F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES E. CAGLE,
Petitioner-Appellant,
v. No. 96-7109
(D.C. No. 96-CV-12)
RON CHAMPION; ATTORNEY (E.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. James E. Cagle appeals the district court's dismissal of his petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1994).
On October 31, 1995, Mr. Cagle filed a petition for a writ of habeas corpus
raising numerous challenges to his convictions in the District Court of Seminole
County for conspiracy and first degree murder. On August 23, 1996, the district
court issued an minute order dismissing Mr. Cagle's petition solely on the basis
that he "ha[d] a pending case in th[e] court attacking the same conviction."
On appeal, Mr. Cagle contends the district court denied him due process of
law by granting respondents an extension of time in which to respond to his
petition and by dismissing his petition based on a pending petition attacking the
same convictions. Mr. Cagle asserts he is not attacking his convictions in both
petitions, rather he is appealing from rulings or orders issued in two different
courts.
Unfortunately, we cannot review Mr. Cagle's contentions. The district
court's cursory dismissal of Mr. Cagle's petition has left us without the necessary
findings and reasoning to conduct a meaningful review of Mr. Cagle's contentions
on appeal. See Joseph A. by Wolfe v. New Mexico Dep’t of Human Servs., 69
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F.3d 1081, 1089 (10th Cir. 1995) (remanded for necessary findings to facilitate
appellate review), cert. denied, 116 S. Ct. 1678 (1996); ARW Exploration Corp. v.
Aguirre, 45 F.3d 1455, 1459 (10th Cir. 1995) (appellate review impossible
without anything in the record to indicate how the district court made it’s
determination). Based on the district court's minute order and the record on
appeal, we cannot discern whether Mr. Cagle's October 31, 1995, petition is a
successive petition to the "pending case" in the district court subject to dismissal
pursuant to 28 U.S.C. § 2244(b) or is in fact a new petition challenging separate
convictions from a different court, as Mr. Cagle contends. 1
Accordingly, we VACATE the judgment of the district court dismissing
Mr. Cagle's October 31, 1995, petition and REMAND to the district court for
further proceedings consistent with this opinion. Additionally, all other pending
motions are DENIED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
1
If the district court finds Mr. Cagle's petition is a second successive
petition under 28 U.S.C. § 2244(b) and it is without the proper authorization from
this court under 28 U.S.C. § 2244(b)(3), the district court should transfer the
petition to this court pursuant to 28 U.S.C. § 1631 and Coleman v. United States,
106 F.3d 339, 341 (10th Cir. 1997).
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