* This order and judgment is not binding precedent, e xcept under the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 2 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEITH JUDD, Petitioner - Appellant, No. 99-2251
v. (D.C. No. CIV-98-662-MV/DJS) JOHN DANTIS, Director, Bernalillo County Detention Center; GARY JOHNSON, Governor, State of New Mexico; and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, (D. New Mex.)

Respondents - Appellees.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining Petitioner’s brief and the appellat e record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument.-2-

Petitioner Keith Judd appeals the district court’s order denying his petition for writ of habeas corpus filed under 28 U.S.C. § 2 254. Pursuant to North Carolina v. Alford , 400 U.S. 25, 37 (1970) (permitting defendant to e nter guilty plea while maintaining innocence because expressed admission of guilt is not constitutional prerequisite to imposition of crimin al penalty), Petitioner pleaded guilty to and was convicted in New Mexico state cou rt of two counts of the use of a telephone to terrify, intimidate, threaten, haras s, annoy, or offend. His sentence was deferred for 728 days on the condition that he comply with the conditions of his supervised probation. According to the magistrate judge’s interpretation, Petitioner raised ten claims in his § 2254 petition, some of which had no t been raised in the state courts. The magistrate judge properly recommended that the “petition be dismissed without prejudice . . . to allow Petition er to exhaust his state court remedies as to all of his claims.” R., Vol. I, Doc . 34 at 3. After consideration of Petitioner’s objections, the district court adopted the magistrate judge’s recommendation. See id. , Doc. 36. The court’s order, however, inexplicabl y dismissed the petition with prejudice. This appeal followed and Petitioner requests a certificate of appealability from this c ourt to determine whether the1 Although the district court did not act on the issu e of a certificate of

appealability, a certificate of appealability is de emed denied by the district court pursuant to the Tenth Circuit Emergency General Ord er of October 1, 1996. See United States v. Riddick , 104 F.3d 1239, 1241 n.2 (10th Cir.), overruled onother grounds byUnited States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 523 U.S. 1053 (1998). -3- dismissal with prejudice was erroneous. 1 He also argues that his state remedies have been exhausted. We grant the certificate of appealability and affir m that portion of the district court’s order dismissing for failure to exhaust, but we reverse and remand for the sole purpose of instructing the district co urt to dismiss withoutprejudice to allow Petitioner the opportunity to present his unexhausted claims to the state courts or to refile a federal habeas petition conta ining only his exhausted claims. See Brown v. Shanks , 185 F.3d 1122, 1125 (10th Cir. 1999); cf. Rose v. Lundy , 455 U.S. 509, 510 (1982). AFFIRMED in part, REVERSED in part, and REMANDED. Entered for the Court

Monroe G. McKAY Circuit Judge