                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                         ________________________
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 04-14279                    January 18, 2006
                          ________________________           THOMAS K. KAHN
                                                                   CLERK
                    D. C. Docket No. 04-01428 CV-T-23-MSS

KENNETH LEBLING,

                                                               Petitioner-Appellant,

                                      versus

SECRETARY FOR THE DEPARTMENT OF
CORRECTIONS, ATTORNEY GENERAL
OF FLORIDA,

                                                              Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                               (January 18, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.

PER CURIAM:

      Appellant filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§2254. The district court reviewed the petition and concluded: “Lebling represents
on page three in his petition that he had re-submitted a motion for post-conviction

relief to the state courts, which is still pending. Consequently, this action is

premature.” The district court then sua sponte dismissed the petition as premature.

       A comparison of the claims raised in the §2254 petition and the then pending

state court motion demonstrates that those claims raised in the §2254 petition are

not involved or included in the claims raised in the state court matter.

Consequently, as the government concedes, it is apparent now that the claims in

Lebling’s §2254 petition were fully exhausted and ripe for review. The dismissal

was a result of a misunderstanding and error.

       The government urges other grounds for our affirmance of the dismissal and

now suggests further discovery is necessary to determine if the petition is barred

for being successive. All of these arguments should be presented to the district

court in the first instance.

       The order of dismissal is vacated and the matter remanded to the district

court for further consideration.

       VACATED and REMANDED.




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