F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES E. CAGLE,
Petitioner-Appellant,
v. No. 97-7052
(D.C. No. 96-CV-5-S)
RON CHAMPION; ATTORNEY (E.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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. Therefore, the case is
ordered submitted without oral argument.
James E. Cagle appeals the district court’s dismissal of his petition for writ
of habeas corpus under 28 U.S.C. § 2254. He contends the court erred in
*
This order and judgment is not binding precedent, except under the doctrines of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.
dismissing his claims for failure to exhaust state remedies. We deny a certificate
of probable cause and dismiss the appeal. 1
In his petition before the district court, Cagle asserted (1) the trial court
erred in failing to sever his trial from that of his codefendant; (2) his sentence
was excessive; (3) he was denied the opportunity to present a defense; (4) there
was insufficient evidence to support his conviction; and (5) the Court of Criminal
Appeals erred in its rulings on his direct appeal issues. He conceded that Issue 5
had not been presented to the Oklahoma state courts. Respondents moved to
dismiss for failure to exhaust state remedies. Cagle responded with a motion to
dismiss respondents’ motion to dismiss, which the district court construed as a
motion to amend his petition to include only claims that had been exhausted.
Cagle also filed a motion to consolidate with another habeas case, which the court
construed as a motion to amend to include grounds for relief raised in the other
case (which had been dismissed). The court granted the motions and gave Cagle
twenty days to file an amended petition. Rather than amend his petition, Cagle
1
Since Cagle filed his § 2254 petition on December 5, 1995, the Antiterrorism
and Effective Death Penalty Act of 1996 does not apply. See Lindh v. Murphy, 117 S. Ct.
2059 (1997); United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).
Therefore, we construe Cagle’s appeal as a request for a certificate of probable cause.
See Hernandez v. Starbuck, 69 F.3d 1089. 1090 n.1 (10th Cir. 1995). A certificate of
probable cause will be granted only if petitioner makes “a substantial showing of the
denial of an important federal right by demonstrating that the issues raised are debatable
among jurists, that a court could resolve the issues differently, or that the questions
deserve further proceedings.” Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994).
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objected to the order, arguing the court lacked jurisdiction to order an amended
petition to include grounds raised in the dismissed case which had been appealed
to this court. Cagle still had not filed an amended petition nearly four months
later and the court dismissed the case for failure to exhaust state court remedies.
Under the law applicable here, a federal court cannot consider the merits of
a state prisoner’s habeas petition until the prisoner has exhausted available state
remedies. 2 In Rose v. Lundy, 455 U.S. 509 (1982), the Court held district courts
must dismiss “mixed petitions” containing both exhausted and unexhausted
claims, leaving petitioners with the choice of returning to state court to exhaust
claims or amending their habeas petitions to present only exhausted claims to the
federal courts.
The cases relied on by Cagle actually support the district court’s decision.
In Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996), the court held it was not
error to require Williams to choose between deleting unexhausted claims or
having his petition dismissed without prejudice to permit exhaustion. In Ross v.
Petsock, 868 F.2d 639, 642 (3d Cir. 1989), the court held Ross should be given
the opportunity to amend his petition to delete unexhausted claims and proceed
2
Since the petition was filed before the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, the amendment to 28 U.S.C. § 2254(b) which
permits federal courts to deny on the merits claims that have not been exhausted in state
court is inapplicable.
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solely on his exhausted claims. Here, the district court gave Cagle an opportunity
to amend his petition to present only exhausted claims but he failed to do so.
Consequently, dismissal was appropriate.
Cagle asserts in the alternative that the district court erred by dismissing his
petition with prejudice so he could not pursue his unexhausted claims in state
court. Dismissal of a habeas petition for failure to exhaust state remedies is
ordinarily without prejudice to enable petitioner to pursue those remedies.
Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997). The district court did not
specify that the dismissal was with prejudice and we construe it as a dismissal
without prejudice.
Cagle’s application for a certificate of probable cause is DENIED and this
appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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