                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 26 1998
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 STEPHEN CRAIG BURNETT,

          Petitioner-Appellant,
                                                       No. 97-5156
 v.
                                                 (D.C. No. 96-CV-334-H)
                                              (Northern District of Oklahoma)
 STEVE HARGETT,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      In this habeas petition under 28 U.S.C. § 2254 (1994), attacking the

petitioner’s Oklahoma conviction for malicious injury to property, we conclude

that the petitioner’s claim involving the effectiveness of his court-appointed

counsel is not barred by the exhaustion doctrine because it would be futile to

require him to submit this claim in the Oklahoma state courts. Therefore, we



      *
       After examining appellant’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(f) and 10th Cir. R. 34.1.9.
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judgment is not binding precedent, except under the doctrines of law of the case,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.
must remand this case to the district court for further consideration.



                                             I.

      Stephen Craig Burnett filed a federal petition for a writ of habeas corpus

under 28 U.S.C. § 2254 (1994) on February 13, 1996. 1 Burnett sought to

challenge the constitutionality of his incarceration following his conviction in

Tulsa County, Oklahoma, for maliciously spray-painting the walls and mirrors of

the home where Burnett’s then-wife, Elizabeth Ann Burnett, lived. (See R., Tab

A, “Petition for a Writ of Habeas Corpus.”) Burnett was charged with this crime

in a criminal information alleging that this vandalism was committed against

property that was “not the property of said defendant.” 2 (See R., Tab E,

      1
       The office of the Attorney General of the state of Oklahoma, counsel for
the appellee, initially declined to file a brief in this appeal on the grounds that no
such brief was required under the new provisions of 28 U.S.C.A. § 2254 (West
1997 Supp.) until Burnett was issued a “certificate of appealability.” However, in
an order filed December 13, 1997, we noted that Burnett had filed his federal
habeas petition before the April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). As a result, under our decision in United
States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (footnote circulated
en banc), Burnett’s habeas petition is not controlled by the “new” provisions of
the habeas statute, and he was not required to apply for a certificate of
appealability. In the same order, we issued a certificate of probable cause under
the standards of the “old” section 2254.
      2
          The statute under which Burnett was prosecuted provides in relevant part,
               A. Every person who maliciously injures, defaces or
               destroys any real or personal property not his own . . . is
               guilty of:
                                                                           (continued...)

                                           -2-
“Information.”) This criminal information made no reference to the fact that

under the general warranty deed for this property, Burnett and his wife owned

their home as joint tenants with the right of survivorship. (See R., Tab D,

“General Warranty Deed.”) Nevertheless, Burnett pleaded guilty to the charge in

the criminal information after affirmatively telling the court that there was no

legal cause for why he should not be found guilty. (See R., Tab G, “Judgment &

Sentence on Plea of Guilty - Felony.”) Tulsa County District Judge Clifford E.

Hopper then sentenced Burnett to five years in prison. 3 (See id.)

      2
       (...continued)
                    ...
                    2. a felony, if the damage, defacement or
                    destruction causes a loss which is valued at . . .
                    $2,500 or more.
Okla. Stat. Ann. tit. 21, § 1760 (West 1998 Supp.) (emphasis added). This statute
has been construed by Oklahoma’s courts as inapplicable to a case where a person
has defaced or destroyed property belonging to himself. See McGlassen v.
Oklahoma, 130 P. 1174 (Okla. Crim. App. 1913). We have been unable to locate
any case construing this statute in the context of property that is owned in a joint
tenancy between a husband and wife, where one of the spouses has caused the
damage.
      3
        The sentence in this case, CF-93-2277, was ordered to run consecutively
with Burnett’s life sentence in a separate case, CF-93-3131. (See R., Tabs G &
I.) In that separate case, Burnett had pleaded guilty to murdering his wife some
three months after the malicious injury to property charged in CF-93-2277. (See
R., Tab A, at 5-A.)
       Burnett’s habeas petition in this case focuses solely on his conviction for
malicious injury to property in Case CF-93-2277. (See id.) Burnett has
specifically disclaimed any claim for relief in this habeas petition for any
constitutional infirmities in his murder conviction in Case CF-93-3131, noting
that he reserves the right to file a federal habeas challenge to that conviction at a
                                                                        (continued...)

                                        -3-
      Following his conviction, Burnett did not file a direct appeal, nor did he

file a motion seeking to withdraw his guilty plea. (See R., Tab B, “Application

for Post-Conviction Relief,” at 2.) Instead, on July 27, 1995, almost fifteen

months after his conviction, Burnett filed an application for post-conviction relief

under Okla. Stat. Ann. tit. 22, § 1080 (West 1986). (See id. at 1.) In this

application, Burnett alleged that he was factually innocent of the charge for which

he was convicted because he was a joint owner of the property that was damaged.

(See id. at 4.) In a separate allegation under the heading “Entry of Plea,” Burnett

also claimed that he was not informed by his appointed counsel from the Tulsa

County Public Defender’s office that his offense of conviction required the state

to prove that the property at issue was not owned by him. (See id.) Burnett said,

“Had counsel properly informed petitioner of the principles of 21 O.S. 1760

(A)(2) or had counsel informed the sentencing court that petitioner was the

owner/co-owner of the property, the entry of the plea would have been prohibited

by the sentencing Judge.” (Id.)

      Burnett’s application for post-conviction relief was handled in the first


      3
        (...continued)
later time. (See id.)
        Although the record does not specifically indicate so, we presume that
Burnett currently is serving his five-year sentence for the malicious-injury-to-
property conviction. At no point in these proceedings has the appellee suggested
that Burnett is not in custody on the particular conviction he is challenging here.
(See R., Tab I, at 1.)

                                        -4-
instance by the state district judge who sentenced him, Judge Hopper. (See R.,

Tab I, “Order Denying Application for Post-Conviction Relief.”) In a two-page

order, the court did not address Burnett’s claims regarding the legal scope of

Oklahoma’s malicious injury to property statute. (See id. at 1.) Instead, the court

held that Burnett had failed to show that his guilty plea was not voluntarily and

knowingly made. (See id. at 2.) The court also ruled, apparently as an alternative

ground of decision, that Burnett’s failure to file a direct appeal waived all of the

issues that he raised in his application because all of these issues could have been

raised on direct appeal. (See id. at 3.)

      Burnett appealed the Tulsa County decision to the Oklahoma Court of

Criminal Appeals, asserting that because he was a joint owner of the property that

was damaged, there could have been no crime under Okla. Stat. Ann., tit 21, §

1760, and as a result, the state court lacked jurisdiction to try the criminal

charges. (See R., Tab K, “Brief in Support of Petition in Error,” at 3.) Burnett

also asserted that the trial court had failed to determine the factual basis for his

guilty plea, and this failure was a “fundamental error.” (See id. at 4.) In the

course of making this argument, Burnett reiterated the claim he had made in his

Tulsa County application that the entry of his guilty plea had been tainted by the

improper conduct of his counsel. (See id. at 5.) Burnett contended, “Petitioner

was not informed by counsel or the sentencing court that ownership or co-


                                           -5-
ownership of the property would prohibit prosecution. . . . Petitioner pled without

being properly and accurately informed of the appropriate legal principles, and

after misleading and inaccurate information was presented to the Magistrate.”

(Id.)

        Following the state’s response to his brief, Burnett filed a motion with the

Oklahoma Court of Criminal Appeals for permission to file a supplemental brief.

(See R., Tab M, “Motion to File Supplemental Brief & Memorandum of Law in

Support.”) This motion reiterated his contention that his counsel was aware at the

time of his guilty plea that he was the joint owner of the property that had been

damaged. (See id. at 1.) Burnett also argued in this motion that certain other

cases supported his application for post-conviction relief, citing United States v.

Galloway, 56 F.3d 1239 (10th Cir. 1995) (en banc), and Schlup v. Delo, 513 U.S.

298 (1995). The Galloway decision involved this circuit’s en banc ruling that

claims of ineffective assistance of counsel in federal habeas petitions under 28

U.S.C. § 2255 (1994) nearly always should be brought in collateral proceedings,

and that there should be no procedural bar against raising a claim of ineffective

assistance of counsel based on facts that might have been known at the time of a

direct appeal. See Galloway, 56 F.3d at 1240-41. The Schlup decision involved

the Supreme Court’s ruling on the proper standard for considering a claim of

actual innocence in a procedurally barred habeas petition when the claim of actual


                                          -6-
innocence is linked to a claim of ineffective assistance of counsel. See Schlup,

513 U.S. at 323-27.

      Without addressing Burnett’s references to ineffective assistance of counsel

and actual innocence, the Oklahoma Court of Criminal Appeals relied on the

alternative grounds of decision presented by the Tulsa County court and held that

Burnett had waived all of the claims raised in his application for post-conviction

relief because he had failed to take a direct appeal. (See R., Tab L, “Order

Affirming Denial of Post-Conviction Relief,” at 1-2.) Two months after this last

decision by Oklahoma courts on Burnett’s state application, he filed his federal

petition for a writ of habeas corpus. 4 (See R., Tab A.)

      In this petition, Burnett for the first time discussed his “extremely confused

mental state of mind” at the time of his arrest and conviction. (See id. at 5-A.)

Burnett said that he had been prescribed large doses of an anti-depressant

medication, and he was taking this drug at the time he entered his plea on the

malicious injury to property charge. (See id.) Burnett then recounted the advice

he received from his court-appointed public defenders, contending that these



      4
       Burnett initially filed his federal habeas petition in the Western District of
Oklahoma, because that is the district encompassing the prison where Burnett has
been incarcerated. (See R., Doc. #1, “Report & Recommendation,” at 2.)
However, the case was transferred without objection to the Northern District of
Oklahoma, the district encompassing Tulsa County, where Burnett had been
convicted. (See id.)

                                         -7-
lawyers counseled him to lie about the ownership of his home and about whether

he was under the influence of drugs at the time of his plea. (See id. at 5-B.) In

the final page of his summary of his claims, Burnett raised his claim of “actual

innocence” based on his joint ownership of the property that was damaged. (See

id. at 5-C.) Burnett also asserted, “My counsel was ineffective in that they

encouraged me to plead guilty to something that was not even a crime and

‘coached me’ in how to present this to the judge at the plea bargain proceeding on

April 26, 1994.” (Id.) Finally, Burnett also said he “would like to incorporate all

of my legal arguments made prior to this time in this petition.” (Id.)

      The district court applied the rule of liberal construction to Burnett’s

federal habeas petition, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and

concluded that his petition raised two claims: ineffective assistance of counsel

and an involuntary plea arising from the influence of anti-depressant medication.

(See R., Doc. #9, “Order,” at 2.) The district court held that neither of these

claims had been “fairly presented” in Burnett’s prior state proceedings, and as a

result, Burnett had failed to fulfill the exhaustion requirement of 28 U.S.C.

§ 2254. (See id. at 3.) Relying on the Seventh Circuit’s standard for whether a

habeas petitioner’s claims have been “fairly presented” in state proceedings, see

Momient-El v. DeTella, 118 F.3d 535 (7th Cir.), cert. denied, 118 S. Ct. 448

(1997), the district court concluded that Burnett had failed to meet the exhaustion


                                         -8-
requirement of section 2254. The court found that Burnett had failed to meet the

Seventh Circuit’s standard because “[p]etitioner did not rely on pertinent federal

cases to argue ineffective assistance of counsel, did not rely on state cases

applying constitutional analysis to a similar factual situation, failed to assert the

claim in terms so particular as to call to mind a specific constitutional right, and

failed to allege a pattern of facts that is well within the mainstream of

constitutional litigation.” (R., Doc. #9, “Order,” at 4.)

      On appeal now, Burnett specifically disclaims any intent to raise a claim in

his federal habeas petition involving the voluntariness of his plea stemming from

the medication he had been taking. (See Aplt. Opening Br., at 7.) In his brief,

Burnett explains that his federal habeas petition was intended to be focused on the

“central problem . . . caused by the ineffective assistance of Appellant’s two

public defenders who encouraged him to lie in court and coached him as to what

to say. Appellant was only trying to further explain this to the Federal District

Court when he listed as one example of a lie he was told to tell regarding his

taking of medication (doxepin) while in Tulsa County Jail.” (Id.) Burnett also

contends that any failure to exhaust his claim of ineffective assistance of counsel

should be excused because of the futility of requiring him to pursue the issue in

Oklahoma state court. (See id. at 10.)




                                          -9-
                                           II.

      As a preliminary matter, we reiterate that Burnett’s federal habeas petition

is controlled by the standards under the “old” habeas statute prior to the passage

of the Antiterrorism and Effective Death Penalty Act (AEDPA) because his

petition was filed before the effective date of that statute. See Demarest v. Price,

130 F.3d 922, 931-32 (10th Cir. 1997). Nevertheless, even under the “old”

habeas provisions, a state prisoner bringing a federal habeas petition has the

burden of showing that he has exhausted his state court remedies. See Picard v.

Connor, 404 U.S. 270, 275 (1971). This requirement, codified in the habeas

statute at 28 U.S.C. § 2254(b), “reflects a policy of federal-state comity, . . . ‘an

accommodation of our federal system designed to give the State an initial

opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.’” Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249,

250 (1971)) (other citations omitted).

      The Supreme Court has explained that a state prisoner can fulfill the

exhaustion requirement by demonstrating that he has “provide[d] the state courts

with a ‘fair opportunity’ to apply controlling legal principles to the facts bearing

upon his constitutional claim. . . . It is not enough that all the facts necessary to

support the federal claim were before the state courts, . . . or that a somewhat

similar state-law claim was made. . . . In addition, the habeas petitioner must have


                                          - 10 -
‘fairly presented’ to the state courts the ‘substance’ of his federal habeas claim.”

Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). This “fair presentation”

requirement, however, does not go so far as to require a habeas petitioner to recite

certain magic words to invoke a particular claim: “[W]e do not imply that

respondent could have raised [his claim] only by citing ‘book and verse on the

federal constitution.’ . . . We simply hold that the substance of a federal habeas

corpus claim must first be presented to the state courts.” Picard, 404 U.S. at 278

(quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)); see also

Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989) (“[A] failure to invoke

talismanic language (cite ‘book and verse’ of the constitution) should not be the

basis for a finding of nonexhaustion.”). We have applied this rule of “fair

presentation” in any number of habeas cases in which we have held that the

crucial inquiry is whether the “substance” of the petitioner’s claim was presented

to the state courts. 5 See, e.g., Demarest, 130 F.3d at 932; Nichols, 867 F.2d at

1252; Jones v. Hess, 681 F.2d 688, 693 (10th Cir. 1982).




      5
       We need not address the district court’s reliance on the Seventh Circuit’s
standard for “fair presentation.” See Momient-El v. DeTella, 118 F.3d 535, 538-
39 (7th Cir.), cert. denied, 118 S. Ct. 448 (1997). Relying on the Tenth Circuit’s
own precedents, we reach the same conclusion as the district court, i.e., that
Burnett did not fairly present his claim of ineffective assistance of counsel to the
Oklahoma state courts.

                                         - 11 -
                                           A.

      Applying the Picard rule for “fair presentation” to Burnett’s claim of

ineffective assistance, we conclude that Burnett failed to give the Oklahoma

courts a fair opportunity to pass on the legal issues that would control the claim

he now raises with us. Burnett’s factual allegation of attorney misconduct by his

court-appointed counsel remained constant throughout Burnett’s pro se post-

conviction pleadings in the state courts. (Compare R., Tab B, at 4 with R., Tab

K, at 5. See also R. Tab A, at 5-C.) Construing these factual allegations

liberally, they normally would have suggested to a reviewing court that Burnett’s

claim included an allegation of inappropriate and ineffective conduct by his court-

appointed lawyers. However, Burnett couched his factual allegations in legal

claims relating to the trial court’s jurisdiction and the voluntariness of his plea.

(See R., Tab B, at 4; R., Tab K, at 5.) It was only when he filed his Motion to

File Supplemental Brief that Burnett came close to putting the Oklahoma Court of

Criminal Appeals on notice that his post-conviction case involved potential issues

of ineffective assistance of counsel. (See R., Tab M, at 1 (citing Schlup v. Delo,

513 U.S. 298 (1995), and United States v. Galloway, 56 F.3d 1239 (10th Cir.

1995) (en banc)).) However, the Court of Criminal Appeals denied this motion,

and we cannot construe Burnett’s stray citations in a motion that was denied as

sufficient to meet the Picard standard.


                                          - 12 -
      Burnett’s claim of ineffective assistance of counsel falls well below the

level of “fair presentation” that we found sufficient in Nichols. See Nichols, 867

F.2d at 1252-53. In Nichols, this court found that a habeas petitioner had

presented the “substance” of his due process claim of prosecutorial misconduct

when the petitioner had cited the Fifth Amendment’s due process clause in his

docketing statement before the New Mexico Court of Appeals. Id. at 1253.

Although the habeas petitioner nowhere else labeled his claim as one alleging a

violation of due process, or ever correctly labeled his claim as one arising under

the Fourteenth Amendment, the citation in the docketing statement was sufficient

to put the New Mexico courts on notice that the petitioner wished the court to

apply the legal standards for a due process claim. See id.

      In Burnett’s case, however, his stray citations to a pair of potentially

relevant federal cases came at the very end of the state-court review process, in a

motion that was denied. Although we do not require a habeas petitioner to recite

the words “ineffective assistance of counsel” as some kind of talismanic

incantation, see Nichols, 867 F.2d at 1252, we do require that a claim of

ineffective assistance of counsel not be camouflaged within a welter of other

claims.

      As a result of our conclusion that Burnett did not adequately present his

claim of ineffective assistance to the Oklahoma courts, we agree with the district


                                        - 13 -
court’s conclusion that Burnett failed to meet the exhaustion requirement of 28

U.S.C. § 2254. This conclusion, however, does not end our inquiry. Burnett has

argued that an exhaustion requirement in his case would be futile. (See Aplt. Br.

at 10.) If Burnett’s claim of futility is correct, then the district court erred in

dismissing Burnett’s allegation of ineffective assistance of counsel.

       The Tenth Circuit, along with many other courts, has recognized that the

exhaustion requirements for a state prisoner’s habeas petition may be waived

when the petitioner demonstrates that requiring him to bring his federal

constitutional claim in the state courts would be “futile.” See Wallace v. Cody,

951 F.2d 1170, 1171 (10th Cir. 1991); Goodwin v. Oklahoma, 923 F.2d 156, 157

(10th Cir. 1991) (citing cases in the First, Seventh, Eighth, and Ninth circuits).

The futility rule in Wallace and Goodwin was applied in contexts where the

Oklahoma state courts had recently issued decisions in other cases that were

directly on point with the constitutional claims raised by the habeas petitioners.

See Wallace, 951 F.2d at 1170-71; Goodwin, 923 F.2d at 157-58. In that context,

we concluded that it would be pointless to require the habeas petitioners to

exhaust their state remedies when it was clear what result would obtain: “In such

a case, resort to state judicial remedies would be futile.” Goodwin, 923 F.2d at

157.

       In addition to this rationale for waiving the exhaustion requirement -- i.e.,


                                          - 14 -
when there is a recent, adverse state court decision disposing of the precise point

raised by the petitioner -- the Supreme Court also has approved the application of

the futility exception in situations where a procedural doctrine in the state courts

would prevent a habeas petitioner from pursuing his unexhausted claim. See

Harris v. Reed, 489 U.S. 255, 263 n.9 (1989) (“Of course, a federal habeas court

need not require that a federal claim be presented to a state court if it is clear that

the state court would hold the claim procedurally barred.”); see also Grey v.

Hoke, 933 F.2d 117, 120 (2d Cir. 1990) (applying the futility rule in Harris to

waive the exhaustion requirement of section 2254 because of a state procedural

bar). As Justice O’Connor noted in her concurrence in Harris, one of the dangers

in strictly applying the exhaustion requirement in cases where exhaustion would

be futile is that a dismissal in such circumstances “would often result in a game of

judicial ping-pong between the state and federal courts, as the state prisoner

returned to state court only to have the state procedural bar invoked against him.”

Harris, 489 U.S. at 270 (O’Connor, J., concurring).

      In Burnett’s case, we have no doubt that Oklahoma’s courts would refuse to

consider his claim of ineffective assistance of counsel. A well-established line of

cases in Oklahoma has made it clear that Oklahoma courts may not consider an

allegation of ineffective assistance in a post-conviction collateral attack when the

petitioner knew the facts supporting his allegation at the time of his direct appeal.


                                          - 15 -
See Walker v. State, 933 P.2d 327, 332 (Okla. Crim. App.) (“[T]his Court may

not review [petitioner’s] claims of ineffective assistance of trial counsel if the

facts generating those claims were available to [petitioner’s] direct appeal

attorney and thus either were or could have been used in his direct appeal.”), cert.

denied, 117 S. Ct. 2524 (1997); Berget v. State, 907 P.2d 1078, 1084-85 (Okla.

Crim. App. 1995) (criticizing the Tenth Circuit’s rule under United States v.

Galloway, 56 F.3d 1239 (1995) (en banc), requiring ineffective assistance claims

to be brought on collateral review rather than direct attack, and noting that in

Oklahoma’s courts, “[a]ppellants claiming ineffective assistance of counsel are

still required to raise the ineffective assistance claim on direct appeal”). Under

Oklahoma’s procedural doctrines for post-conviction relief, the only claim of

ineffective assistance that may be heard is a claim based on facts that were not

discoverable at the time the petitioner might have brought a direct appeal. See

Hooker v. State, 934 P.2d 352, 354-55 (Okla. Crim. App. 1997) (dismissing

claims of ineffective assistance of counsel brought in a post-conviction collateral

attack because the facts supporting the claims were known at the time of the

petitioner’s direct appeal).

      Furthermore, Oklahoma’s procedural rules for claims of ineffective

assistance would clearly prevent Burnett from raising his particular claim in the

Oklahoma courts now. The factual premise of Burnett’s claim involves events that


                                         - 16 -
were known to him at the time he could have brought a direct appeal, i.e., that his

attorney encouraged him to lie and that his attorney was aware he was a joint

owner of his wife’s home. (See R., Tab A, at 5-B.) As a result, it would be futile

to require Burnett to exhaust his ineffective assistance claim in the Oklahoma

courts -- as the Oklahoma Court of Criminal Appeals already has noted in

Burnett’s first state post-conviction proceeding, “He has not raised any issues that

he could not have raised in a motion to withdraw his guilty plea or in an appeal of

his conviction. Therefore, the right to raise the issues has been waived.” (R.,

Tab L, at 2.) Because exhaustion would be futile, we hold that Burnett’s federal

habeas claim of ineffective assistance of counsel is not barred by the exhaustion

requirement of 28 U.S.C. § 2254(c). 6




      6
        Also, Burnett’s federal habeas claim of ineffective assistance is not barred
in federal court by the state procedural default arising from Burnett’s failure to
allege the ineffective assistance claim in a direct appeal. The Tenth Circuit has
refused to impose a procedural bar in federal court against federal habeas claims
of ineffective assistance under circumstances similar to those presented here,
ruling that Oklahoma’s judicial doctrine that refuses to consider ineffective
counsel claims on collateral review is not an “adequate” state-law ground creating
a procedural bar in a federal court. See Brecheen v. Reynolds, 41 F.3d 1343,
1362 (10th Cir. 1994). Thus, Burnett’s failure to comply with Oklahoma’s
judicial doctrine requiring him to raise his claim of ineffective assistance in a
direct appeal will not procedurally bar him from raising the claim in a proper
federal habeas petition. See id.


                                        - 17 -
                                            B.

       As for Burnett’s habeas claim regarding his use of prescription medication

prior to his guilty plea, it seems clear that the district court did not err in

construing Burnett’s allegations on this issue as raising a new claim for relief.

However, in light of Burnett’s vigorous efforts on appeal to disclaim any intent to

raise a new habeas claim, we conclude that Burnett has waived this potential

claim for relief. As a result, we need not address this issue.



                                           III.

       In summary, we hold that it would be futile to require Burnett to exhaust

his claim of ineffective assistance of counsel, and thus, we REVERSE the

judgment of the district court and REMAND this case for further review.



       The mandate shall issue forthwith.

                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




                                           - 18 -
