IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-31248 Summary Calendar

JEWEL SPOTVILLE,

Plaintiff-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CV-2585-C - - - - - - - - - - October 30, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Jewel Spotville, Louisiana prisoner # 76147, filed a

petition claiming that he was convicted of

aggravated rape by a nonunanimous jury verdict. The district

court dismissed his petition as an abuse of the writ under Rule

9(b) of the Rules Governing Habeas Corpus Proceedings. See

McCleskey v. Zant,

(1990)(holding that new

claims will be heard in a successive petition only upon showing

cause and prejudice). The district court determined that

Spotville failed to show cause for failing to raise the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-31248 -2-

underlying constitutional issue in any of his four previous

petitions. Nevertheless, the district court granted a

certificate of appealability (COA) on the underlying issue

whether Spotville’s counsel rendered ineffective assistance

because he failed to object to the alleged nonunanimous jury

verdict. Spotville also has filed a motion requesting copies of

the trial transcripts and requesting in particular those portions

of the transcript relating to the polling of the jury. He

asserts that two members of the jury did not concur with the

guilty verdict.

The district court has dismissed with prejudice Spotville’s

petition as procedurally barred and granted a COA on the

underlying constitutional issue. When it granted the COA, the

district court indicated that it had denied Spotville’s petition.

By contrast, the final judgment indicated a dismissal based on

the Rule 9(b) bar. If Spotville’s petition is barred by Rule

9(b), then the district court properly dismissed the petition and

there was no need to address the underlying merits. See Montoya

v. Collins,

(5th Cir. 1993). Because of this

apparent inconsistency in the district court’s rulings, the case

is REMANDED to the district court for the limited purpose of

clarifying its COA. Upon entering a clarifying order, the

district court should return the case to this court for further

proceedings.

REMANDED.