Nature of the Case
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Facts
P was convicted of second-degree murder. His direct appeal was unsuccessful. P filed a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. P decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because under the exhaustion of remedies rule explained in Rose v. Lundy a federal court was required to dismiss a petition presenting claims not yet litigated in state court. P filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust the new claims. Without objection by D, the District Court ordered the habeas petition dismissed 'without prejudice.' The state postconviction proceedings were a bust and P filed a new federal habeas petition. D moved to dismiss the petition arguing that P's petition must be dismissed because it was a mixed petition, that is to say, a petition raising some claims which had been presented to the state courts and some which had not. D also claims P's writ must be dismissed as an abuse of the writ. The court held that the writ was 'a second or successive petition,' even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. It dismissed P's claims with prejudice. P filed a pleading captioned 'Notice of Appeal.' Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the pre-AEDPA version of 28 U.S.C. § 2253; and it denied a CPC, concluding the appeal would raise no substantial issue. The Court of Appeals likewise denied a CPC. The Supreme Court granted certiorari. P contends that he is entitled to an appeal of the dismissal of his petition, arguing that the District Court was wrong to hold that his 1995 petition was 'second or successive.'
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