F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 22 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
RODNEY ALAN GUNDERSON,
Petitioner - Appellant,
vs. No. 99-8052
(D.C. No. 97-CV-258-D)
BILL HETTGAR, Deputy Warden; (D. Wyo.)
ATTORNEY GENERAL OF THE
STATE OF WYOMING,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **
Mr. Gunderson, an inmate appearing pro se, seeks to appeal from the
district court’s dismissal of his habeas petition, 28 U.S.C. § 2254, without
prejudice for failure to exhaust state court remedies. On appeal, he contends that
the district court erred in (1) concluding that his ineffective assistance claim had
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
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.
not been exhausted; (2) relying upon unpublished orders and judgments of the
Tenth Circuit, see 10th Cir. R. 36.3, that are beyond his access; (3) dismissing the
habeas petition, rather than abating it while exhaustion is pursued, allowing
amendment, or ruling on the merits. He also contends that dismissal without
prejudice is improper when it amounts to a dismissal with prejudice because a
second petition would be time-barred. See Aplt. Br. 3I.
Mr. Gunderson was convicted of three counts of aggravated assault and
battery and was sentenced to life imprisonment as an habitual criminal. His
conviction was affirmed on direct appeal. See Gunderson v. Wyoming, 925 P.2d
1300 (Wyo. Oct. 11, 1996). Mr. Gunderson does not indicate that a petition for
certiorari was filed in the Supreme Court; thus, his conviction became final when
the time for seeking certiorari review expired. See 28 U.S.C. § 2254(d)(1); Rhine
v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). Mr. Gunderson did not seek
post-conviction review in the Wyoming courts.
Mr. Gunderson filed his federal habeas petition on October 31, 1997,
alleging (1) prosecutorial misconduct based upon Brady violations; (2) ineffective
assistance of counsel including a jurisdictional argument that the crime was
committed on an Indian reservation; and (3) denial of due process and cruel and
unusual punishment based upon application of new law and the denial of his
petition for rehearing by the Wyoming Supreme Court. At a minimum, Mr.
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Gunderson now concedes that his prosecutorial misconduct claim was
unexhausted, see Aplt. Br. at 3I, and we agree with the district court that the
ineffective assistance of counsel claim was not exhausted either. Mr. Gunderson
argues that his ineffective assistance claim was exhausted in his state direct
appeal when he unsuccessfully sought leave to file a supplemental brief six days
before oral argument. Such an attempt does not constitute a “serious and
meaningful” opportunity for both parties, including the State to exhaust federal
claims. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1991); Satterwhite v.
Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989). The district court’s reliance upon
unpublished orders and judgments for these and other well-established exhaustion
principles did not prejudice Mr. Gunderson.
The district court’s decision to dismiss the habeas petition, rather than
abate the proceedings, so as to possibly prevent the running of the one-year
limitation period contained in 28 U.S.C. § 2244(d)(1)(A), is reviewed for an
abuse of discretion. See Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
We find no abuse of discretion. Exhaustion is an obvious statutory prerequisite,
see 28 U.S.C. § 2254(c). Wyoming has an available procedure for post-
conviction relief, see Wyo. Stat. Ann. §§ 7-14-101(b); 7-14-103(b) (Lexis 1999),
and waiving the exhaustion requirement, as suggested by Mr. Gunderson, would
not be appropriate. The need to file a state post-conviction proceeding to toll the
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statute, see 28 U.S.C. 2254(d)(2), would seem apparent given the vast difference
in grounds raised upon direct appeal and in the federal petition.
We DENY the Application for a Certificate of Appealability and DISMISS
the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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