Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within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.jose Aldazabal, Petitioner-appellant, v. Kenneth R. Morgan, Respondent-appellee, 151 F.3d 1032 (7th Cir. 1998)

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US Court of Appeals for the Seventh Circuit - 151 F.3d 1032 (7th Cir. 1998) Submitted July 29, 1998. Decided July 29, 1998

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 1369 Rudolph T. Randa, Judge.

Before Hon. RICHARD A. POSNER, Hon. WILLIAM J. BAUER, Hon. DANIEL A. MANION, Circuit Judges.

Jose Aldazabal filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition on the ground that it lacked jurisdiction to consider the petition because Aldazabal had failed to seek leave from this court before filing a successive petition. See Nunez v. United States, 96 F.3d 990 (7th Cir. 1996). The district court denied the request for a certificate of appealability and Aldazabal filed a notice of appeal. Subsequently, this court issued a jurisdictional order asking why the decision of the district court should not be summarily affirmed.

Aldazabal contends, and Morgan concedes, that Aldazabal's present § 2254 petition is not successive. In 1996, Aldazabal filed two virtually identical § 2254 petitions, one of which the district court dismissed without prejudice because Aldazabal had failed to exhaust his state remedies, and the other of which the court dismissed without prejudice as successive. Aldazabal subsequently filed a state habeas petition, attempting to exhaust his state remedies. He then filed the present § 2554 petition. Because Aldazabal's prior petition was dismissed for failure to exhaust state remedies, the renewal of the claims in the petition after state exhaustion does not render the renewed petition successive. Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996).

As an initial matter, we grant Aldazabal's motion to proceed in forma pauperis on appeal. We REMAND the case and instruct the district court to accept Aldazabal's motion. Although we deny Aldazabal's motion for appointment of counsel as moot, we remind Aldazabal that he may renew his motion before the district court.