                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 18 2004
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 JUAN JOSE VALLADARES-
 SANDOVAL,

           Petitioner-Appellant,
 v.                                                           No. 03-6325
 STEVEN BECK, Warden; ATTORNEY                          (D.C. No. CV-03-199-F)
 GENERAL OF THE STATE OF                                   (W.D. Oklahoma)
 OKLAHOMA,

           Respondents-Appellees.


                                   ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, 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.

       Petitioner Juan Jose Valladares-Sandoval, an Oklahoma state prisoner appearing

pro se, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We


       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand with

directions to dismiss the petition without prejudice.

       On October 1, 2001, after pleading guilty, petitioner was convicted in Oklahoma

state court of trafficking in illegal drugs and was sentenced to 25 years’ imprisonment.

He did not file a direct appeal. On February 28, 2002, he filed an application for state

post-conviction relief, asserting five grounds for relief: (1) his guilty plea was a product

of the combination of his inability to speak English, which he asserted was the equivalent

of operating under a mental disability, and ineffective assistance by defense counsel; (2)

he was denied his right to call the Mexican consulate to obtain legal representation and to

have the charges against him transferred to federal court; (3) the information was fatally

defective and failed to confer jurisdiction upon the state district court; (4) his rights were

violated at sentencing because a presentence investigation report was not prepared and

defense counsel failed to present mitigating circumstances; and (5) the prosecutor

withheld Brady material that petitioner could have used to obtain dismissal of the charges

against him. The state court denied relief on May 8, 2002. On October 23, 2002,

petitioner attempted to appeal the ruling by filing an application for writ of habeas corpus

with the Oklahoma Court of Criminal Appeals (OCCA). On November 13, 2002, the

OCCA declined jurisdiction over the matter, noting petitioner failed to attach a copy of

the state district court’s order as required by Rule 10.1(C)(2) of the Rules of the

Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (Supp. 1998).


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       Petitioner filed his federal habeas petition on February 13, 2003, asserting (1) his

guilty plea was invalid because the interpreter in state court misinterpreted both his and

the state district court’s statements when he entered his guilty plea; (2) the prosecutor

withheld Brady material; (3) he was denied the right to contact the Mexican consulate;

and (4) the state district court lacked jurisdiction. The magistrate judge concluded

petitioner’s claims were procedurally barred and the district court agreed, denying the

petition. The district court granted petitioner a certificate of appealability.

       After carefully examining the record on appeal, we conclude petitioner has failed

to exhaust all of the claims asserted in his habeas petition. In particular, petitioner has not

presented his claim to the Oklahoma state courts that he recently learned the interpreter in

the state proceedings misinterpreted his statements and those of the district court, thereby

rendering his guilty plea unknowing and involuntary. Because we are unsure if this

claim, allegedly based on newly discovered information, would be procedurally barred in

Oklahoma state court, we conclude it is proper to dismiss the petition without prejudice to

afford petitioner an opportunity to pursue the claim in Oklahoma state court or to refile a

federal habeas petition containing only his exhausted claims. See Rose v. Lundy, 455

U.S. 509, 510 (1982) (noting federal courts may dismiss mixed petitions to allow

petitioner to return to state court to pursue state court remedies); Brown v. Shanks, 185

F.3d 1122, 1125 (10th Cir. 1999) (same).

       The judgment of the district court is REVERSED and the case is REMANDED


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with directions to dismiss the petition without prejudice.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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