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Submitted: February 25, 1999

The petitioner moves for: (1) a certificate of appealability, authorizing an appeal of the denial of his motion under Fed. R. Civ. P. 60(b) to vacate a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, District Judge), that denied a writ of habeas corpus; and (2) authorization to file a second habeas petition. The Court of Appeals (Leval, J.) holds: (1) the district court properly elected not to treat the Rule 60(b) motion as a successive habeas petition and properly denied the motion; (2) as to the two claims the petitioner seeks to raise in the second petition, (i) the claim that was dismissed in his first petition by reason of his failure to exhaust state remedies may be raised without our authorization, because the successive petition rules of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. � 2244(b), do not apply to claims dismissed for failure to exhaust, and (ii) the claim not raised in the first petition may not be raised in the second petition because, regardless whether the AEDPA successive petition rules apply where the first petition was filed prior to the AEDPA’s effective date, petitioner would not be permitted to file this claim under the law governing the filing of successive petitions at the time he filed his first petition.

Motion granted in part and denied in part.

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