NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.
ORDER
Petitioner appeals the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 as frivolous pursuant to 28 U.S.C. § 1915(d). The district court dismissed the habeas petition sua sponte for failure to allege exhaustion of state court remedies. Petitioner then filed a motion to reconsider the judgment which the district court denied. Next, petitioner filed a timely notice of appeal from that order. Subsequently, the district court entered an order setting aside its judgment, reinstating appellant's habeas petition, and directing the district court clerk to return the petition to appellant pursuant to Rule 2(e), Rules Governing § 2254 Cases, in the event that the instant appeal is dismissed.
In First Nat'l Bank v. Hirsch, 535 F.2d 343 (6th Cir.1976) (per curiam), this court approved a procedure whereby a district court may indicate its willingness to grant a Fed.R.Civ.P. 60(b) motion for a new trial while an appeal in the case is pending before this court. In that event, a motion to remand the case to the district court for further proceedings may properly be granted. Hirsch, 535 F.2d at 346. Here, it is concluded that the district court has indicated its willingness to grant relief from its earlier judgment, and has in fact entered an order to that effect. Although appellant has not filed a motion to remand the case to the district court, it is concluded that a remand is nonetheless appropriate under these circumstances.