                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                        November 27, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 WILLIAM D. MAY,

       Petitioner - Appellant,

 v.                                                           No. 19-3206
                                                     (D.C. No. 5:17-CV-03095-SAC)
 JAMES HEIMGARTNER, Warden,                                     (D. Kan.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

       William May, a Kansas state prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his amended

28 U.S.C. § 2254 petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal “the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court”). The federal

district court dismissed Mr. May’s amended petition as a “mixed petition” containing



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       1
        Because Mr. May is pro se, we construe his filings liberally, but we do not act as
his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
both exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 273 (2005).

Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.

                                   I. BACKGROUND

                          A. State Conviction and Direct Appeal

      Mr. May was convicted of reckless second-degree murder and a domestic battery

misdemeanor. He was sentenced to 138 months in prison, 180 days in jail, and 36

months of post-release supervision. Mr. May appealed to the Kansas Court of Appeals

(“KCOA”), arguing the Kansas district court failed to give certain jury instructions and

violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The KCOA

affirmed Mr. May’s convictions and sentences and the Kansas Supreme Court denied

review. State v. May, 274 P.3d 46, 2012 WL 1352827, at *1 (Kan. Ct. App. Apr. 12,

2012) (unpublished).

                       B. State Post-Conviction Petition and Appeal

      Mr. May moved under § 60-1507 of the Kansas Code for post-conviction relief,

arguing his appellate counsel provided ineffective assistance (“IAC”). Mr. May’s

post-conviction counsel advised the Kansas district court during a preliminary hearing

that Mr. May had also raised IAC claims against his trial counsel. The court denied Mr.

May’s § 60-1507 petition because his IAC claims against his appellate counsel did not




                                            2
present triable issues and his IAC claims against his trial counsel were untimely. ROA at

98.2

       Mr. May appealed pro se, alleging new IAC claims against his post-conviction

counsel for failing to pursue IAC claims against his trial counsel. The KCOA affirmed

the district court’s judgment. See May v. State, 369 P.3d 340, 2016 WL 1391776, at *3

(Kan. Ct. App. Apr. 8, 2016) (unpublished). It determined that Mr. May had “waived and

abandoned” his IAC claims against appellate counsel “[b]y failing to brief and argue”

them and that he had failed to challenge the district court’s ruling denying his IAC claims

against trial counsel. Id. The KCOA further rejected the new IAC claims against his

post-conviction counsel as improperly raised for the first time in his KCOA appeal. The

Kansas Supreme Court again denied review.

                                C. Section 2254 Petition

       Mr. May then filed a petition for federal habeas corpus relief under 28 U.S.C.

§ 2254 in the United States District Court for the District of Kansas. The petition alleged

eight claims: two IAC claims against his appellate counsel, two IAC claims against his

trial counsel, three IAC claims against his post-conviction counsel, and one claim

alleging the KCOA erred in affirming the state district court’s denial of his § 60-1507

motion without conducting an evidentiary hearing.


       2
          See Kan. Stat. Ann. § 60-1507(f) (2014) (requiring petitions for post-conviction
relief to be brought within one year of the final order unless to prevent a manifest
injustice).


                                             3
   June 2017 Order

       In its June 2017 order, the district court denied all eight claims. It determined the

three IAC claims against post-conviction counsel were statutorily barred by 28 U.S.C.

§ 2254(i) and the IAC claims against his appellate and trial counsel were procedurally

defaulted unless he showed (1) “cause” for failure to exhaust and resulting prejudice or

(2) a fundamental miscarriage of justice. ROA at 34-36 (citing Frost v. Pryor, 749 F.3d

1212, 1231-32 (10th Cir. 2014)).3 The court advised that he could amend the petition to

present the exhausted claims from his direct appeal “concerning jury instructions and

Apprendi.” Id. at 35.

   October 2017 Order

       Rather than file an amended petition, Mr. May filed a motion requesting a stay and

abeyance. In its October 2017 order, the district court declined to stay the matter because

Mr. May could not show the “good cause” for failure to exhaust required for a stay and

abeyance under Rhines, 544 U.S. at 278. It explained that Mr. May had not sought

permission in state court to proceed in a motion under § 60-1507 on his IAC claims

against post-conviction counsel. The court granted Mr. May one month to show cause as

to why his petition should not be dismissed without prejudice.




       3
         The district court did not directly address Mr. May’s claim that the KCOA erred
in affirming the state district court’s denial of his § 60-1507 motion without conducting
an evidentiary hearing.
                                                4
   August 2018 Order

       Mr. May responded that his post-conviction counsel’s failure to present his

unexhausted claims was the cause for his failure to exhaust. He requested permission to

proceed in a second § 60-1507 post-conviction action and enclosed motions for an

evidentiary hearing and to appoint counsel.

       In its August 2018 order, the district court determined Mr. May had failed to show

cause for failure to exhaust and that the Kansas state courts, not the federal court, would

have needed to address whether Mr. May could proceed in a second or successive

§ 60-1507 post-conviction action. The court denied both motions but granted Mr. May a

one-month extension to amend his petition and present the properly exhausted claims

from his direct appeal. It warned that if Mr. May “cho[se] not to do so within the time

allowed, [it] [would] dismiss [the] petition.” Id. at 52.

   September 2019 Order

       Mr. May then filed an amended § 2254 petition presenting nine claims for relief.

Claims (1) through (8) were the same as in the original petition, but Claim (9) newly

raised the “jury instruction and Apprendi” claims made in Mr. May’s direct appeal. Id. at

73. He also filed a “motion for resentence,” id. at 54, and a “motion for illegal sentence,”

id. at 58.

       In September 2019, the district court denied Mr. May’s amended § 2254 petition

in its entirety as a “mixed petition” “contain[ing] both exhausted and unexhausted

claims.” Id. at 100 (quoting Pliler v. Ford, 542 U.S. 225, 227 (2004)). The court said the

                                              5
amended petition was “mixed” because Claims (1) through (8) were unexhausted and

Claim (9) was exhausted in the direct appeal. Id. at 101. It said a district court

“presented with a mixed petition . . . has [a] few options”: (1) “[d]ismiss the mixed

petition in its entirety”; (2) stay and abate for the petitioner to exhaust the unexhausted

claims in state court; (3) “permit the petitioner to dismiss the unexhausted claims and

proceed with the exhausted claims”; or (4) under 28 U.S.C. § 2254(b)(2), “ignore the

exhaustion requirement . . . and deny the petition on the merits if none of the . . . claims

has any merit.” Id. at 100 (quoting Fairchild v. Workman, 579 F.3d 1134, 1156 (10th

Cir. 2009)).

       The court chose the first option and dismissed the petition in its entirety. It

rejected the stay and abate option because Mr. May failed to show (1) “good cause” for

failure to exhaust and (2) that the unexhausted claims were potentially meritorious. Id.

(quoting Rhines, 544 U.S. at 277). It declined to re-offer Mr. May the option to “dismiss

his unexhausted claims and proceed on . . . [t]he sole exhausted [Claim (9)]” because the

court already had “given [Mr. May] multiple opportunities” to do so. Id. at 100-01. It

declined to “definitively state” the unexhausted and exhausted claims lacked merit under

§ 2254(b)(2) because the former “[had] not been developed in the state courts,” making it

“simply unclear whether [Mr. May] might have prevailed.” Id. at 101. The court also

denied the “motion for resentence” and “motion for illegal sentence” for failure to

exhaust. Id. at 102.



                                              6
       Mr. May timely appealed. In his brief to this court, he asserts the same Claims (1)

through (8) as in his amended § 2254 petition while omitting Claim (9). He moves this

court to conduct an evidentiary hearing and to appoint counsel.

                                     II. DISCUSSION

                                   A. COA Requirements

       We must grant a COA to review a § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A);

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA, a petitioner must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Where, as here, the district court denied Mr. May’s habeas petition on

procedural grounds “without reaching the prisoner’s underlying constitutional claim,” we

will grant a COA only if the petitioner demonstrates both “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis

added). Because we may resolve whichever issue presents the “more apparent” answer,

we begin and end our discussion with the district court’s procedural ruling. Id. at 485.

                               B. Rules for Mixed Petitions

       A state prisoner seeking federal habeas relief must exhaust available state court

remedies before filing a § 2254 petition. 28 U.S.C. § 2254(b)(1)(A). To satisfy the

exhaustion requirement, prisoners must fairly present their claims to the state’s highest




                                              7
court—either by direct appeal or in a post-conviction attack—before asserting the claims

in federal court. See Fairchild, 579 F.3d at 1151.

       In general, federal district courts may not adjudicate mixed petitions and must

dismiss them in their entirety. See Rose v. Lundy, 455 U.S. 509, 522 (1982). This rule of

total exhaustion, however, “is not absolute.” Harris v. Champion, 48 F.3d 1127, 1131

n.3 (10th Cir. 1995). A district court presented with a mixed petition has three other

options. See Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016).

       First, a district court may stay and abate a case, allowing a petitioner to “return[]

to state court to exhaust his previously unexhausted claims” under “limited

circumstances.” Rhines, 544 U.S. at 275, 277.4 A district court’s denial of a stay and

abate would likely be an abuse of discretion if a petitioner had (1) “good cause for his

failure to exhaust,” (2) “potentially meritorious” unexhausted claims, and (3) “no

indication . . . [of] intentionally dilatory litigation tactics.” Id. at 278; see also Kell v.

Benzon, 925 F.3d 448, 468 (10th Cir. 2019).

       Second, “[t]he court may also permit the petitioner to delete the unexhausted claim

from his petition and proceed only on the exhausted claims.” Wood, 833 F.3d at 1273

(citing Lundy, 455 U.S. at 510).




       4
         The total exhaustion requirement in 28 U.S.C. § 2254(b)(1)(A) and the 1-year
statute of limitations in 28 U.S.C. § 2244(d) can foreclose “mixed petitions” from federal
review. Id. at 275. Rhines permitted district courts to use a “stay and abeyance”
procedure “in limited circumstances” to avoid this result. Id. at 275, 277.

                                                8
       Third, a petition “may be denied on the merits” in its entirety, notwithstanding the

failure to exhaust. 28 U.S.C. § 2254(b)(2). This option is available only if the court

denies both the unexhausted and exhausted claims. See Moore v. Schoeman, 288 F.3d

1231, 1235-36 (10th Cir. 2002) (explaining § 2254(b)(2) permits “deny[ing] the entire

petition on the merits,” but not a “hybrid approach”).

                                        C. Analysis
       We deny a COA because reasonable jurists could not debate the district court’s

procedural ruling to dismiss Mr. May’s mixed habeas petition in its entirety. After giving

Mr. May ample opportunity to avoid dismissal of his mixed petition, the district court

correctly declined to (1) stay and abate the case because Mr. May failed to show the

elements required under Rhines, 544 U.S. at 278; (2) offer Mr. May another chance to

delete the unexhausted claims; or (3) dismiss his unexhausted and exhausted claims on

the merits.

   Stay and Abeyance

       As discussed above, a stay and abeyance is appropriate if the petitioner shows

(1) “good cause for his failure to exhaust,” (2) “potentially meritorious” unexhausted

claims, and (3) no “dilatory litigation tactics.” Rhines, 544 U.S. at 278. The district court

declined to stay and abate Mr. May’s petition because he failed to show good cause.5




       5
        Because the district court found it was unclear whether petitioner might have
prevailed on the unexhausted claims, it follows the court refused to stay and abate
because the petitioner had failed to show “good cause.”
                                             9
Our review of his filings shows Mr. May offered no good cause showing in district court

to justify a stay and abeyance.

   Dismiss and Proceed

       In its September 2019 order, the district court declined to provide Mr. May with

another opportunity to dismiss his unexhausted claims and proceed with the exhausted

claims. The court previously provided Mr. May with multiple opportunities to proceed

with only the exhausted claims, including in its June 2017, October 2017, and August

2018 orders. See, e.g., Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008)

(determining “ample opportunity to amend” where petitioner twice failed to properly

amend). In its August 2018 order, the court specifically warned that if Mr. May “cho[se]

not to [properly amend his petition] within the time allowed, the [c]ourt [would] dismiss

[the] petition.” ROA at 52. The district court was more than generous and cannot be

faulted for not offering yet another opportunity for Mr. May to shed his unexhausted

claims.

   Deny on Merits

       The district court also declined to dismiss Mr. May’s unexhausted and exhausted

claims on the merits under 28 U.S.C. § 2254(b)(2). The court could not assess the merits

of the unexhausted claims because they had “not been developed in the state court,” and

it was “simply unclear whether [Mr. May] might have prevailed in any of them.” Id. at

101. Given Mr. May’s failure to pursue these claims in state court proceedings, the

interests of comity and federalism would not be “better served” if the court had addressed

                                            10
and dismissed the unexhausted and exhausted claims on the merits. Harris, 48 F.3d at

1131 n.3. We find no error in the district court’s analysis.

                                   III. CONCLUSION

       Reasonable jurists could not debate the correctness of the district court’s

procedural ruling in dismissing the petitioner’s mixed petition in its entirety. We deny a

COA and dismiss this matter. We also deny the petitioner’s requests to conduct an

evidentiary hearing and to appoint counsel.


                                               Entered for the Court


                                               Scott M. Matheson, Jr.
                                               Circuit Judge




                                              11
