Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.james Lammers Petitioner-appellant, v. James Murphy, Respondent-appellee, 993 F.2d 1550 (7th Cir. 1993)

Before COFFEY, MANION and KANNE, Circuit Judges.

ORDER

James Lammers has at least five Wisconsin convictions to his name, one of which was a 1990 conviction for arson-related offenses in Sheboygan County. Lammers sought habeas corpus relief from this conviction, but Judge Stadtmueller summarily dismissed the petition for failure to exhaust state remedies. On April 7, 1992, by which time Lammers had been moved to the Columbia Correctional Institution, Lammers filed another petition, this time with Judge Shabaz in the Western District of Wisconsin, again seeking habeas relief from the conviction for arson-related offenses. In this second petition, he indicated on the court-provided form that he had raised "similar" issues in the first petition. Although he stated that his first petition had been denied, he failed to indicate that the denial had not been on the merits. R. 2. Judge Shabaz dismissed the second petition, assuming that the first petition had indeed been dismissed on the merits.

It appears that Lammers may have cured the defect in his second petition when he moved for reconsideration of Judge Shabaz' dismissal order. In that motion, he explained that his first petition had been dismissed on exhaustion grounds. Judge Shabaz summarily denied the motion for reconsideration. Under these circumstances a remand is necessary. On remand, the district court--either Judge Shabaz or Judge Stadtmueller if Judge Shabaz decides to transfer the case pursuant to 28 U.S.C. § 2241(d)--should consider (1) whether Lammers has exhausted his state remedies, (2) whether he has properly preserved the issues he raises in his petition by presenting them to the state courts, and if so (3) the merits, including whether the second petition is a successive petition barred by 28 U.S.C. § 2244(b).¹ 

VACATED and REMANDED.