* This order and judgment is not binding precedent, e xcept under the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

### SEP 22 1998 

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

JAMES E. CAGLE,

Petitioner-Appellant,

v. RON CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 97-7145 (D.C. No. 96-CV-12-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner James Cagle appeals from the district co urt’s dismissal of his petition for writ of habeas corpus brought pursuantto 28 U.S.C. § 2254. Because Mr. Cagle’s petition was a successive petition invo lving the same conviction that was the subject of another, already-pending petitio n in the district court, the district court correctly dismissed the second petit ion. The present situation is complicated by the fact th at Mr. Cagle initially filed two § 2254 petitions in the district court. The petition in this case, district court No. 96-012-S filed in the Northern District o f Oklahoma on October 31, 1995, listed ten grounds for relief. The case was transferred to the Eastern District of Oklahoma where Mr. Cagle’s other § 2254 petition, district court No. 96-005-S, had also been transferred and was pending . The petition in case No. 96-005-S arose from the same conviction and listed five different grounds for relief. On August 23, 1996, the district court granted the state’s motion to dismiss No. 96-012-S because petitioner was attacking the s ame conviction in case No. 96-005-S then pending before the court. On appeal of the dismissal of No. 96-012-S, this court remanded for more explanation from the district court justifying the dismissal. See Cagle v. Champion , No. 96-7109, 1997 WL 346038, at ** 1 (10th Cir. June 24, 1997). The order appea led from in this case is the-3-

district court’s supplemental order clarifying its original August 23, 1996 order of dismissal. After the district court initially dismissed case N o. 96-012-S, it turned to case No. 96-005-S. In the latter case, the state h ad moved to dismiss for failure to exhaust state remedies regarding one of the claims. The court construed petitioner’s response as a motion to amend the peti tion to include only the exhausted claims. The court further construed peti tioner’s motion to consolidate the two cases (one of them now dismissed) as a moti on to amend the petition in No. 96-005-S to include the claims presented in thedismissed case No. 96-012-S. The court then granted petitioner’s two motions to amend the petition to include only exhausted claims and to add the claims from No . 96-012-S. The court directed petitioner to file an amended petition in No. 96-005-S. Some four months later, when petitioner failed to f ile an amended complaint, the district court dismissed case No. 96 -005-S as a mixed petition containing both exhausted and unexhausted claims. This court, in an unpublished order and judgment, see Cagle v. Champion , No. 97-7052, 1998 WL 39228, at **2 (10th Cir. Jan. 30, 1998), denied the applicati on for a certificate of probable cause and dismissed the appeal. In so far as petitioner appeals the initial dismiss al of case No. 96-012-S, his position is without merit. Rule 2(c) of the Rules Governing Section 2254 Cases-4-

in the United States District Courts requires that all of petitioner’s grounds for relief must be set forth in one petition. See also Rule 9(b) (authorizing dismissal of a second petition where the assertion of new or different grounds for relief constitutes abuse of the writ). Because petitioneralready had a § 2254 petition pending before the district court involving the sam e conviction, it was appropriate for the district court to dismiss the second petiti on. Petitioner was granted the opportunity to amend his complaint in No. 96-005-S to add the claims from the dismissed petit ion but failed to do so. He cannot now complain that he did not have the opportunity to present his case before the district court. Petitioner’s application for a certificate of appea lability and for leave to proceed on appeal without prepayment of costs or fe es are DENIED. This appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge