* After examining appellant’s brief and the appellate 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) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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.

1 This court has previously granted Price a certificate of appealability, see 28 U.S.C. § 2253, and leave to proceed on appeal i nformapauperis , see 28 U.S.C. § 1915(a)(1). 

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

### January 6, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND ARTHUR PRICE, Petitioner-Appellant, v. SUPT. REID; ATTORNEY GENERAL OF THE STATE of COLORADO, Respondents-Appellees. No. 04-1190 (D.C. No. 03-Z-2321) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , McKAY and HENRY , Circuit Judges.
Petitioner-Appellant Raymond Arthur Price, a state prisoner proceeding pro se, appeals 1 the district court’s decision dismissing his feder al habeas petition2 Rule 11 of the Rules Governing Section 2254 Cases p rovides that

“[t]he Federal Rules of Civil Procedure, to the ext ent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Sloan v. Pugh , 351 F.3d 1319, 1322 (10th Cir. 2003); Fed. R. Civ. P. 81(a)(2). Although Rul e 2 of the Rules Governing Section 2254 Cases does address to some extent whata habeas petitioner should include in his § 2254 petition, that Rule is not in consistent with Fed. R. Civ. P. 8(a)’s requirement of “a short and plain statement” of the petitioner’s claim. - 2 - filed under 28 U.S.C. § 2254. The district court d ismissed Price’s habeas petition without prejudice after concluding Price had failed to file a well-pled petition as required by Fed. R. Civ. P. 8(a). 2 Having jurisdiction to review this appeal under 28 U.S.C. § 1291, we REVERSE the district court’s d ecision and REMAND this cause for further proceedings.
I. FACTS Price filed his habeas petition November 20, 2003, challenging his Colorado convictions on three counts of theft and three counts of possessing forged instruments. The magistrate judge, however, directed Price to amend that petition within thirty days, after concluding that “Mr. Price’s disorganized and vague allegations fail to provide a short and plain statement of the state procedural background of his case and fail to provi de a short and plain statement of his claims showing he is entitled to relief.” The magistrate judge also directed Price to “demonstrate that he has exhausted state r emedies as to each claim.” To effect his order, the magistrate judge ordered “that the clerk of the Court mail to3 A habeas petitioner “must substantially follow eith er the form

appended to [the Rules Governing Section 2254 Cases ] or a form prescribed by a local district-court rule.” Rule 2(d), Rules Gover ning Section 2254 Cases. - 3 - Mr. Price, together with a copy of this order, two copies of the following form for use in filing the amended application: Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.” 3 Price responded to the magistrate judge’s directionby filing two amended habeas petitions. Those two pleadings were on the forms required for § 2254 petitions, with Price having handwritten in his all egations. The two amended petitions were essentially identical. Nevertheless , the district court dismissed Price’s petitions without prejudice, holding that “ Price submitted two similar but not identical amended applications, each attacking the same conviction. By submitting two different amended applications, Mr. Price has failed to comply with the [magistrate judge’s] order within the time allowed.” Price appeals that decision.
II. DISCUSSION A. Appellate jurisdiction. As an initial matter, although the Government did n ot raise the issue, we must consider whether the district court’s decisiondismissing Price’s habeas petition without prejudice is a final, appealable o rder. See Amazon, Inc. v. Dirt- 4 -

Camp, Inc. , 273 F.3d 1271, 1272 (10th Cir. 2001) (noting this court has an independent duty to examine our own appellate juris diction). [I]n determining whether an order of dismissal [without prejudice] is appealable, we must examine whether the district co urt dismissed the complaint or the action. A dismissal of the complai nt is ordinarily a non-final nonappealable order (since amendment woul d generally be available), while a dismissal of the entire action is ordinarily final. Mobley v. McCormick , 40 F.3d 337, 339 (10th Cir. 1994) (citations omitted). In making this determination, this court focuses on th e district court’s intent in issuing its dismissal order. See id. Here, we deem the district court to have intended to dismiss the entire action. See Ciralsky v. C.I.A. , 355 F.3d 661, 665-68 (D.C. Cir. 2004) (holding dismissal for fail ure to comply with Rule 8 was dismissal of entire action, which was appealable fi nal order); see also Leonard v. Standell , 145 F. App’x 632, 632-33 (10th Cir. 2005) (unpubl ished) (reviewing district court’s dismissal of pro se plaintiff’s co mplaint without prejudice under Fed. R. Civ. P. 8); Griffin v. Kelly , 124 F. App’x 614, 615 (10th Cir. 2005) (unpublished) (same). Furthermore, “where dismissal finally disposes of the case so that it is not subject to further proceedings in federal court, th e dismissal is final and appealable.” Amazon, Inc. , 273 F.3d at 1275. The Anti-Terrorism and Effecti ve Death Penalty Act of 1996 (AEDPA) gives a state pri soner only one year to file his § 2254 petition. See 28 U.S.C. § 2244(d). Without specifically conclud ing- 5 -

that Price would now be time-barred from asserting a new habeas petition, we note that Price filed the § 2254 petition at issue here over two years ago. Under these circumstances, therefore, we will treat the d istrict court’s decision to dismiss his petition without prejudice as a final, appealable order.
B. District court’s dismissal. The district court dismissed Price’s habeas petitio n without prejudice under Fed. R. Civ. P. 8. We review the district court’s dismissal without prejudice for an abuse of discretion. See Ciralsky , 355 F.3d at 668-71; see also Leonard , 145 F. App’x at 632-33; Griffin , 124 F. App’x at 615. “[U]nder Fed. R. Civ. P. 8(a)(2), the [petitioner] must offer a short and plain statement of the claim that will give the [re spondent] fair notice of what the [petitioner’s] claim is and the grounds upon which it rests.” United Steelworkers of Am. v. Or. Steel Mills, Inc. , 322 F.3d 1222, 1228 (10th Cir. 2003) (quotations omitted). “The Supreme Court has emphasized that t he requirements at the pleading stage are de minimus .” Id. (citing Swierkiewicz v. Sorema , 534 U.S. 506, 514 (2002), and Steel Co. v. Citizens for a Be tter Env’t. , 523 U.S. 83 (1998)). “The Federal Rules reject the approach th at pleading is a game of skill in which one misstep . . . may be decisive of the o utcome and accept the principle that the purpose of pleading is to facilitate a pro per decision on the merits.”- 6 -

Perington Wholesale, Inc. v. Burger King Corp. , 631 F.2d 1369, 1373 (10th Cir. 1979) (quoting Conley v. Gibson , 355 U.S. 41, 47-48 (1957)). Rule 8 also “calls for pleadings to be ‘construed a s to do substantial justice.’” Schwartz v. Celestial Seasonings, Inc. , 124 F.3d 1246, 1252 (10th Cir. 1997) (quoting Fed. R. Civ. P. 8(f)). Moreover, bec ause Price is proceeding pro se in this case, we must liberally construe his pleadi ngs. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). In light of these paramet ers, we conclude Price’s amended § 2254 petition sets forth his claims with sufficient clarity to satisfy Rule 8(a). The district court, therefore, abused i ts discretion in dismissing Price’s petition. The district court specifically dismissed Price’s amended § 2254 petition only because Price submitted two copies of that pet ition. These were form applications on which Price had handwritten his res ponses to the form’s proffered questions. The completed form petitions are essent ially identical, with only one or two words different between the two, which one m ight expect in light of the fact that Price was writing them out by hand. Furt her, it is likely that Price filed two copies of his amended § 2254 petition in respon se to the magistrate judge’s direction that the Clerk send Price two copies of t he necessary § 2254 form. The fact that Price filed two essentially identical cop ies of his amended habeas- 7 -

petition in no way justifies the district court’s d ecision to dismiss his § 2254 proceedings under Fed. R. Civ. P. 8(a). Even if we construed the district court’s decision to dismiss Price’s amended petition also because it failed to meet Rul e 8(a)’s pleading requirements, we would determine that the district court abused i ts discretion in doing so. In directing Price to file an amended petition, the ma gistrate judge appeared to have two primary concerns: 1) Price’s confusing allegati ons describing the prior state-court proceedings in which Price had challeng ed his Colorado convictions; and 2) the adequacy with which he pled his four § 2 254 claims.

1. Procedural allegations. Price’s original habeas petition confused the magis trate judge because Price alleged that the Colorado convictions he challenges occurred on three separate dates in 2003, while most of his state-court appeal s of those convictions occurred in the 1990s. Price, however, corrected that confu sion in his amended petition by indicating that the trial court actually entered th e judgment of conviction he is now challenging on October 21, 1991. In light of t his revision, then, Price appears to have sufficiently alleged the procedural history of his state convictions in his amended petition to satisfy Rule 8(a)’s requ irements. The magistrate judge was also concerned because Pri ce had alleged that the state trial court decision denying him state post-c onviction relief “had been- 8 -

affirmed April 21 and May 6, 2003,” yet Price also alleged, in his first § 2254 claim, that he had been denied an appeal from that denial. Price’s original § 2254 petition, however, clearly indicated that the state district court, not the Colorado appellate court, denied him post-conviction relief in 2003. It was from that decision that Price tried, but was apparently unabl e, to appeal.

2. § 2254 claims

. The magistrate judge was also concerned both about the clarity with which Price pled his § 2254 claims and about whether Pric e had exhausted his state-court remedies as to each claim, as § 2254(b) requires. In his habeas petition, Price asserted the following four § 2254 claims: 1) Price asserted that the state district court err ed in refusing to conduct an evidentiary hearing before denying Price post-convi ction relief. In addition, Price alleged that the Colorado appellate courts denied h im due process and equal protection when they refused to consider Price’s ap peal from the denial of that post-conviction relief. The magistrate judge was s pecifically concerned that this claim failed to raise a constitutional claim. Pric e, however, clearly alleged that he was denied due process and equal protection because the Colorado appellate4 The magistrate judge did not dismiss Price’s claims based on their

merit. We, therefore, do not here address the poss ible merits of each claim. Rather, we instead conclude only that Price’s alleg ations were sufficient to satisfy Rule 8(a). - 9 - courts did not consider his appeal from the denial of post-conviction relief. 4 Further, no additional exhaustion of state-court re medies would appear necessary. The only specific concern that the magistrate judge expressed regarding claims two, three and four was that “Mr. Price’s di sorganized and vague allegations . . . fail to provide a short and plain statement of his claims showing he is entitled to relief.” However, as explained b elow, Price’s claims are sufficiently short and clearly pled to satisfy Rule 8(a), both in his original and his amended petitions. 2) Price alleged that the trial court erred in dism issing a jury venire member for cause. More specifically, Price alleged that t he district court erred in striking venireperson Hersch for cause when there was no evi dence to suggest that this juror had a clear bias against the prosecution. Price has clearly pled this claim. In addition, he also alleged that he had exhausted his state-court remedies by asserting this same claim on direct appeal. 3) Price plainly alleged that his appellate counsel was ineffective for failing to challenge, on direct appeal, the trial court’s r efusal to permit one of Price’s witnesses from testifying on Price’s behalf. Furth er, Price asserts that he raised a- 10 -

claim challenging his appellate counsel’s represent ation in a post-conviction motion. Because that would have been the first opp ortunity Price would have had to challenge direct-appeal counsel’s effectiveness, it appears from the pleadings that he has exhausted his state-court remedies as t o this claim as well. 4) Price also clearly alleged that the evidence at trial was insufficient to support his convictions because he was the co-ownerof the checks that he was convicted of stealing and forging. According to Price’s pleadings, he did raise this issue before the state court, but not until a post-conviction motion. As he indicated in his first claim for relief, Price appa rently had trouble appealing the denial of post-conviction relief on this claim. Al though this suggests he may have failed to exhaust his state-court remedies as to th is issue, exhaustion will be excused if “there is an absence of available State corrective process” or “circumstances exist that render such process ineff ective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i) & (ii ). At this stage of the proceedings, therefore, we cannot say that dismissa l of this claim based on Price’s failure to exhaust his state-court remedies would b e appropriate. For these reasons, therefore, we conclude that the district court abused its discretion in dismissing without prejudice Price’s amended § 2254 petition. We REVERSE that dismissal and REMAND to the district c ourt for proceedings consistent with this decision.- 11 -

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge