                                                                     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         This order is not binding precedent except under the doctrines of law of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).




                                          -4-
      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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