                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2874
                                   ___________

Reginald Morgan,                        *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Laurent D. Javois,                      * [UNPUBLISHED]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: October 21, 2011
                                Filed: June 22, 2012
                                 ___________

Before SMITH, ARNOLD, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

      Reginald Morgan, an insanity acquittee, appeals from the district court’s order
denying his 28 U.S.C. § 2254 petition. This court reverses and remands for further
proceedings, and denies as moot Morgan’s motion to dismiss.

       In 1994, Morgan was acquitted of Missouri charges on the ground of mental
disease or defect excluding responsibility. See Morgan v. Rabun, 128 F.3d 694, 695
(8th Cir. 1997) (section 1983 action explaining Morgan’s background). Morgan
suffers from Schizophrenia Chronic Paranoid Type, and was committed for care and
treatment to the Director of the Department of Mental Health. See id. The order of
commitment stated Morgan is not to be released unless the court determines through
procedures provided in Mo. Rev. Stat. § 552.040 (1986) that Morgan does not have,
and in the reasonable future is not likely to have, a mental disease or defect rendering
him dangerous to the safety of himself or others or unable to conform his conduct to
the requirements of the law. See Morgan v. Lacy, 2005 WL 2290578, at *1 (E.D. Mo.
Sept. 20, 2005) (unpublished).

       In January 2005, Morgan filed a section 2254 petition asserting that his
conviction violated the Eighth, Fifth, Thirteenth, and Fourteenth Amendments, that
he was told thirteen years earlier that he would receive treatment for six months, and
that the respondent was “practicing racial hate against [him].” Id. at *2. Morgan
challenged both the 1994 order of commitment, and the state court’s 2004 judgment
and order for partial conditional release. See id. at *4. The district court denied the
petition, holding Morgan’s claims were untimely, procedurally barred, and not
cognizable. See id. at *5.

       In October 2008, Morgan filed another section 2254 petition claiming “the
respondents keep saying [he] is a danger to himself and others if released on
conditional discharge.” In support, Morgan stated he “is rehabilitated and longterm
stay in the hospital is unlawful and [his] illness is in remission.” Morgan specified a
state petition for conditional release was filed in November 2008 and denied on
November 13, 2008, after a hearing.

      The district court dismissed the petition in 2011. The court held that to the
extent Morgan sought to relitigate claims brought in his first petition, the claims
should be denied under 28 U.S.C. § 2244(b)(1), and to the extent Morgan sought to
bring new claims, he first had to obtain this court’s permission to file a successive
habeas petition as required by 28 U.S.C. § 2244(b)(3)(A). The court also held that
even if the petition was not successive, Morgan failed to state a cognizable claim
because he did not allege any constitutional violation. Morgan appeals.



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       Initially, this court concludes Morgan’s current petition is not successive
because his claim based on his 2008 petition for conditional discharge had not arisen
when he filed his first section 2254 petition in 2005. See Crouch v. Norris, 251 F.3d
720, 723-24 (8th Cir. 2001) (holding second section 2254 petition challenging parole-
related constitutional violations not successive because claims were not and could not
have been raised in earlier petition; factual basis of claim unavailable earlier because
parole denied after first section 2254 petition filed). Because Morgan’s section 2254
petition is not successive, Morgan does not need this court’s authorization to file it.
See id. at 723.

       This court also holds Morgan sufficiently stated a facially plausible claim for
relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although Morgan does not
mention any specific statute or constitutional provision, he does say his continued
commitment is unlawful because his illness is in remission. It is clear to us that these
facts give rise to an actionable due process claim under Foucha v. Louisiana, 504 U.S.
71, 77-78 (1992) (keeping committed person against will in mental institution absent
determination in civil commitment proceedings of current mental illness and
dangerousness violates due process). See Whitson v. Stone County Jail, 602 F.3d 920,
922 n.1 (8th Cir. 2010) (pro se complaint must be liberally construed); Earl v. Fabian,
556 F.3d 717, 723 (8th Cir. 2009) (pro se habeas filings must be construed liberally).



      Because Morgan’s petition is not successive and he has sufficiently alleged a
due process violation, this court reverses and remands for further proceedings
consistent with this opinion, and denies as moot Morgan’s motion to dismiss.
                        ______________________________




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