F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD DEAN SMITH,
Petitioner-Appellant,
v. No. 97-6378
(D.C. No. 97-CV-756)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, LOGAN, and LUCERO, 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This order and judgment is not binding precedent, except under the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.
Petitioner Richard Dean Smith appeals from the district court’s order
dismissing without prejudice his petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2254. We grant petitioner’s applications for leave to
proceed in forma pauperis and for a certificate of appealability, see 28 U.S.C.
§ 2253(c), and remand the case for further proceedings.
Petitioner was convicted in an Oklahoma state court of three counts of
second degree murder for intentionally driving his automobile into a group of
Indian children walking on the shoulder of a highway, killing three of them.
See Smith v. State, 674 P.2d 569 (Okla. Crim. App. 1984). He maintains that he
was administered an overdose of a tranquilizer without his knowledge or
permission while at a bar prior to driving into the group of children.
The district court determined that the petition contained claims that had
not been exhausted in state court, as well as claims that had been exhausted, and
dismissed it as a mixed petition. Petitioner appeals, alleging that the claims not
raised in his direct criminal appeal were presented to the state’s highest court in
a petition for a writ of mandamus, which was subsequently denied.
Our review of the district court’s legal conclusions is de novo; we afford
a presumption of correctness to the state court’s findings of fact unless not fairly
supported by the record. See Sena v. New Mexico State Prison, 109 F.3d 652,
653 (10th Cir. 1997).
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The district court found that petitioner had raised the following issues in
his direct criminal appeal: (1) there was insufficient evidence that petitioner had
the requisite state of mind for second degree murder, (2) petitioner’s audiotaped
inculpatory statements were not voluntary and should not have been played for
the jury, (3) the prosecutor improperly inflamed the passions of the jury during
closing arguments, and (4) petitioner’s sentences were improperly imposed to run
consecutively. The claims the district court found to be unexhausted are:
(a) there is a “reasonable certainty” that a bar patron will not be administered a
central nervous system tranquilizer without his knowledge or permission, and then
be allowed to leave the bar without having been warned; and (b) the evidence that
petitioner was administered a central nervous system tranquilizer before he left
the bar was omitted from his trial, and he was suffering from central nervous
system damage during his trial, thus rendering him incompetent to stand trial.
The record reflects that these two claims were included in petitioner’s application
for writ of mandamus filed with the Oklahoma Supreme Court, who transferred
the mandamus proceedings to the Oklahoma Court of Criminal Appeals. In
denying the mandamus petition, the Oklahoma court held that petitioner had
waived the right to raise these issues because they could have been included in
his direct criminal appeal, but were not. Even though the mandamus procedure
did not fairly present the merits of petitioner’s new claims to the Oklahoma state
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courts, those claims are effectively exhausted because they are now procedurally
barred under Oklahoma law. See Parkhurst v. Shillinger, 128 F.3d 1366, 1370
(10th Cir. 1997) (even though claim was not fairly presented to state court, claim
was “exhausted in reality” because it was procedurally barred); see also Hardiman
v. Reynolds, 971 F.2d 500, 502 (10th Cir. 1992) (“Oklahoma in most situations
precludes a prisoner from raising on collateral attack an issue that could have
been, but was not, raised on direct appeal.”) (citing Webb v. State, 661 P.2d 904,
905 (Okla. Crim. App. 1983)).
“Where the reason a petitioner has exhausted his state remedies is because
he has failed to comply with a state procedural requirement for bringing the
claim, there is a further and separate bar to federal review, namely procedural
default.” Parkhurst, 128 F.3d at 1370. Accordingly, even though we conclude
that petitioner has exhausted his state court remedies, we do not consider the
merits of those claims absent a showing of cause for the default and prejudice
resulting therefrom. See id. at 1371. Because we have raised sua sponte the
issue of procedural bar, petitioner must be provided an opportunity to respond.
See Hardiman, 971 F.2d at 501-02. Therefore, we must remand this case to the
district court to grant petitioner leave to demonstrate cause for his procedural
default and resulting prejudice, or that a miscarriage of justice will occur if his
claims are not considered. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)
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(“In all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.”). “‘[T]he existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some objective factor
external to the defense impeded [petitioner’s] efforts to comply with the State’s
procedural rule.’” Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). The district court should also
consider the merits of any claims properly before it.
The cause is REMANDED to the United States District Court for the
Western District of Oklahoma for further proceedings consistent with this
order and judgment. The mandate shall issue forthwith.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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