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Click here for the full text of this decision FACTS:Authorities charged Albert L. Hardemon Jr. in separate indictments with sexual assault of a child (Cause No. 809996) and two counts of aggravated sexual assault of a child (Cause Nos. 809997 and 809998). The counts were consolidated for trial, and Hardemon was found guilty on all three counts. Hardemon received concurrent sentences of 40 years in prison for Cause Nos. 809997 and 809998 and a consecutive 20-year sentence for Cause No. 809996. The state appellate court affirmed the convictions, and the Court of Criminal Appeals refused Hardemon’s petition for discretionary review. Hardemon filed three postconviction habeas corpus applications in state trial court � one for each conviction � challenging his attorney’s effectiveness regarding the petition for discretionary review. The CCA denied each application. Hardemon then filed three new applications in state trial court, each challenging a separate conviction. In Cause Nos. 809997 and 809998, Hardemon argued that: the evidence was factually insufficient to support his convictions; trial and appellate counsel rendered ineffective assistance; and the prosecutor improperly questioned a witness and made an improper closing argument. In Cause No. 809996, Hardemon asserted that trial counsel rendered ineffective assistance and the trial court erred in ordering this sentence to run consecutively with the other sentences. The trial court recommended that relief be denied on various grounds, and the CCA denied all relief. While his second round of state applications was pending, Hardemon filed a 28 U.S.C. �2254 petition in federal district court, challenging his conviction in Cause No. 809996. The district court dismissed the application without prejudice, because the claim was not exhausted. In 2005, after the claim was exhausted, Hardemon filed a second �2254 petition, again challenging his conviction in Cause No. 809996. The district court denied relief on the merits. On or about June 6, 2006, Hardemon filed a third �2254 petition challenging his conviction in Cause No. 809997. He raised the same claims he presented in his second state application challenging the conviction. The district court sua sponte dismissed Hardemon’s case as an unauthorized successive �2254 petition, concluding that it lacked jurisdiction, because Hardemon had not previously received permission from the 5th Circuit to file his petition. The district court reasoned that, under former Rule 2(d) of the Rules Governing Section 2254 Cases in the U.S. District Courts, Hardemon was required to raise all relevant claims arising from any of the judgments of a single state court in his previous �2254 petition. Hardemon filed a timely notice of appeal. The 5th Circuit granted Hardemon a certificate of appealability on the question of whether his current petition was successive. HOLDING:Reversed and remanded. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. �2244, establishes a “gatekeeping mechanism for the consideration of second or successive” habeas petitions. AEDPA, however, did not define the term “second or successive” application. The court noted its previous holdings that a petition is successive when it: 1. raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an earlier petition; or 2. otherwise constitutes an abuse of the writ. Before the 2004 amendments to the rules, Rule 2(d) stated that: “A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court . . . . If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody . . . he shall do so by separate petitions.” Hardemon’s convictions, the court stated, resulted in separate judgments. Thus, the government conceded that former Rule 2(d) applied to Hardemon’s case. The government argued, however, that Hardemon’s petition is successive because: 1. it is undisputed that Hardemon could have raised claims relating to both Cause Nos. 809996 and 809997 in a single petition; and 2. it is undisputed that Hardemon knew the basis of his challenges to both convictions at the time he filed his previous federal petition. Hardemon argued that his current petition was not successive, because he challenged a different judgment of conviction than he did in his previous petition. In this case, the court stated that it was confronted with habeas petitions attacking separate judgments from the same court. While the government presented “a strong policy argument against piecemealing claims,” the court stated that it must base its decision upon the text of AEDPA and the rules. As a result, the court held that under former Rule 2(d), Hardemon was permitted, but not required, to challenge his separate convictions in a single �2254 petition. Therefore, Hardemon’s petition was not “second or successive” within the meaning of �2244. OPINION:Benavides, J.; Reavley, Benavides and Elrod, JJ.

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