UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AUGUSTINE R. TAPIA, Petitioner,

v. TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL STATE OF NEW MEXICO, Respondents. No. 99-2023

ORDER Filed April 12, 1999

Before PORFILIO , TACHAand MURPHY , Circuit Judges.
The order filed in this matter on March 26, 1999, s hall be published. Entered for the Court, Patrick Fisher, Clerk of Court By: Keith Nelson Deputy ClerkPUBLISH

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AUGUSTINE R. TAPIA, Petitioner,

v. TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL STATE OF NEW MEXICO, Respondents. No. 99-2023

ORDER Filed March 26, 1999

Before PORFILIO , TACHA and MURPHY , Circuit Judges.

This is a matter which was transferred by the distr ict court to determine whether Augustine Tapia, a state prisoner in New Me xico, should be granted authorization to file a second 28 U.S.C. § 2254 pet ition in the district court. Because we conclude that Mr. Tapia’s § 2254 petition filed in the district court is successive, we construe Mr. Tapia’s “Petitioner’s Motion for Re mand to District Court in Lieu2

of Motion for Permission to File Second or Successi ve Petition for Relief” as a request for authorization under 28 U.S.C. § 2244. See Pease v. Klinger , 115 F.3d 763, 764 (10th Cir. 1997)(treating a notice of appe al as a motion for authorization under § 2244). So construed, we deny the request. Mr. Tapia filed his first § 2254 petition in December 1996, af ter the effective date of the Antiterrorism and Effective Death Penal ty Act (“AEDPA”). He argued that his conviction and sentence for aggravated ass ault were invalid because his counsel was ineffective for: 1) allowing the state to int roduce prejudicial evidence; 2) not objecting to the introduction of “prior bad acts” evidence; and 3) failing to allow Mr. Tapia to testify in his own behalf at tri al. He also contended that an improper jury instruction was given and that there should have been a lesser-included offense instruction given. The magistrate judge, t o whom the matter had been referred, determined that the ineffective assistanc e of counsel claim regarding Mr. Tapia testifying had not been exhausted in the stat e courts. Accordingly, he recommended that the petition be dismissed without prejudice as a mixed petition. Mr. Tapia filed objections to the recommendation. He agreed that the petition was a mixed petition and requested “that he be allo wed to go forward with his current petition, and that this Court order [the re spondent] to respond to onlythose issues that have been properly exhausted by the New Mexico courts.” (Emphasis in the original.)3

The magistrate judge then issued an amended recomme ndation, addressing only the exhausted claims. He recommended that the se claims be denied on the merits. The district court adopted both the origin al and the amended recommendations, dismissing without prejudice the unexhausted claim and denying the remaining claims on the merits. No appeal was taken. Mr. Tapia subsequently filed a second § 2254 petiti on in the district court. He raised the claim which had been dismissed for failu re to exhaust in the first § 2254 proceeding as well as additional allegations of ine ffective assistance of counsel. He argued that trial counsel failed to properly invest igate and call an essential witness and that his appellate counsel was ineffective. The district court sua sponte transferred the matte r to this court, concluding that the petition was a second or successive applic ation and that authorization from this court was necessary before the petition could be filed. Mr. Tapia admits that the grounds presented do not meet the criteria for authorization set forth in § 2244(b)(2). Rather, h e argues that, because his present claims were dismissed without prejudice for failure to exhaust, the petition filed in the district court is not a successive or second one underAEDPA. This argument is without merit. The Supreme Court in Felker v. Turpin , 518 U.S. 651 (1996), in upholding the constitutionality of AEDPA’s gatekeeping provisions , stated that these restrictions4

“constitute a modified res judicata rule, a restrai nt on what is called in habeas corpus practice ‘abuse of the writ.’” Id. at 664. The Court then held that the new limits fell within the mainstream of the evolving jurisprudence to curb abuse of the writ. Part of that evolving jurisprudence is Rose v. Lundy , 455 U.S. 509 (1982), a pre-AEDPA case, in which the Supreme Court addresse d the issue of mixed habeas petitions, i.e. those containing both exhausted and unexhausted cl aims. The Court held that where a mixed petition is filed, the district cou rt must dismiss the petition, thus giving the petitioner the choice of either ref iling a petition containing only the exhausted claims or delaying his habeas petition al together pending the exhaustion of all of his claims. Id. at 521. Subsequent statutory authority expresslyprovides that the district court may deny unexhausted claims on the merits. 28 U.S.C. § 2254(b)(2); Hoxsie v. Kerby , 108 F.3d 1239, 1242-43 (10th Cir.), cert. denied, 118 S.Ct. 126 (1997). If the petitioner chose to refile, omitting the une xhausted claims, he ran the risk of having a second petition dismissed as an ab use of the writ. Id. at 520-521. See also Harris v. Champion , 48 F.3d 1127, 1131 (10th Cir. 1995). However, a petition filed after a previously submitted petitio n was dismissed without prejudice was not considered an abuse of the writ. See Camarano v. Irvin , 98 F.3d 44, 46 (2d Cir. 1996). The courts have followed the pre-AEDPA cases on abu se of the writ to5

determine whether a petition is second or successiv e for purposes of AEDPA. See United States v. Scott , 124 F.3d 1328, 1239 (10th Cir. 1997); Reeves v. Little , 120 F.3d 1136, 1139 (10th Cir. 1997). Accordingly, pet itions which have been dismissed without prejudice for failure to exhaust state reme dies do not count as previous petitions for purposes of the gatekeeping provision s of AEDPA. McWilliams v. Colorado , 121 F.3d 573, 575 (10th Cir. 1997). However, as noted above, where a petitioner chose t o file an amended petition, he ran the risk of having the subsequent petition d ismissed as an abuse of the writ if he was unable to meet the requirements for filin g another petition. The Supreme Court’s recent decision in Stewart v. Martinez-Villareal , 523 U.S. 637, 118 S.Ct. 1618 (1998), cited by Mr. Tapia, does not change th is result. Martinez-Villarealheld that an incompetent-to-be-executed claim brought un der Ford v. Wainwright , 477 U.S. 399 (1986), which had been dismissed from a pr eviously filed habeas proceeding because it was not ripe, would not be tr eated as a second or successive habeas application. “There was only one applicatio n for habeas relief, and the District Court ... should have ruled [ ] on each c laim as it became ripe.” 118 S.Ct. at 1621. In the instant case, the issue is exhaustion and no t ripeness. Mr. Tapia chose to pursue the exhausted claims and to abandon the u nexhausted one. Thus MartinezVillarealis inapposite and we conclude that this is a succe ssive application.6

Mr. Tapia argues that he should not be held account able for the decision to pursue only the exhausted claims because he was pro se. There is no constitutional right to counsel in habeas proceedings. See McClesky v. Zant , 499 U.S. 467, 495 (1991). Mr. Tapia’s pro se status does not justifyreconsideration of the choice he made in his prior habeas matter. See Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir. 1991)(holding that in abuse of the writ cases, cause and prejudice standard applies to pro se petitioners just as it applies to petitioners represented by counsel). Mr. Tapia’s application in the district court also presented claims that were not raised in his first petition. To obtain authorization to file a second or success ive habeas petition the movant must make a prima facie showing that the gro unds set forth are based on either a new rule of constitutional law made retroa ctive on collateral review by the United States Supreme Court that was previously unavailable or newly discovered evidence, the factual basis for which could not hav e been discovered previously through the exercise of due diligence, and which would be s ufficient to establish by clear and convincing evidence that no reasonable fa ct finder would have found the movant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). These additional claims, that trial counsel was ine ffective because he failed to properly investigate and call an essential witne ss and that appellate counsel was ineffective, are not addressed by Mr. Tapia at all in his motion filed in this court.7

Accordingly, authorization is denied as to these cl aims as well. The motion to remand is DENIED . Authorization is DENIED

.
Entered for the Court PATRICK FISHER, Clerk of Court