                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 2 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PETER RAY ARAGON,

                Petitioner-Appellant,

    v.                                                   No. 98-2192
                                                  (D.C. No. CIV-96-1208-BB)
    JOHN SHANKS, Warden;                                  (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.




         After examining the briefs and 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      This order and judgment is not binding precedent, except under the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 Peter Ray Aragon appeals the district court’s dismissal of his

amended petition for a writ of habeas corpus for failure to exhaust all the claims

contained therein. We affirm.

      On September 3, 1996, petitioner filed this habeas petition pursuant to

28 U.S.C. § 2254, alleging nine claims for relief. The district court dismissed

four of the claims and appointed counsel to represent petitioner on the remaining

claims. Petitioner, through appointed counsel, moved to amend the petition to

add six claims related to his habitual offender sentence enhancement. The motion

was granted, and on February 24, 1998, petitioner filed his amended petition.

      On March 27, 1998, respondent moved to dismiss the petition because it

contained exhausted and unexhausted claims. The matter was referred to a

magistrate judge, who recommended dismissing the “mixed” petition pursuant to

Rose v. Lundy , 455 U.S. 509, 510 (1982). In his objections to the magistrate

judge’s recommendation, petitioner made the following statement:

            If this court adopts the Magistrate’s findings and finds that
      new claims 11, 12, 13, and 15 . . . are not exhausted, then Mr.
      Aragon asks this court to dismiss those claims without prejudice and
      to remand this matter to the Magistrate for further proceedings on the
      exhausted claims.

R. I, doc. 43, p. 2. The district court noted that it could not dismiss only the

unexhausted claims, but was required to dismiss the entire petition. This appeal

followed.


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       In Rose v. Lundy , the Supreme Court held that a “district court must

dismiss . . . ‘mixed petitions,’ leaving the prisoner with the choice of returning to

state court to exhaust his claims   or of amending or resubmitting the habeas

petition to present only exhausted claims   .” 455 U.S. at 510 (emphasis added).

Throughout the opinion, the Court reiterated that a petitioner who chooses to

abandon his unexhausted claims must actually amend the petition to delete such

claims. See, e.g. , id. at 520 (noting that prisoners who submit mixed petitions

“are entitled to resubmit a petition with only exhausted claims,” and that they

always have the option to “amend the petition to delete the unexhausted claims,

rather than returning to state court”). Nowhere does the Court authorize a district

court to retain exhausted claims while simply dismissing the unexhausted claims

without prejudice.

       The Tenth Circuit has held specifically that a district court must dismiss an

entire mixed petition rather than dismissing only the unexhausted claims.    See

Harris v. Champion , 48 F.3d 1127, 1131, 1133 (10th Cir. 1995) (disapproving

dismissal of unexhausted claims only and clarifying that “a court cannot

adjudicate the exhausted claims in a mixed petition unless the petitioner amends

the petition to delete the unexhausted claim”).

       Contrary to petitioner’s argument on appeal, a request for dismissal of

unexhausted claims without prejudice is not the same as actively amending the


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petition to present only exhausted claims. Such a deliberate act makes clear that

the petitioner is choosing to abandon his unexhausted claims, knowing that any

attempt to bring such claims later will probably result in their dismissal as a

successive petition. It is the act of the petitioner, then, that abandons the claims,

not the court’s act of dismissing such claims without prejudice. Despite clear

case law requiring petitioner to abandon his unexhausted claims by amending or

resubmitting the petition, he did not do so. Further, based on petitioner’s earlier

amendment of his petition, it is clear he knew how to ask for the court’s

permission to amend. The district court did not err, therefore, in dismissing the

entire mixed habeas petition based on   Rose v. Lundy .

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                      Entered for the Court

                                                      David M. Ebel
                                                      Circuit Judge




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