FILED
United States Court of Appeals
Tenth Circuit
May 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JASON P. HINZO,
Petitioner - Appellant,
No. 10-2043
v. (D.C. No. 1:09-CV-00489-MCA-LFG)
(D.N.M.)
GEORGE TAPIA, Warden; GARY K.
KING, Attorney General of the State
of New Mexico,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, EBEL, and LUCERO, Circuit Judges. **
Petitioner-Appellant Jason Hinzo, a state inmate appearing pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s dismissal of his
habeas petition on the ground that it was a mixed petition, containing both
exhausted and unexhausted claims. See 28 U.S.C. § 2254(b) (exhaustion
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
requirement); Rhines v. Webber, 544 U.S. 269, 273 (2005) (summarizing Rose v.
Lundy, 455 U.S. 509, 518-19 (1982)); see also Allen v. Zavaras, 568 F.3d 1197,
1201 n.7 (10th Cir. 2009) (discussing mixed petitions and Rhines). Because the
district court erred in dismissing some of the claims with prejudice on the merits
and others without prejudice for failure to exhaust, we grant a COA, reverse, and
remand.
Mr. Hinzo instituted this 28 U.S.C. § 2254 action to challenge his New
Mexico state court conviction. He alleged, inter alia, ineffective assistance of
counsel, due process violations, and improper sentence enhancements. R. 5-13.
In total, Mr. Hinzo raised nineteen grounds for relief. R. 5-13, 370-71. He raised
one of these grounds on direct appeal and sought review of the state appellate
court’s decision. R. 61-65 (Court of Appeals), 117 (Supreme Court). He raised
one of these grounds in state court in a motion to amend his judgment and
sentence. R. 22-24. The motion was denied, and Mr. Hinzo did not seek
certiorari. R. 22-24. He raised eleven of these grounds in his state habeas
petition, which was dismissed by the state district court. R. 345-49. Again, Mr.
Hinzo did not seek certiorari. Six of the claims were never presented to New
Mexico state courts.
The magistrate judge concluded that only one of the claims had been
properly exhausted. R. 371. Because Mr. Hinzo failed to demonstrate cause and
prejudice or a fundamental miscarriage of justice for failure to exhaust twelve of
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his claims, see Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000), the
magistrate judge recommended that they be dismissed with prejudice as
procedurally barred. R. 370-72. Noting that Mr. Hinzo had not indicated that he
would like to proceed on the single exhausted claim despite being given several
opportunities to do so, the magistrate judge recommended dismissing that claim
also. R. 370. The district court adopted the magistrate’s report and
recommendation and dismissed the petition. R. 410-413. The claims found to be
procedurally barred were dismissed with prejudice; all other claims were
dismissed without prejudice. R. 412-13.
A COA is a jurisdictional prerequisite to our review, Miller-El v. Cockrell,
537 U.S. 322, 327 (2003), and we may issue one “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2). In addition, where a district court denies a petition on procedural
grounds, a COA will issue only when the district court’s procedural ruling is
reasonably debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the
district court’s procedural ruling is in error, and we are persuaded that the
appropriate course is to grant a COA, reverse, and remand as we have done
before. See Snyder v. Ortiz, 288 F. App’x 505, 509 (10th Cir. 2008).
Exhaustion of state court remedies is normally required. 28 U.S.C. §
2254(b)(1)(A). “The exhaustion requirement is satisfied if the federal issue has
been properly presented to the highest state court, either by direct review of the
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conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36
F.3d 1531, 1534 (10th Cir. 1994). Mr. Hinzo failed to exhaust most of his claims
by not seeking certiorari from the denial of post-conviction remedies. He also
failed to raise six of his claims before any New Mexico state court. Therefore, he
did not exhaust these claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (federal courts may not grant habeas unless the prisoner has “give[n] the
state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process”). Mr.
Hinzo, however, presented one properly exhausted claim in his habeas petition.
Because Mr. Hinzo’s petition includes both an exhausted claim and claims
that have never been raised in state court, the conclusion that his petition is mixed
is not reasonably debatable. “[A] district court faced with a habeas petition
containing unexhausted claims may either (1) dismiss the entire petition without
prejudice in order to permit exhaustion of state remedies, or (2) deny the entire
petition on the merits.” Moore v. Schoeman, 288 F.3d 1231, 1235-36 (10th Cir.
2002). Our precedent provides “that it is the entire petition that must be resolved
on the merits, not just individual non-exhausted claims.” Id. at 1235. Here, the
court pursued a hybrid approach—dismissing some claims with prejudice (a
disposition on the merits) and others without prejudice. While the court could
have denied the entire petition on the merits had it deemed that Mr. Hinzo’s
unexhausted claims were patently meritless, Moore forecloses the sort of hybrid
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approach adopted here. Id. at 1235-36 (“There is no authorization to adopt the
hybrid approach the district court pursued in this case.”). The district court must
choose one of the two valid approaches.
Accordingly, we GRANT a COA, and REVERSE AND REMAND for
further proceedings.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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