                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 22 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES E. CAGLE,

                Petitioner-Appellant,

    v.                                                   No. 97-7145
                                                    (D.C. No. 96-CV-12-S)
    RON CHAMPION; ATTORNEY                               (E.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                             ORDER AND JUDGMENT          *




Before ANDERSON , BARRETT , and TACHA , 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); 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      This order and judgment is not binding precedent, except under the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.
          Petitioner James Cagle appeals from the district court’s dismissal of his

petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Because

Mr. Cagle’s petition was a successive petition involving the same conviction that

was the subject of another, already-pending petition in the district court, the

district court correctly dismissed the second petition.

          The present situation is complicated by the fact that Mr. Cagle initially

filed two § 2254 petitions in the district court. The petition in this case, district

court No. 96-012-S filed in the Northern District of Oklahoma on October 31,

1995, listed ten grounds for relief. The case was transferred to the Eastern

District of Oklahoma where Mr. Cagle’s other § 2254 petition, district court No.

96-005-S, had also been transferred and was pending. The petition in case No.

96-005-S arose from the same conviction and listed five different grounds for

relief.

          On August 23, 1996, the district court granted the state’s motion to dismiss

No. 96-012-S because petitioner was attacking the same conviction in case No.

96-005-S then pending before the court. On appeal of the dismissal of No.

96-012-S, this court remanded for more explanation from the district court

justifying the dismissal.    See Cagle v. Champion , No. 96-7109, 1997 WL 346038,

at ** 1 (10th Cir. June 24, 1997). The order appealed from in this case is the




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district court’s supplemental order clarifying its original August 23, 1996 order of

dismissal.

      After the district court initially dismissed case No. 96-012-S, it turned to

case No. 96-005-S. In the latter case, the state had moved to dismiss for failure to

exhaust state remedies regarding one of the claims. The court construed

petitioner’s response as a motion to amend the petition to include only the

exhausted claims. The court further construed petitioner’s motion to consolidate

the two cases (one of them now dismissed) as a motion to amend the petition in

No. 96-005-S to include the claims presented in the dismissed case No. 96-012-S.

The court then granted petitioner’s two motions to amend the petition to include

only exhausted claims and to add the claims from No. 96-012-S. The court

directed petitioner to file an amended petition in No. 96-005-S.

      Some four months later, when petitioner failed to file an amended

complaint, the district court dismissed case No. 96-005-S as a mixed petition

containing both exhausted and unexhausted claims. This court, in an unpublished

order and judgment,   see Cagle v. Champion , No. 97-7052, 1998 WL 39228, at

**2 (10th Cir. Jan. 30, 1998), denied the application for a certificate of probable

cause and dismissed the appeal.

      In so far as petitioner appeals the initial dismissal of case No. 96-012-S, his

position is without merit. Rule 2(c) of the Rules Governing Section 2254 Cases


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in the United States District Courts requires that all of petitioner’s grounds for

relief must be set forth in one petition.   See also Rule 9(b) (authorizing dismissal

of a second petition where the assertion of new or different grounds for relief

constitutes abuse of the writ). Because petitioner already had a § 2254 petition

pending before the district court involving the same conviction, it was appropriate

for the district court to dismiss the second petition.

       Petitioner was granted the opportunity to amend his complaint in No.

96-005-S to add the claims from the dismissed petition but failed to do so. He

cannot now complain that he did not have the opportunity to present his case

before the district court.

       Petitioner’s application for a certificate of appealability and for leave to

proceed on appeal without prepayment of costs or fees are DENIED. This appeal

is DISMISSED. The mandate shall issue forthwith.



                                                         Entered for the Court



                                                         Deanell Reece Tacha
                                                         Circuit Judge




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