*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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 

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES E. CAGLE, Petitioner-Appellant,

v. RON CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 97-7052 (D.C. No. 96-CV-5-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , 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); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. James E. Cagle appeals the district court’s dismiss al of his petition for writ of habeas corpus under 28 U.S.C. § 2254. He conten ds the court erred in1 Since Cagle filed his § 2254 petition on December 5, 1995, the Antiterrorism

and Effective Death Penalty Act of 1996 does not apply. SeeLindh v. Murphy , 117 S. Ct. 2059 (1997); United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Therefore, we construe Cagle’s appeal as a request for a certificate of probable cause. SeeHernandez v. Starbuck , 69 F.3d 1089. 1090 n.1 (10th Cir. 1995). A certificate of probable cause will be granted only if petitioner makes “a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings.” Gallagher v. Hannigan , 24 F.3d 68 (10th Cir. 1994). -2- dismissing his claims for failure to exhaust state remedies. We deny a certificate of probable cause and dismiss the appeal. 1 In his petition before the district court, Cagle as serted (1) the trial court erred in failing to sever his trial from that of hi s codefendant; (2) his sentence was excessive; (3) he was denied the opportunity to present a defense; (4) there was insufficient evidence to support his conviction ; and (5) the Court of Criminal Appeals erred in its rulings on his direct appeal i ssues. He conceded that Issue 5 had not been presented to the Oklahoma state courts . Respondents moved to dismiss for failure to exhaust state remedies. Cag le responded with a motion to dismiss respondents’ motion to dismiss, which the d istrict court construed as a motion to amend his petition to include only claims that had been exhausted. Cagle also filed a motion to consolidate with anoth er habeas case, which the court construed as a motion to amend to include grounds f or relief raised in the other case (which had been dismissed). The court granted the motions and gave Cagle twenty days to file an amended petition. Rather th an amend his petition, Cagle2Since the petition was filed before the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996, the amendment to 28 U.S.C. § 2254(b) which permits federal courts to deny on the merits claims that have not been exhausted in state court is inapplicable. -3- objected to the order, arguing the court lacked jur isdiction to order an amended petition to include grounds raised in the dismissed case which had been appealed to this court. Cagle still had not filed an amende d petition nearly four months later and the court dismissed the case for failure to exhaust state court remedies. Under the law applicable here, a federal court cann ot consider the merits of a state prisoner’s habeas petition until the prison er has exhausted available state remedies. 2 In Rose v. Lundy , 455 U.S. 509 (1982), the Court held district courts must dismiss “mixed petitions” containing both exha usted and unexhausted claims, leaving petitioners with the choice of retu rning to state court to exhaust claims or amending their habeas petitions to presen t only exhausted claims to the federal courts. The cases relied on by Cagle actually support the d istrict court’s decision. In Williams v. Groose , 77 F.3d 259, 262 (8th Cir. 1996), the court held it was not error to require Williams to choose between deletin g unexhausted claims or having his petition dismissed without prejudice to permit exhaustion. In Ross v. Petsock , 868 F.2d 639, 642 (3d Cir. 1989), the court held Ross should be given the opportunity to amend his petition to delete une xhausted claims and proceed-4-

solely on his exhausted claims. Here, the districtcourt gave Cagle an opportunity to amend his petition to present only exhausted cla ims but he failed to do so. Consequently, dismissal was appropriate. Cagle asserts in the alternative that the district court erred by dismissing his petition with prejudice so he could not pursue his unexhausted claims in state court. Dismissal of a habeas petition for failure to exhaust state remedies is ordinarily without prejudice to enable petitioner t o pursue those remedies. Demarest v. Price , 130 F.3d 922, 939 (10th Cir. 1997). The districtcourt did not specify that the dismissal was with prejudice and w e construe it as a dismissal without prejudice. Cagle’s application for a certificate of probable c ause is DENIED and this appeal is DISMISSED. The mandate shall issue forth with. Entered for the Court Mary Beck Briscoe Circuit Judge