Judd v. Dantis ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 2 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
KEITH JUDD,
Petitioner - Appellant, No. 99-2251
v. (D.C. No. CIV-98-662-MV/DJS)
JOHN DANTIS, Director, Bernalillo (D. New Mex.)
County Detention Center; GARY
JOHNSON, Governor, State of New
Mexico; and ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner’s brief and the appellate record, this 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).
The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner Keith Judd appeals the district court’s order denying his petition
for writ of habeas corpus filed under 28 U.S.C. § 2254. Pursuant to North
Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting defendant to enter guilty
plea while maintaining innocence because expressed admission of guilt is not
constitutional prerequisite to imposition of criminal penalty), Petitioner pleaded
guilty to and was convicted in New Mexico state court of two counts of the use of
a telephone to terrify, intimidate, threaten, harass, 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 not been raised in the state
courts. The magistrate judge properly recommended that the “petition be
dismissed without prejudice . . . to allow Petitioner 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, inexplicably
dismissed the petition with prejudice. This appeal followed and Petitioner
requests a certificate of appealability from this court to determine whether the
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dismissal with prejudice was erroneous. 1 He also argues that his state remedies
have been exhausted.
We grant the certificate of appealability and affirm 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 court to dismiss without prejudice
to allow Petitioner the opportunity to present his unexhausted claims to the state
courts or to refile a federal habeas petition containing 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
1
Although the district court did not act on the issue of a certificate of
appealability, a certificate of appealability is deemed denied by the district court
pursuant to the Tenth Circuit Emergency General Order of October 1, 1996. See
United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir.), overruled on other
grounds by United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997),
cert. denied, 523 U.S. 1053 (1998).
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