No. 98-51092 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51092 Summary Calendar

MANUEL GOMEZ HERNANDEZ,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. MO-98-CV-1 -------------------- March 22, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Manuel Gomez Hernandez (TDCJ # 539907) was granted a

certificate of appealability (COA) to appeal the district court’s

sua sponte dismissal of his habeas corpus petition as

procedurally barred. Although the Respondent had argued in the

district court that Hernandez’s petition was successive within

the meaning of

(b), the district court relied on

our holding in In re Gasery,

(5th Cir. 1997),

and determined that the petition was not successive because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-51092 -2-

Hernandez’s prior petition had been dismissed without prejudice

for failure to exhaust state-court remedies. The Respondent

argues that because the district court’s conclusion was in error,

this court lacks jurisdiction over the present cause.

We reject the Respondent’s argument because it ignores the

fact that this court remanded to the district court an

unexhausted claim so that it could either be dismissed as

unexhausted or addressed on the merits. Thus, when the district

court subsequently dismissed the petition for failure to exhaust,

it was in the same procedural posture as that in Gasery,

.

Proceeding to the merits, Hernandez argues that the district

court erred by dismissing his petition as procedurally barred.

Our de novo review of the dismissal reveals no reversible error

by the district court. See Magouirk v. Phillips,

(5th Cir. 1998); Fearance v. Scott,

(5th

Cir. 1995).

AFFIRMED.