                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JAN 22 2001
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 RICHARD A. O’DONNELL,

               Petitioner-Appellant,                     No. 00-1358
          v.                                                D. Colo.
 ROBERT FURLONG and THE                             (D.C. No. 99-B-2486)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.           **




      Richard O’Donnell, a prisoner in the custody of the state of Colorado,

seeks to appeal the district court’s order dismissing without prejudice his petition



      *
        This order and judgment is not binding precedent, except under the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.

      **
         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.
for a writ of habeas corpus. The district court adopted the report and

recommendation of the magistrate judge, who concluded that Mr. O’Donnell’s

petition constituted a mixed petition, containing some claims for which the

exhaustion of state remedies was excused and some claims for which it was not

excused. We agree with the analysis of the district court and the magistrate

judge, and we therefore deny Mr. O’Donnell’s application for a certificate of

appealability.



                                 I. BACKGROUND

      As we noted in a prior order and judgment,     see O’Donnell v. Brill , No. 99-

1216, 1999 WL 605666 (10th Cir. Aug. 9, 1999), a Colorado state court

convicted Mr. O’Donnell of eight counts of theft from at-risk adults, fifteen

counts of fraud or deceit in the sale of securities, six counts of theft, and

violation of the Organized Crime Control Act, Colo. Rev. Stat. § 18-17-101, et

seq. The court sentenced him to sixteen years’ imprisonment.

      Prior to the disposition of his state court direct appeal, Mr. O’Donnell filed

a pro se habeas petition in the federal district court in Colorado. He asserted the

following claims: (1) the state trial court denied him counsel and forced him to

represent himself; (2) the court erred in failing to order a mistrial based on his

inability to represent himself; and (3) the court improperly advised the jury to


                                           2
reach a verdict in a couple of hours. Noting that Mr. O’Donnell’s state court

direct appeal was still pending, the district court concluded that Mr. O’Donnell

had failed to exhaust his state remedies and dismissed the case without prejudice.

      Mr. O’Donnell then appealed the dismissal of this first federal habeas

petition to this court. In our order and judgment, we noted that, in his

application for a certificate of appealability, Mr. O’Donnell had raised an

additional challenge to the state court proceedings: he “contend[ed] the state

district court’s failure to provide a complete transcript to the Colorado Court of

Criminal Appeals, coupled with the ‘excessive amount of appeals in the state of

Colorado,’ ha[d] caused an inordinate two-year delay of his appeal.”   O’Donnell ,

1999 WL 605666 at *1.

      In assessing Mr. O’Donnell’s request for a certificate of appealability, we

noted that a considerable amount of time had passed without the Colorado Court

of Criminal Appeals having adjudicated his appeal. In particular, Mr. O’Donnell

filed his notice of appeal in the Colorado appellate court on August 27, 1997.

Mr. O’Donnell’s appellate counsel requested numerous extensions of time in

order to obtain missing trial court records and then filed a motion requesting the

appellate court to order reconstruction of the trial record. The court granted the

motion and ordered Mr. O’Donnell’s counsel to file status reports. When this

court issued the prior order and judgment denying Mr. O’Donnell’s first


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application for a certificate of appealability, the status reports indicated that the

reconstruction of the record was almost complete. Mr. O’Donnell’s counsel

reported that he expected to seek “at most” only one more extension of time to

file the appellant’s brief.   Id.

       In light of these representations, we concluded that, even though the more-

than-two-year delay in adjudicating Mr. O’Donnell’s appeal created a

presumption of an ineffective appellate process,   see id. at *2 (citing Harris v.

Champion , 15 F.3d 1538, 1554-56 (10th Cir. 1994)), the state had shown

sufficient facts justifying a continuance of the state appellate process before

adjudication of the issues raised by Mr. O’Donnell in a federal habeas corpus

proceeding. Accordingly, we denied Mr. O’Donnell’s application for a

certificate of appealability of the dismissal of his federal habeas petition without

prejudice.

       On December 29, 1999, Mr. O’Donnell filed a second federal habeas

petition asserting the following claims: (1) the trial court denied him counsel at

pre-trial, trial and sentencing proceedings and forced him to represent himself;

(2) the trial court failed to order a mistrial when, prior to closing arguments, he

suffered a nervous breakdown that rendered him incompetent to represent

himself; (3) the trial court improperly instructed the jury to reach a verdict in a

couple of hours; and (4) the trial court relied on an inaccurate presentence report


                                            4
and sentenced him without a hearing. Mr. O’Donnell again asserted that, because

the delay in the adjudication of the state court appeal violated his due process

rights, he should not be required to exhaust his state remedies.

      In the second federal habeas proceeding, a magistrate judge concluded that

the state had failed to justify the continued delay in adjudicating Mr. O’Donnell’s

direct appeal. The magistrate observed that the federal court had dismissed

Mr.O’Donnell’s first federal habeas petition only three weeks after the state trial

court had ordered reconstruction of the missing hearing transcripts. However,

following the dismissal of that first habeas petition, the state had continued to

delay adjudication of the appeal:

             Contrary to the representations in the State’s status
             report relied upon by the Tenth Circuit Court of Appeals
             [in the prior order and judgment], the supplemental state
             court record was not filed with and recertified by the
             Colorado Court of Appeals until February 2000, with
             another supplemental record filed in April 2000, six to
             eight months after the [dismissal of the first federal
             habeas petition]. Further, Petitioner’s court-appointed
             counsel filed his Opening Brief in May 2000, more than
             eight months after the O’Donnell decision.
             Respondents have not proffered any explanation for why
             it took the trial court more than seven months to
             complete the reconstruction of the missing hearing
             transcripts. Each of the three hearings for which
             transcripts were requested lasted one-half hour or less.

Rec. doc. 48 at 6 (Magistrate Judge’s Report and Recommendation, filed August

15, 2000).


                                          5
      Accordingly, the magistrate judge found that the state appellate process

had proven ineffective. Nevertheless, she concluded that she could not reach the

 merits of Mr. O’Donnell’s claims. She noted that Mr. O’Donnell had raised in

his second habeas petition two claims that he had not raised in his direct appeal

in the state courts: (1) his challenge to the trial court’s alleged instruction to the

jury to reach a verdict in a couple of hours; and (2) his argument that the trial

court had relied on an inaccurate presentencing report and had failed to conduct a

hearing. Thus, Mr. O’Donnell had filed a mixed petition, one containing

exhausted and unexhausted claims. The magistrate judge recommended dismissal

of the petition without prejudice. The district court adopted her recommendation.



                                  II. DISCUSSION

      In his application for a certificate of appealability, Mr. O’Donnell contends

that the district court erred in dismissing his petition without prejudice. He

observed that, after the magistrate issued her report and recommendation, he filed

a “Motion/Amendment to Pending Habeas Corpus Petition.”          See Rec. doc. 49.

In that motion, Mr. O’Donnell informed the district court that he was

withdrawing the two claims that the magistrate judge had found to be

unexhausted. Mr. O’Donnell now maintains that, in light of his withdrawal of

these claims, the district court should have proceeded to hear his other claims


                                           6
rather than dismissing his petition without prejudice.

       In Rose v. Lundy , 455 U.S. 509, 522 (1982), the Supreme Court held that

“a district court must dismiss habeas petitions containing both unexhausted and

exhausted claims.” This rule is intended to reduce piecemeal litigation, so that

“the district court will be more likely to review all of the prisoner’s claims in a

single proceeding, thus proving for a more focused and thorough review.”              Id. at

520. The Court added that application of this total exhaustion rule would not

impair prisoners’ interest in obtaining speedy federal relief on their claims: “[a

prisoner] can always amend the petition to delete the unexhausted claims, rather

than returning to state court to exhaust all of his claims.”     Id. ; see also Harris v.

Champion , 48 F.3d 1127, 1130 (10th Cir. 1995) (discussing          Rose ).

       Contrary to Mr. O’Donnell’s argument,         Rose did not require the district

court, after issuance of the magistrate’s report and recommendation, to allow Mr.

O’Donnell to amend his petition instead of dismissing it without prejudice. What

matters is Mr. O’Donnell’s right to assert the claims that he has already raised in

the state court direct appeal. Because the district court’s ruling allows him to

asserts these claims by filing a petition in a new case, the fact that the court did

not allow him to file an amended petition in the instant action is not significant.         1




       1
        In several recent decisions, the Ninth Circuit has concluded that there
may be instances in which the district court is required to allow a prisoner to
amend a habeas petition (such that it asserts only exhausted claims) rather than

                                              7
Thus, we conclude that the district court did not err in dismissing Mr.

O’Donnell’s second federal habeas petition without prejudice.



                                III. CONCLUSION

      We therefore DENY Mr. O’Donnell’s application for a certificate of

appealability and DISMISS this appeal. Mr. O’Donnell’s motion for partial

substitution of respondents is denied.



                                             Entered for the Court,

                                             Robert H. Henry
                                             United States Circuit Judge



dismissing it. See, e.g. , Anthony v. Cambria , No. 99-15458, 2000 WL 1838960
(9th Cir. Dec. 15, 2000); James v. Giles , 221 F.3d 1074, 1077 (9th Cir. 2000).
However, these decisions are grounded on concerns that, if the prisoner is not
allowed to amend a petition prior to dismissal, the petition may be barred by the
statute of limitations. See, e.g. , Anthony , 2000 WL 1838960, at *5 (“Prior to the
advent of AEDPA, dismissal without prejudice to the filing of a new, exhausted
petition caused no detriment to the petitioner, because there was no time
limitation on the filing of a federal habeas petition. AEDPA’s one-year statute of
limitations, however, has rendered outright dismissal perilous to some litigants,
because petitioners such as Anthony may find themselves time-barred when they
attempt to resubmit their exhausted claims to the district court.”).
        Here, Mr. O’Donnell has identified no statute of limitations problems that
would result if he is required to file a new habeas action containing only the
claims that he previously raised in the state court direct appeal, and no such
problems are apparent to us. Moreover, unlike the Ninth Circuit, this circuit has
not held that there are certain instances in which a district court is required to
allow a habeas petitioner to amend his petition rather than dismissing it without
prejudice.

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