Mendenhall v. Parker ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
October 17, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TUCKER MENDENHALL,
Petitioner-Appellant,
v. No.13-7032
(E.D. of Okla.)
DAVID PARKER, Warden, (D.C. No. 6:12-CV-00050-RAW-KEW)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges
Tucker Roger Mendenhall, proceeding pro se, seeks a certificate of
appealability (COA) to appeal from the district court’s denial of his habeas corpus
petition brought under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1) (a petitioner
may not appeal the denial of habeas relief unless a COA is issued). Because
Mendenhall has failed to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the
appeal.
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mendenhall was convicted in Oklahoma state court on one count of
indecent exposure in violation of 21 Okla. Stat. § 1021(A)(1) and sentenced to
twenty-five years in prison. He appealed his conviction to the Oklahoma Court of
Criminal Appeals, which affirmed the judgment and sentence of the trial court.
He filed this habeas petition in the Eastern District of Oklahoma, alleging
insufficient evidence for conviction and ineffective assistance of counsel. The
district court found that Mendenhall had exhausted his state court remedies as to
the sufficiency of the evidence claim, but that he had not exhausted his remedies
as to the ineffective assistance of counsel claim. Although Mendenhall had raised
an ineffective assistance of counsel claim in his direct appeal, he alleged different
grounds for the claim in his habeas petition.
The district court declined to grant Mendenhall a stay and abeyance of his
petition because he did not show good cause for his failure to exhaust state court
remedies for his ineffective assistance of counsel claim. It held that because his
habeas petition contained both exhausted and unexhausted claims, Mendenhall
had three options for proceeding: (1) dismiss the entire action without prejudice
with the understanding that a second habeas petition could be barred by the
statute of limitations; (2) dismiss the unexhausted claim and continue with the
exhausted claim; or (3) continue with both claims with the knowledge that the
court will dismiss for failure to exhaust state court remedies. The district court
granted Mendenhall twenty-one days to advise the court how he intended to
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proceed. Mendenhall failed to respond and the district court dismissed the action
without prejudice. The district court then denied Mendenhall a COA. This
appeal followed.
To obtain a COA, Mendenhall must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this
showing by demonstrating that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). Because Mendenhall proceeds pro se, we
construe his pleadings liberally. See Ledbetter v. City of Topeka, 318 F.3d 1183,
1187 (10th Cir. 2003).
A district court may not grant a habeas petition if the prisoner has not
exhausted the available state court remedies. See 28 U.S.C. § 2254(b)(1);
Coleman v. Thompson, 501 U.S. 722, 731 (1991). The court may not grant a
habeas petition that contains both exhausted and unexhausted claims. See Rose v.
Lundy, 455 U.S. 509, 522 (1982). District courts may grant a stay and abeyance
of the petition if the petitioner can show “good cause” for his failure to exhaust
his state court remedies. See Rhines v. Weber, 544 U.S. 269, 277 (2005). The
petitioner bears the burden of showing he has exhausted his state court remedies.
See Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981).
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Reasonable jurists could not debate whether Mendenhall’s petition should
have been resolved differently. The district court correctly concluded that the
petition contained both exhausted and unexhausted claims. He exhausted
available state court remedies as to his sufficiency of the evidence claim on direct
appeal. But Mendenhall did not exhaust his state court remedies as to the
ineffective assistance of counsel claim. He did not seek post-conviction relief in
state court for his counsel’s failure to explain the nature of his previous
convictions to the jury. And Mendenhall did not show that he had good cause for
failing to exhaust his state court remedies on this claim. Though he had the
opportunity to seek dismissal of his unexhausted claim and pursue the sufficiency
of the evidence claim in this § 2254 proceeding, Mendenhall failed to respond as
directed by the district court. Lundy therefore required the district court to
dismiss his entire habeas petition.
In his brief, Mendenhall additionally raises several issues that were not
presented to the district court in his petition for habeas relief. Because they are
raised for the first time on appeal, we decline to address them. See United States
v. Rantz, 862 F.2d 808, 811 (10th Cir. 1988).
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Accordingly, we DENY Mendenhall’s request for a COA and DISMISS the
appeal.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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