*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### NOV 22 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ JESSE GARZA, Petitioner-Appellant,
v. GARY L. GIBSON, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 99-7036 (E.D. Okla.) (D.Ct. No. CV-98-157-S)

____________________________ ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Mr. Garza did not request a certificate of appealability and the district court

made no ruling thereon. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds, United States v. Kunzman , 123 F.3d 1363 (10th Cir. 1997). Accordingly, we construe the appeal as Mr. Garza’s request to this Court for a certificate of appealability. Id.
-2- Appellant Jesse Garza, a state inmate, appeals the district court’s decision dismissing his habeas corpus petition filed pursuant to 28 U.S.C. § 2254 as a “mixed petition” containing both unexhausted and ex hausted claims. We deny Mr. Garza a certificate of appealability, 1 and dismiss his appeal.
In 1972, Mr. Garza, a sixteen-year-old, plead guilty to one count of first degree murder and a jury convicted him of a second count of first degree murder. Mr. Garza received two concurrent terms of life imp risonment. In 1995, while serving his sentence, a jury convicted Mr. Garza of first degree murder for killing his cellmate, and the court sentenced him to life i mprisonment without parole. Mr. Garza filed a direct appeal to the Oklahoma Cri minal Court of Appeals, which affirmed the 1995 conviction. He did not fil e an application for postconviction relief on his 1995 conviction in state c ourt.
On April 1, 1998, Mr. Garza filed his federal habea s petition alleging six-3-

claims for relief concerning his 1995 conviction, i ncluding unexhausted claims asserting: (1) ineffective assistance of counsel at trial and on appeal for failure to raise the issue on the invalidity of his prior conv ictions; (2) improper government threats to use his invalid 1972 convictions to impe ach his testimony, thereby preventing Mr. Garza from testifying in his own def ense; and (3) ineffective assistance of counsel for failure to object to the government’s improper withholding of exculpatory or mitigative evidence. The government moved to dismiss the petition because it contained exhausted and unexhausted claims.
Mr. Garza opposed the government motion to dismiss, arguing: (1) he “constructively” exhausted the first two of these c laims because he unsuccessfully filed several applications for state post-convictio n relief to invalidate his 1972 convictions, and thus, any state post-conviction ap peal on his 1995 conviction, based on those prior convictions, would be futile; and (2) his petition should not be dismissed simply because he may failed to aver “ enough evidentiary detail on either the issue of exhaustion, or on the nonavaila bility of meaningful and effective State remedies” (emphasis in original).
After considering Mr. Garza’s response, the distric t court dismissed Mr. Garza’s petition in its entirety finding he did notraise the three identified2Mr. Garza’s forty-nine-page appeal brief exceeds the thirty-page requirement

under Federal Rule of Appellate Procedure 32(7)(A). Although we address Mr. Garza’s appeal, we admonish his counsel for failure to adhere to this court’s rules.
-4- unexhausted claims in any state proceedings. On ap peal, Mr. Garza sets forth an exhaustive discussion concerning the issue of exhau stion, the merits of his petition, and the invalidity of his underlying conv ictions. 2 Gleaning out the crux of Mr. Garza’s appeal, it centers on his contention the district court improperly failed to address his “excusal-from-exhaustion grou nds,” which are predicated on his claim that any attempt to seek state post-convi ction relief, on the claims connected with the invalidity of his 1972 convictio ns, would be futile in light of his unsuccessful state litigation attacking those c onvictions. He also suggests the federal judge should have recused himself from revi ewing his petition because he presided over his federal habeas petition attacking his 1972 convictions, and as a state judge, presided over one of his state post-co nviction applications attacking those convictions.
We review the legal basis for the district court’s dismissal of Mr. Garza’s § 2254 petition de novo
. Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999), petition for cert. filed

(U.S. Nov. 5, 1999) (No. 99-6954). Mr. Garza’s cl aims are exhausted if a state appellate court had the opport unity to rule on the claims, or if-5-

he has no available state avenue of redress. Miranda v. Cooper , 967 F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924 (1992).
We are mindful Mr. Garza has unsuccessfully filed adirect state appeal and two state post-conviction applications challenging the validity of his prior 1972 convictions, and has an appeal pending before this court concerning the federal district court’s dismissal of his federal habeas pe tition contesting the validity of his 1972 convictions. However, Mr. Garza clearly h as not filed any direct appeal or state post-conviction petition concerning the th ree claims the district court determined he did not exhaust.
We acknowledge that under Oklahoma law, if a prison er bypasses an issue on direct appeal, he may not assert that issue in application for state postconviction relief. Jones v. State , 704 P.2d 1138, 1140 (Okla. Crim. App. 1985). However, Oklahoma courts have long recognized certa in exceptions to this procedural bar and allowed defendants to raise issu es not asserted on direct appeal if “sufficient reason” prevented assertion o f the error or if defendant passed direct appeal because of a procedural error of counsel. Okla. Stat. tit. 22, § 1086 (1986); Jones , 704 P.2d at 1140; see also Pickens v. State , 910 P.2d 1063, 1069 (Okla. Crim. App. 1996) (stating that for inef fective assistance of counsel3 As to the remaining two claims, they are based on the alleged invalidity of Mr.

Garza’s 1972 convictions, and we agree state remedies appear futile given Mr. Garza’sapparent lack of success in litigating the validity of those conviction in several state postconviction proceedings. However, we decline to address the merits of Mr. Garza’s remaining two “unexhausted” claims given this appeal still involves a “mixed petition,” and pending our disposition of Mr. Garza’s other appeal concerning his federal habeas petition attacking the validity of those same convictions. In practicality, Mr. Garza is attempting to obtain “two bites of the apple” by having us address issues concerning the validity of those convictions in this appeal without final disposition of his other appeal.
-6- claims raised for the first time in post-conviction proceedings, the court will “review each case on its individual merits, examini ng each specific proposition in connection with the specific facts of each case as the need arises”); Paxton v. State , 910 P.2d 1059, 1061-62 (Okla. Crim. App. 1996) (n oting exceptions to the rule that ineffective assistance claims not raised on direct appeal may be waived).
In this case, a possible available state avenue of redress exists with respect to Mr. Garza’s claim of ineffective assistance of c ounsel for failure to object to the government’s withholding of exculpatory or miti gative evidence, which does not in anyway implicate or concern his 1972 convict ions. Thus, he has not exhausted this claim and his petition is subject to dismissal as a “mixed” petition, regardless of our disposition of the other two clai ms. 3
Alternatively, Mr. Garza claims that if any of his claims were unexhausted,4Mr. Garza’s attorney requested permission only to “replead whatever areas of

technical deficiency” the district court might perceive in the petition, but not to amend the petition to exclude the unexhausted claims.
-7- the district court should have given him the opport unity to amend his petition to eliminate the “mixed petition” problem or held the petition “in abeyance pending further efforts at exhaustion in the State Courts.” However, a district court must dismiss “mixed petitions” containing both exhausted and unexhausted claims, Rose v. Lundy , 455 U.S. 509, 510 (1982), rather than dismissing only the unexhausted claims. See Harris v. Champion , 48 F.3d 1127, 1131 (10th Cir. 1995). A court cannot adjudicate the exhausted cla ims in a mixed petition unless the petitioner amends the petition to delete the un exhausted claim or submits a new petition raising only the exhausted claims afte r the court dismisses the first petition. See Harris , 48 F.3d at 1131.
In this case, Mr. Garza did not amend his petition to eliminate the unexhausted claim pending before the district court , 4 and the district court could not on its own initiative dismiss it. Instead, the district court properly dismissed Mr. Garza’s petition in its entirety. Although the district court did not explicitly dismiss the petition with or without prejudice, its reliance on Rose v. Lundy indicates dismissal “without prejudice.” In that c ase, the Supreme Court held that-8-

where a mixed petition is filed, the district courtmust dismiss the petition, thereby giving the petitioner the choice of either refiling a petition containing only the exhausted claims or risk delaying his habe as petition pending the exhaustion of all of his claims. Cf. Rose v. Lundy , 455 U.S. at 521. We note that a habeas petition filed after a prior petition is d ismissed without prejudice for failure to exhaust state remedies does not count as a second or successive petition for purposes of the gate keeping provisions of the Anti-Terrorism and Effective Death Penalty Act. See McWilliams v. Colorado , 121 F.3d 573, 575 (10th Cir. 1997).
Finally, Mr. Garza contends the district judge shou ld have recused himself because he presided over his federal habeas petitio n and one of his state postconviction applications attacking his 1972 convicti ons. Because Mr. Garza’s counsel filed neither an affidavit nor a motion forrecusal for consideration by the district court, we decide the issue under a plain e rror standard. Cf. United States v. Kimball , 73 F.3d 269, 273 (10th Cir. 1995). We find Mr. G arza’s mere assertion the district judge should be disqualified because he adversely disposed of his other cases insufficient to form a basis fordisqualification.
Under these circumstances, we conclude Mr. Garza fa ils to make a-9-

“substantial showing of the denial of a constitutio nal right” as required under 28 U.S.C. § 2253(c)(2). Accordingly, we deny Mr. Garz a a certificate of appealability and DISMISS his appeal.
Entered by the Court:
WADE BRORBY United States Circuit Judge