*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 18 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEO ORTEGA,

Petitioner-Appellant,

v.

JOHN SHANKS, Warden;

ATTORNEY GENERAL OF THE

STATE OF NEW MEXICO,

Respondents-Appellees.

No. 96-2104

(District of New Mexico)

(D.C. No. CIV-95-832-LH)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges. 

After examining the briefs and the appellate record, this three-judge panel

has unanimously determined 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. 34.1.9. The cause is therefore ordered submitted without oral argument.
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Leo Ortega appeals the dismissal without prejudice of his pro se petition

for habeas corpus pursuant to 28 U.S.C. § 2254. The United States District Court

for the District of New Mexico, adopting the Magistrate Judge’s Report and

Recommendation, dismissed the petition based on the finding that Ortega had

failed to exhaust all of his claims in state court. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291 and § 2253. Under the Supreme Court’s recent

decision in Lindh v. Murphy, the certificate of appealability requirement set out in

the current version of 28 U.S.C. § 2253(c) does not apply to cases prior to April

24, 1996, the effective date of the Anti-Terrorism and Effective Death-Penalty

Act. 117 S.Ct. 2059, 2063 (1997). Applying the law in effect at the time Ortega

filed his petition, this court grants Ortega’s certificate of probable case, reaches

the merits, and AFFIRMS.

On July 6, 1989, Ortega was convicted of two counts of criminal sexual

penetration in the third degree and sentenced to twenty-two years incarceration.

On July 27, 1995, Ortega filed the present petition for writ of habeas corpus in the

United States District Court for the District of New Mexico. Ortega raised before

the district court the same five claims which he raises before this court: 1)

ineffective assistance of counsel; 2) trial court error in failing to strike certain

jurors for cause; 3) trial court error in allowing a state expert to use manipulated

statistics regarding sperm samples; 4) trial court error in allowing prejudicial and
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cumulative witness identification of Ortega’s tattoos; and 5) insufficiency of

evidence to convict. Many of these issues contain sub-issues which this court

does not enumerate.

Because the district court correctly found that Ortega’s petition was mixed,

containing both exhausted and unexhausted claims, we affirm the district court’s

dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509, 510-11 (1982)

(requiring courts to dismiss without prejudice petitions containing both exhausted

and unexhausted claims absent a showing of unusual circumstances); Hernandez

v. Starbuck, 69 F.3d 1089, 1094 (10th Cir. 1995).

“In order to satisfy the exhaustion requirement, a federal habeas corpus

petitioner must show that a state appellate court has had the opportunity to rule on

the same claim presented in federal court or . . . that he had no available state

avenue of redress.” Miranda v. Cooper, 967 F.2d 392, 400 (10th Cir.) (citation

omitted), cert. denied, 506 U.S. 924 (1992). Ortega, without explanation or

support, makes the assertion that he raised “these same five appellate issues” at

every course of the proceedings below. Although Ortega appealed some of these

issues in New Mexico courts, he did not appeal all of them.

Specifically, Ortega’s federal constitutional claims based on the trial

court’s failure to strike juror Carlos Valencia was not presented to New Mexico

state courts either on direct appeal or by petition for writ of habeas corpus. 
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Ortega’s claims that the victim was coached by police to identify Ortega’s tattoos

at trial and that the identification was cumulative were not presented on direct

appeal to the New Mexico Court of Appeals. Ortega’s ineffective assistance of

counsel claims were also not exhausted, as the matter is still pending in state

district court.

Ortega presented the district court with a mixed petition and the district

court thus appropriately held “the petition must be dismissed without prejudice to

afford [Ortega] the opportunity to exhaust his claims through a state postconviction proceeding.”

For the foregoing reasons, this court AFFIRMS the ruling of the United

States District Court for the District of New Mexico. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge