* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 20 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MATTHEW JAMES GRIFFIN,

Petitioner-Appellant,

v. TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.

MATTHEW JAMES GRIFFIN,

Petitioner-Appellant,

v. TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 00-2347 (D.C. No. CIV-97-1560-LH/JHG)

(D. N.M.)

No. 01-2304 (D.C. No. CIV-00-949-JP/RLP)

(D. N.M.)

ORDER AND JUDGMENT *-2-

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate records, this panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. Petitioner, a former Albuquerque police officer, wa s convicted by a New Mexico jury in 1991 of felony murder, aggravated bu rglary, five counts of armed robbery, and tampering with evidence. Petitioner’s convictions were upheld on direct appeal and in state collateral proceedings. His subsequent attempts to secure federal habeas relief have followed a tortuo us path. He currently seeks to appeal the dismissal of two federal habeas petition s he filed pursuant to 28 U.S.C. § 2254. On December 8, 1997, petitioner filed a timely fede ral habeas petition alleging nine grounds for relief. On June 12, 1998 , after the State filed a motion to dismiss, the district court appointed the Federa l Public Defender for New Mexico to represent petitioner and ordered the State to file all state court records and to notify the court and petitioner whenthe record was filed. Petitioner was given thirty days after the filing o f the state court record to respond to the State’s motion to dismiss. Shortly thereafter, the Federal Public1 Petitioner contends that the record filed by the St ate is not complete

because it is missing a transcript of the hearing h eld by the state court in post-conviction proceedings. Petitioner urged his counsel to bring this omission to the attention of the district court, but counsel did not. Petitioner continues to argue that, because he was not present at the heari ng, he must be given an opportunity to review the transcript in order to fu lly address the State’s arguments against habeas relief. -3- Defender moved to withdraw due to a conflict of int erest. The district court granted the motion to withdraw and ordered that newcounsel be appointed. On July 9, 1998, attorney Allen Kerpan was appointe d to represent petitioner. On September 30, the State filed the state court record. 1 By order entered January 5, 1999, the district court gave petitioner’s counsel until February 5 to respond to the outstand ing motion to dismiss. On February 4, counsel filed a motion for extension of time seeking an additional twenty days in which to respond to the motion to di smiss. Meanwhile, petitioner, not having been able to contact his counsel for sev eral weeks, and not knowing that his counsel was going to seek an extension of time, filed a pro se response to the motion to dismiss. This prompted petitioner’s counsel to write petitioner and chastise him for filing pro se pleadings while bein g represented by counsel, and prompted the government to move to strike the pro s e pleading. The court subsequently granted the motion to strike. On February 25, counsel filed a response to the mot ion to dismiss, which he asked be substituted for petitioner’s pro se respon se. On May 3 the magistrate-4-

judge issued a report recommending that the motion to dismiss be denied, which the district court later adopted. Meanwhile, howev er, the court set a briefing schedule on the merits of the habeas petition givin g petitioner until June 2 to file an opening brief. On May 25, counsel for petitioner filed a motion fo r extension of time, seeking an additional six months to file an opening brief. In his motion, counsel said that petitioner wanted to participate in the s trategy and drafting of the brief and counsel was trying to negotiate this with him, that petitioner had been transferred out of state and counsel was still tryi ng to locate him, and that counsel needed more time to review the voluminous state cou rt record. By order of June 1, the district court generously granted couns el the requested extension, giving him until December 2 to file his opening bri ef. On November 4, however, counsel filed a motion to w ithdraw. Counsel stated that he had been in the process of preparing the opening brief, but that petitioner wanted to pursue a strategy with which c ounsel did not agree. Counsel also said that petitioner had not responded to his last two letters. Counsel therefore asked to withdraw on the ground that he and petitioner were unable to agree on a common strategy. Alternatively, counsel asked to withdraw on the ground that the representation would result in an unreasonable financial burden on him if the court were to enforce the statutory c ap for compensation under the2 This motion qualified as a tolling motion under Fed . R. App. P. 4(a)(4). -5- Criminal Justice Act. Notably, counsel’s motion di d not conform to the District of New Mexico’s Local Civil Rule 83.8(b), which requires that the attorney serve a copy of the motion to withdraw on his client and that he give notice in the motion that the client has to file and serve any objection within fourteen days or be deemed to have consented to the motion. Counsel did neither. By order entered November 10, the district court gr anted counsel’s motion to withdraw, and ordered petitioner to proceed pro se. There is no indication in the record, however, that this order was served on petitioner. Nothing further transpired in the case until June 28, 2000, when th e district court entered an order sua sponte dismissing the case for failure to prose cute. On June 30, petitioner filed a second habeas petiti on that was virtually identical to the first, which the district court do cketed as a new case. On July 11, petitioner filed a motion in the first action seeki ng to vacate the order of dismissal and consolidate the two habeas actions. 2In his motion, petitioner said that he was not served with a copy of his counsel’s motion to w ithdraw, but that he did learn of the withdrawal by letter from counsel of Decembe r 13, 1999. Petitioner said he assumed that when his counsel withdrew, the court would appoint new counsel to represent him, as it had done when the Federal P ublic Defender withdrew. Petitioner also stated that he was unaware that the court had ordered him to-6-

proceed pro se, because he never received a copy of the court’s November 10 order. Finally, petitioner said his transfer from New Mexico in May 1999 caused him to lose all his legal materials, which h e was not able to recover until January 2000. Petitioner noted that as soon as he learned of the court’s dismissal of his habeas petition, he took immediate correctiv e action by refiling it. He therefore asked that the court vacate its order of dismissal and consolidate the two habeas petitions. The district court denied petitioner’s motion to va cate on September 8, 2000, stating only that “the motion is not well tak en.” R., Vol. I, Doc. 41 (No. 00-2347). Thereafter, petitioner filed furthe r objections with the district court, to which he attached correspondence between himself and his attorney to show his understanding of events. Petitioner objec ted to the manner in which his counsel was permitted to withdraw without first giv ing him notice and an opportunity to object. Petitioner also objected to the court’s dismissal of his petition without prior notice, especially since he had not been served with a copy of the court’s order directing him to proceed pro s e and had previously been chastised for filing a pleading pro se while being represented by counsel and had the pleading stricken. Petitioner filed a timely appeal from the court’s dismissal of his habeas petition and denial of his motion to vacate, which we docketed as
No. 00-2347.-7-

Meanwhile, the district court went forward on petit ioner’s second habeas petition. The State moved to dismiss this petition , arguing that it was untimely because it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner filed motions seek ing the appointment of counsel and access to various legal materials, which the di strict court did not address. Based on this court’s holding in Petrick v. Martin , 236 F.3d 624, 629 (10th Cir. 2001), that the limitations period in § 2244(d)(2) is tolled during the pendency of a federal habeas proceeding, the magistrate judge i nitially concluded that the second petition was timely. After the Supreme Court effectively overruled Petrick in Duncan v. Walker , 533 U.S. 167, ___, 121 S. Ct. 2120, 2129 (2001), by holding that a federal habeas petition “is not an ‘application for State post-conviction or other collateral review’” that w ill toll the statute of limitations under § 2244(d)(2), the State renewed its motion to dismiss. The magistrate judge agreed that the petition was untimely and recommend ed that it be dismissed. Petitioner filed timely objections to the magistrat e judge’s report, arguing that under the particular circumstances of his case , the court should toll the statute of limitations. Among other things, petiti oner noted that if the court did not either treat his second petition as relating ba ck to the filing date of his first petition, or equitably toll the statute of limitati ons, then the dismissal of his first petition would effectively be a dismissal with prej udice, because he could not-8-

possibly file another timely petition. The distric t court adopted the magistrate judge’s recommendation and dismissed the petition a s untimely without addressing petitioner’s equitable tolling argument. Petitioner filed a timely appeal, which we docketed as No. 01-2304. Because petitioner’s two appeals are closely relate d, we will consider them together in the interests of judicial economy. Bef ore petitioner may proceed in either appeal, however, he must first obtain a cert ificate of appealability (“COA”) from this court by making a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this show ing, petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encourage ment to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Where, as here, the district court denies a habeas petition o n procedural grounds without reaching the underlying constitutional claims, the petitioner is not entitled to a COA unless he can show both that “jurists of reas on would find it debatable whether the petition states a valid claim of the de nial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack , 529 U.S. at 484.-9-

Our review of the underlying merits of petitioner’s claims is necessarily limited because petitioner’s actions were dismissedbefore he had an opportunity to develop the factual and legal bases of his claim s in the district court, the district court did not rule on the merits of those claims, and the parties have not briefed the merits on appeal. Therefore, “[w]e wil l only take a quick look at the federal habeas petition[s] to determine whether [pe titioner] has facially alleged the denial of a constitutional right.” Gibson v. Klinger , 232 F.3d 799, 803 (10th Cir. 2000) (quotations and original alteratio ns omitted). After reviewing the habeas petitions, we conclude that petitioner h as satisfied the first prong of the COA analysis, because “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,” Slack , 529 U.S. at 484. Specifically, we conclude that atleast one of petitioner’s claims, which include that the evidence was insufficient to convict and that the jury instructions erroneously shifted the burden to peti tioner to disprove the existence of a material element, debatably states a claim forthe denial of a constitutional right. We turn, then, to the second prong of the COA analy sis, which concerns the procedural issues raised by each appeal. In appeal No. 00-2347, petitioner raises four procedural issues: whether the court erred inallowing petitioner’s counsel to withdraw where the motion to withdraw and the orderpermitting withdrawal were-10-

not served on petitioner; whether the court erred i n dismissing the action as a sanction for petitioner’s failure to prosecute wher e the order directing petitioner to proceed pro se was not served on petitioner; whe ther the court erred in denying petitioner’s motion to vacate the dismissal and con solidate the two habeas actions; and whether the district court should have tolled the limitations period during the pendency of petitioner’s first federal h abeas petition. In appeal No. 01-2304, petitioner raises the same four issues , as well as two other similar issues: whether petitioner adequately complied with the statute of limitations in § 2244; and whether the district court erred in notconsolidating the two habeas actions. Based upon our review, we conclude that petitioner has also satisfied the second prong of the COA analysis, because “jurists of reason would find it debatable whether the district court was correct in its procedural ruling[s],” Slack , 529 U.S. at 484. Specifically, we conclude that itis debatable whether the court was correct in 1) dismissing the first habeas proce eding for failure to prosecute, 2) denying petitioner’s motion to vacate the dismis sal and consolidate the two habeas actions, and 3) not considering whether to e quitably toll the limitations period for the second petition during the pendency of the first habeas proceeding. Therefore, we grant petitioner a COA on these three procedural issues.-11-

A district court may sua sponte dismiss an action f or failure to prosecute without prior notice to the parties under appropriate circumstances. Link v. Wabash R.R. Co. , 370 U.S. 626, 633 (1962). We review the dismissa l of an action for failure to prosecute under an abuse of discretion standard. Joplin v. Southwestern Bell Tel. Co. , 671 F.2d 1274, 1275 (10th Cir. 1982). “To be sur e, such a dismissal is a drastic sanction. It is to b e applied only in extreme situations.” Stanley v. Continental Oil Co. , 536 F.2d 914, 916 (10th Cir. 1976). To determine whether the district court abused its discretion in dismissing petitioner’s habeas action under the circumstances presented here, we must examine the procedural history of the case. Joplin , 671 F.2d at 1275. The procedural history discussed above shows that the district court was very accommodating to petitioner and his counsel. The court appointed counsel to represent petitioner when he requested it; the c ourt then appointed new counsel when the first counsel had a conflict of interest; and the court granted new counsel several extensions of time to file requiredpleadings, including one extension of six months. The court is to be commen ded for its accommodation of petitioner. Nonetheless, given this history of acc ommodation, it is not surprising that petitioner expected the court to appoint new c ounsel to represent him once his counsel withdrew, especially because he had mad e it clear to his counsel that3 That the district court also understood petitioner’ s desire for continued

representation by counsel is evident from its state ment in the order allowing counsel to withdraw that petitioner had not waived the appointment of counsel. -12- he did not wish to proceed pro se. 3 Further, because nothing in the record before us suggests that petitioner was not being truthful when he stated that he did not receive a copy of the court’s order directing him t o proceed pro se, we must assume that he was never disabused of the reasonabl e expectation that new counsel would be appointed to represent him. When we couple petitioner’s expectation that new co unsel would be appointed with the fact that the one time petitione r did file a pro se pleading while he was represented by counsel, he was chastis ed for doing so and his pleading was stricken, we cannot say that petitione r’s failure to file a pro se merits brief was either grossly negligent or tantamount to nonfeasance. See id. at 1276. Nor is there any evidence in the record o f “intentional delay, contumaciousness, or bad faith on the part of [petitioner].” Id. Moreover, as soon as petitioner learned that the court had dismi ssed his action for failure to prosecute, he immediately refiled his habeas petiti on and sought relief from the judgment, explaining why he had not proceeded with his case pro se. Under these circumstances, we conclude that the dis trict court abused its discretion in dismissing petitioner’s habeas actionfor failure to prosecute and in-13-

not reinstating it when petitioner explained the re asons for his inaction. On remand, the district court should reinstate the fir st habeas petition. Petitioner also challenges the district court’s dis missal of his second habeas petition as untimely. The Antiterrorism and Effect ive Death Penalty Act of 1996 (AEDPA), imposed a one-year limitation on a prisone r’s right to apply for habeas relief, which generally runs from the date the pris oner’s conviction became final. 28 U.S.C. § 2244(d)(1)(A). For state prisoners lik e petitioner whose convictions became final before AEDPA’s enactment on April 24, 1996, we recognized a one-year grace period within which they were requ ired to file their habeas petitions. Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). This one-year period is subject to both statutory and equitable tolling. See 28 U.S.C. § 2244(d)(2); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). At the time petitioner filed his first habeas petit ion, there were approximately seventeen days remaining in the one-y ear limitations period. His first petition was pending for approximately two an d one-half years when it was dismissed without prejudice. Petitioner filed his second petition two days after the first petition was dismissed. Therefore, his s econd petition was untimely unless the limitations period was tolled during the pendency of the first petition. The district court, relying on the Supreme Court’s opinion in Duncan v. Walker , ruled that the pendency of the first petition did n ot toll the limitations period.-14-

Duncan , however, speaks only to statutory tolling under § 2244(d), and does not address equitable tolling. We have held that equitable tolling is available “o nly in rare and exceptional circumstances . . . [such as] when a pr isoner is actually innocent, when an adversary’s conduct–or other uncontrollable circumstances–prevents a prisoner from timely filing, or when a prisoner act ively pursues judicial remedies but files a defective pleading during the statutory period.” Gibson , 232 F.3d at 808 (quotation and citations omitted). Petition er argued that the circumstances here were of a similar exceptional nature, so as to warrant equitable tolling of the limitations period. It does not appear from the di strict court’s order that it considered this argument. Therefore, we will rever se the dismissal of petitioner’s second petition and remand to the district court so that it can consider whether equitable tolling is warranted here. On remand, the district court should consolidate th e two habeas proceedings in the interests of judicial economy. Not only are the two habeas petitions virtually identical, but the parties file d additional pleadings in the second action that they did not file in the first a ction because it was prematurely dismissed. Consolidation would obviate any need fo r the parties to refile those pleadings in the first action. The district court should then proceed expeditiously to set an appropriate briefing schedule on the meri ts, bearing in mind that-15-

petitioner has had quite a lot of time to ponder hi s arguments. The court should also consider whether to appoint new counsel to rep resent petitioner, a matter on which we express no opinion. Further, the court sh ould consider whether a transcript of the state post-conviction proceedin gs is necessary to petitioner’s claims and, if so, should determine whether a trans cript or a tape recording of those proceedings can reasonably be made available to petitioner. In addition to his application for COA, petitioner has filed several motions with this court. In particular, petitioner has fil ed a motion to consolidate his two appeals, a motion for appointment of counsel or acc ess to a law library, a motion for sanctions, and a notice of and objection to change of address, which we have construed as an objection to transfer. We grant pe titioner’s motion to consolidate the two appeals for procedural purposes only and de ny the remainder of petitioner’s motions. We previously denied petitioner’s motion for appointment of counsel by separate order. Petitioner’s alternative motion fo r access to a law library complains about the lack of access to legal materia ls in the New Mexico penitentiary. Petitioner, however, does not allege any prejudice flowing from the alleged denial of access to legal materials in New Mexico. See Lewis v. Casey , 518 U.S. 343, 351 (1996) (requiring inmate to “demo nstrate that the alleged shortcomings in the library or legal assistance pro gram hindered his efforts to-16-

pursue a legal claim”). Further, petitioner has be en transferred to a prison in Virginia and is no longer in the New Mexico prison system. Therefore, any complaint about the continued denial of legal mater ials in the New Mexico prison system is moot. Petitioner’s motion for sanctions and his objectionto transfer are related. Petitioner objects to respondent warden having tran sferred him out of New Mexico during the pendency of a habeas appeal witho ut first obtaining court approval, as required by Fed. R. App. P. 23(a), andhe seeks sanctions against respondent for doing so. Specifically, petitioner asks that respondent warden be held in contempt, that he be ordered to return peti tioner to New Mexico, and that he be enjoined from transferring petitioner out of New Mexico in the future. In his response to petitioner’s motion, respondent war den admits that he transferred petitioner out of New Mexico without first seeking court approval and apologizes for this failure, but asks that he not be ordered t o transfer petitioner back to New Mexico for security reasons. Based on the reas ons given by respondent warden for petitioner’s transfer to Virginia and th e lack of any prejudice demonstrated by petitioner as a result of his trans fer, we conclude that the relief sought by petitioner in his motion for sanct ions is not warranted at this time.-17-

In conclusion, petitioner’s application for COA in No. 00-2347 is GRANTED, and the judgment of the district court is REVERSED and the matter REMANDED for further proceedings consistent with th is order and judgment. Petitioner’s application for COA in No. 01-2304 als o is GRANTED, and the judgment of the district court is REVERSED and the matter REMANDED for further proceedings consistent with this order and judgment. Petitioner’s motion for access to a law library, his objection to trans fer, and his motion for sanctions in No. 00-2347 are DENIED. Petitioner’s motion to consolidate appeal No. 00-2347 and appeal No. 01-2304 is GRANTED insof ar as the appeals are consolidated for procedural purposes only.

Entered for the Court

Stephen H. Anderson Circuit Judge