IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31114 Summary Calendar

DENNIS RAY WASHINGTON,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 94-CV-1520 - - - - - - - - - -

September 27, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Dennis Ray Washington, Louisiana state prisoner # 85946,

filed a motion for reconsideration of a previously denied

petition. The § 2254 petition was originally filed

on August 15, 1994, and denied on November 21, 1995. In his

original petition, Washington raised the following arguments:

1) the reasonable doubt instruction given by the trial court was

unconstitutional under the Supreme Court’s holding in Cage v.

Louisiana,

(1990); 2) there was insufficient evidence

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-31114 -2-

to support Washington’s conviction; and 3) Washington’s attorney

rendered ineffective assistance.

The current motion for reconsideration was filed on August

28, 1998. In addition to requesting reconsideration of his

former arguments, Washington argues that this court’s holding in

Humphrey v. Cain,

(5th Cir.), cert. denied,

(1998) gives retroactive application to the Supreme

Court’s holding in Cage, thereby entitling Washington to relief

under § 2254. Washington recognized that his petition would be

barred if filed as a request for permission to file a successive

habeas petition. Consequently, he urged the district court to

reconsider his original § 2254 petition.

The district court denied Washington’s motion for

reconsideration, but granted a certificate of probable cause

(CPC). Washington’s petition is now before this court as a

result of the district court’s granting a CPC.

This court reviews a district court’s denial of a Fed. R.

Civ. P. 60(b) motion for abuse of discretion. Carimi v. Royal

Caribbean Cruise Line, Inc.,

(5th Cir. 1992).

This court has explained that a district court may construe a

motion for reconsideration under Rule 60(b) as a request to file

a successive habeas petition, and then dismiss the request for

lack of jurisdiction. See United States v. Rich,

(5th Cir. 1998), cert. denied,

(1999)(§ 2255

case); Williams v. Whitley,

, 230 n.2 (5th Cir.

1993). No. 98-31114 -3-

The district court’s denial of the motion for

reconsideration, yet at the same time granting a CPC, appears to

be inconsistent. The district court explained in its order that

it would not allow Washington to circumvent the requirements for

filing successive habeas petitions when it denied his motion for

reconsideration, yet it did not dismiss the petition for lack of

jurisdiction. See

(b)(3)(A). On the other hand,

the district court gave validity to Washington’s procedural

method seeking reconsideration of an already defeated § 2254

motion by granting a CPC.

Accordingly, the district court’s orders denying

Washington’s motion for reconsideration and granting CPC are

VACATED and the case REMANDED to the district court for further

proceedings.

On remand, the district court should clarify whether it

treated Washington’s petition as a request to file a successive

habeas petition, in which case it should have been dismissed for

lack of jurisdiction. See § 2244(b)(3)(A). In the alternative,

the district court should explain the basis for considering

Washington’s motion for reconsideration to be a valid procedural

method, thereby permitting Washington to proceed on appeal from

his original § 2254 petition. If, on remand, the district court

still determines that a CPC is justified, it should address

Washington’s arguments relating to sufficiency of the evidence

and ineffectiveness of counsel.

VACATE and REMAND.