* This order and judgment is not binding precedent, except under the doctrines of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

** The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation. 

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

### AUG 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WALTER BANKS, Petitioner - Appellant, v. RONALD J. CHAMPION, sued as: Ron Champion; ATTORNEY GENERAL OF THE STATE OF OKL, Respondents - Appellees. No. 98-5032 (D.C. No. 95-CV-1074-K) (Northern District of Oklahoma)

ORDER AND JUDGMENT *

Before PORFILIO , MAGILL ** and LUCERO , Circuit Judges.

Walter Banks appeals the dismissal of his 28 U.S.C. § 2254 petition, challenging his conviction for first degree murder. The district court dismissed the petition without prejudice for failure to exhau st state remedies. We dismiss Banks’s appeal as moot. I1 Banks’s claims were based on the post-conviction history of his brother Anthony

who, after unsuccessfully seeking state post-conviction relief, filed a habeas petition in federal district court claiming ineffective assistance of counsel and a Bradyviolation. The district court granted Anthony’s petition and we affirmed, holding that the prosecution committed a Bradyviolation by failing to disclose evidence suggesting that the murder with which the brothers were charged was committed by others, and that Anthony received constitutionally ineffective assistance because counsel had failed to raise the Bradyissue on direct appeal. SeeBanks v. Reynolds , 54 F.3d 1508 (10th Cir. 1995)

. -2- On February 21, 1981, an Oklahoma state court jury convicted appellant Walter Banks and his older brother, Anthony Banks, of first degree murder. The court sentenced Anthony to death and Walter (“Banks ”) to life imprisonment. See Banks v. State , 728 P.2d 497, 499 (Okla. Crim. App. 1986). The c onviction was affirmed on appeal. See id. at 503. In September 1994, Banks unsuccessfully sought state post-conviction relief, alleging that trial and appellate counsel rendered ineffective assistance and that the state failed to disclose exculpatory evidence, in violation of Brady v. Maryland , 373 U.S. 83 (1963). 1 Banks subsequently filed a petition with the Oklaho ma Court of Criminal Appeals, challenging the trial court’s denial of hi s application for post-conviction relief. According to prison logs, Banks mailed hi s petition on January 20, 1995, the filing deadline. The Oklahoma Court of Crimina l Appeals dismissed the petition as untimely, however, because it considere d February 16, 1995, the date the Clerk of Court received the filing fee and dock eted the petition, to be the date the petition was filed.-3-

On October 26, 1995, Banks sought federal habeas re lief, arguing that because he and his brother were subject to the same circumstances at trial, he was entitled to the same habeas relief his brother rece ived based on his Brady violation and ineffective assistance of counsel cla ims. See supran.1. The district court first sought to determine whether Banks had e xhausted available state remedies as required by 28 U.S.C. § 2254(b) and (c) , and found that although Banks had attempted to exhaust state remedies, the state appellate court had effectively imposed a procedural bar on his claims by dismissing his petition. Finding independent and adequate state grounds for application of the procedural bar rule against Banks, the district court then det ermined whether Banks had demonstrated cause and actual prejudice, pursuant t o Coleman v. Thompson , 501 U.S. 722, 724 (1991), to overcome his procedural de fault. Relying, in part, on Woody v. State , 833 P.2d 257 (Okla. 1992), and applying the “mailbox rule,” see Houston v. Lack , 487 U.S. 266, 270 (1988), the district court concluded that because Banks had pla ced his petition in the prison mailbox on January 20, 1995, the filing date, he ha d demonstrated cause for his “untimely” filing. The district court also found t hat Banks had demonstrated actual prejudice because his ineffective assistance of counsel and Bradyviolations claims would have been reviewed on the merits if th e state appellate court had not dismissed his petition as untimely.-4-

The district court thus ordered Oklahoma to grant appellate review to the state district court’s denial of Banks’s applicatio n for post-conviction relief. To ensure compliance with its order, the district court granted a conditional writ of habeas corpus to be issued unless Oklahoma granted Banks an appeal out of time. The state thereupon filed a motion requesting the O klahoma Court of Criminal Appeals to grant Banks a post-conviction appeal outof time. Rejecting the district court’s reliance on the mailbox rule, the Court of Criminal Appeals denied the motion but noted that under Oklahoma Court Rule s, Banks could request an appeal out of time in Tulsa County District Court. See Banks v. State , 953 P.2d 344, 347 (Okla. Crim. App. 1998). Based on this de cision, the Oklahoma Attorney General’s office filed a motion asking the federal district court to reconsider its order granting a conditional writ of habeas corpus. Concluding that Oklahoma court rules allowed Banks to file an appli cation for post-conviction relief out of time, the district court withdrew its earlier decision, granted the State’s motion and dismissed Banks’s habeas petitio n without prejudice for failure to exhaust state remedies. Banks then filed an application for post-convictio n appeal out of time in the state district court. While a decision on his appl ication was pending, Banks obtained a certificate of probable cause from the d istrict court to appeal the dismissal of his habeas petition. We granted him l eave to proceed in forma-5-

pauperis on appeal, ordered that counsel be appoint ed to represent his interests, and requested supplemental briefing from the partie s on the exhaustion issue. Before the parties submitted their briefs on the ex haustion issue, however, the state trial court denied Banks’s application for po st-conviction appeal out of time, and the Oklahoma Court of Criminal Appeals affirmed

. II “This court will dismiss an appeal as moot, when pe nding an appeal from the judgment of a lower court, . . . an event occur s which renders it impossible . . . to grant [the appellant] any effectual relie f whatever.” In re Material Witness Warrant Nichols , 77 F.3d 1277, 1279 (10th Cir. 1996) (internal quo tation omitted). In Odum v. Boone , 62 F.3d 327 (10th Cir. 1995), we applied this rul e within the context of a challenge to the dismissal of a habeas petition for failure to exhaust state remedies. There, the district cou rt dismissed Odum’s petition for federal habeas relief because he had failed to exha ust state remedies. Having exhausted state remedies, Odum filed a second habea s petition which the district court also denied. On appeal, he argued that the d istrict court abused its discretion in dismissing his first petition for fai lure to exhaust. Declining to reach the exhaustion issue, we held that “it is irr elevant whether dismissal of [Odum’s] first petition was correct; that issue is now moot because all of the previously unexhausted claims are now exhausted.” Id. at 333.-6-

In the case now before us, the district court dismi ssed Banks’s petition for failure to exhaust state remedies because it conclu ded that under state rules, he could file an application for post-conviction relie f out of time. Banks thereupon filed such an application, which the state court de nied while his appeal of the district court’s dismissal of his petition was pend ing. Were we to consider the exhaustion issue and hold that exhaustion was requi red, we would be affirming the district court’s findings, thereby affording Banks no relief. If, however, we were to conclude that exhaustion was not required, we would similarly be affording Banks no relief as he has completed the e xhaustion process. This order does not address the merits of Banks’s h abeas petition. The district court dismissed the petition without preju dice for failure to exhaust state remedies. The state courts’s denial of Banks’ appl ication for post-conviction relief while his appeal was pending in this court h as rendered the exhaustion issue moot, and we DISMISS this appeal. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge