circuit Judges



      This matter is before the court on the transfer by the district court of Ramon

Haro-Arteaga’s 28 U.S.C. § 2255 motion, the subsequent motion for permission to

file a successive § 2255 motion in the district court, and the government’s response.

See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). The issue

presented is whether the motion which Mr. Haro-Arteaga seeks to file in the district

court should be treated as a second or successive motion under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). We determine that the motion is not

a second or successive motion and remand the matter to the district court.
      Mr. Haro-Arteaga seeks to challenge his 1995 conviction and sentence entered

by the District of Utah for distribution of a controlled substance.

      Mr. Haro-Arteaga has filed two previous § 2255 motions. The first was filed

on March 28, 1996. In that proceeding, the government filed its response on June

3, 1996. Mr. Haro-Arteaga filed a motion to withdraw on June 24 stating that

“several of his grounds for relief are improperly presented in his presently submitted

Motion to Vacate Sentence, and that the presently submitted Motion omits other

valid grounds which Movant would also care to raise.” The court granted the motion

on June 28.

      The second motion was filed on March 26, 1997. The government filed its

response on June 13, 1997. On July 31, the district court ordered Mr. Haro-Arteaga

to file a responsive pleading by August 22. On January 1, 1998, the district court

ordered Mr. Haro-Arteaga to show cause by February 9 as to why his motion should

not be dismissed for failure to respond to the July 31 order. On February 6, Mr.

Haro-Arteaga filed an unopposed notice of voluntary dismissal stating that he was

making the motion to “avoid any delay in his pending transfer application to

Mexico.” The matter was closed on February 10 by the district court pursuant to the

voluntary dismissal.

      Mr. Haro-Arteaga then filed a § 2255 motion on August 2, 1999 and one on

August 27. The magistrate judge to whom the matters had been referred consolidated


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the motions and transferred them to this court pursuant to Coleman.

      The government argues that the § 2255 motions filed in 1996 and 1997 should

count as prior motions under AEDPA, that this is a successive motion, and therefore

Mr. Haro-Arteaga must meet the requirements set forth in AEDPA to file a

successive motion. We disagree.

      In upholding the gatekeeping function of the courts of appeals set forth in

AEDPA, the Supreme Court noted that, as to similar restrictions on § 2254 petitions,

“[t]he new restrictions on successive petitions constitute a modified res judicata rule,

a restraint on what is called in habeas practice ‘abuse of the writ.’” Felker v. Turpin,

518 U.S. 651, 664 (1996). In Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct.

1618 (1998), the Court was presented with the issue of whether a § 2254 petition was

successive where the only claim being presented had been dismissed as premature

and unripe in a prior § 2254 petition, although the rest of the earlier petition had

been resolved on the merits. The Court held that the second petition was not second

or successive for purposes of AEDPA. Part of the Court’s rationale was that those

claims “would not be barred under any form of res judicata.” Id. 118 U.S. at 1622.

      Accordingly, this court, as well as the other circuits, have followed the pre-

AEDPA cases on abuse of the writ to determine whether a petition is second or

successive for purposes of AEDPA. See Tapia v. LeMaster, 172 F.3d 1193, 1195

(10th Cir. 1999), cert. denied, 120 S.Ct. 192 (1999); United States v. Scott, 124 F.3d


                                           3
1328, 1329 (10th Cir. 1997); Reeves v. Little, 120 F.3d 1136, 1138-39 (10th Cir.

1997).     The following types of cases have been held not to be subject to the

gatekeeping restrictions: where the previous petitions have been dismissed without

prejudice for failure to exhaust state remedies, see, e.g., McWilliams v. Colorado,

121 F.3d 573, 575 (10th Cir. 1997); where the first post-conviction remedy was used

solely to reinstate the right to a direct appeal, see, e.g., United States v. Scott, 124

F.3d at 1330; where the first petition was dismissed for failure to pay the filing fee,

see, e.g., Benton v. Washington, 106 F.3d 162, 164-65 (7th Cir. 1996); where the

first § 2255 motion is dismissed without prejudice because it was filed while the

direct criminal appeal was pending, see Flores v. United States, No. 97-8080, 1997

WL 525596 (8th Cir. 1997) (unpublished disposition); and where the first petition

is returned for being insufficient for failing to comply with the Rules Governing

Section 2244 Cases or Rules Governing Section 2255 Proceedings, see O’Connor v.

United States, 133 F.3d 548, 550 (7th Cir. 1998).

         The Seventh Circuit appears to be the only circuit to have dealt with the

situation where the previously filed petitions have been voluntarily withdrawn. In

Felder v. McVicar, 113 F.3d 696 (7th Cir. 1997), a case relied on by the government,

the earlier petition had been dismissed without prejudice upon a voluntary motion to

dismiss filed before a ruling on the merits but after the district court had set a date

for an evidentiary hearing. The court held that the second, identical petition was


                                           4
successive because the petitioner had moved to dismiss the first as soon as it became

evident that the district court was going to dismiss on the merits. The petitioner’s

attorney conceded defeat in her motion to withdraw as she had admitted that she

would be unable to sustain the petitioner’s burden of proof at the upcoming hearing.

See also Hurd v. Mondragon, 851 F.2d 324 (10th Cir. 1988) (holding, in a pre-

AEDPA case, that the district court did not abuse its discretion in refusing to dismiss

without prejudice a § 2254 petition which counsel attempted to withdraw after the

magistrate judge had filed findings and recommended that the petition be dismissed).

      In Garrett v. United States, 178 F.3d 940 (7th Cir. 1999), the Seventh Circuit,

however, limited Felder. The court determined that a § 2255 motion filed after two

earlier motions had been voluntarily dismissed was not a second or

successive motion. The first motion was withdrawn after the government had filed

its response but before the movant had received the response. The basis of the

withdrawal was that the motion was the “‘artless’” effort of a layperson without legal

training.” Garrett, 178 F.3d at 941. The second motion was withdrawn four months

after it was filed, but before the government filed its response. The movant again

asserted that he needed someone with legal training to help him clarify the issues for

presentation. The court distinguished Felder by noting that, unlike in Felder, the

movant never conceded defeat. The court held:

             Our cases have required that, in order for a habeas petition
             to be considered successive, the previous motion must

                                          5
             have been denied on the merits. The district court must
             have engaged in substantive review.

Garrett, 178 F.3d at 942.

      We agree with the reasoning of Garrett. Accordingly, because none of the

earlier motions filed by Mr. Haro-Arteaga conceded any claim or were decided on

the merits or after the district court engaged in substantive review, the present

motion is not subject to the gatekeeping provisions of AEDPA.

      The district court order is VACATED and the matter is REMANDED to the

district court for further proceedings consistent with this order.



                                       ENTERED FOR THE COURT

                                       PER CURIAM




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