                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JAN 30 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 JAMES E. CAGLE,

          Petitioner-Appellant,

 v.                                                        No. 97-7052
                                                       (D.C. No. 96-CV-5-S)
 RON CHAMPION; ATTORNEY                                    (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      James E. Cagle appeals the district court’s dismissal of his petition for writ

of habeas corpus under 28 U.S.C. § 2254. He contends the court erred in


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
dismissing his claims for failure to exhaust state remedies. We deny a certificate

of probable cause and dismiss the appeal. 1

      In his petition before the district court, Cagle asserted (1) the trial court

erred in failing to sever his trial from that of his codefendant; (2) his sentence

was excessive; (3) he was denied the opportunity to present a defense; (4) there

was insufficient evidence to support his conviction; and (5) the Court of Criminal

Appeals erred in its rulings on his direct appeal issues. He conceded that Issue 5

had not been presented to the Oklahoma state courts. Respondents moved to

dismiss for failure to exhaust state remedies. Cagle responded with a motion to

dismiss respondents’ motion to dismiss, which the district court construed as a

motion to amend his petition to include only claims that had been exhausted.

Cagle also filed a motion to consolidate with another habeas case, which the court

construed as a motion to amend to include grounds for relief raised in the other

case (which had been dismissed). The court granted the motions and gave Cagle

twenty days to file an amended petition. Rather than amend his petition, Cagle


      1
         Since Cagle filed his § 2254 petition on December 5, 1995, the Antiterrorism
and Effective Death Penalty Act of 1996 does not apply. See Lindh v. Murphy, 117 S. Ct.
2059 (1997); United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).
Therefore, we construe Cagle’s appeal as a request for a certificate of probable cause.
See Hernandez v. Starbuck, 69 F.3d 1089. 1090 n.1 (10th Cir. 1995). A certificate of
probable cause will be granted only if petitioner makes “a substantial showing of the
denial of an important federal right by demonstrating that the issues raised are debatable
among jurists, that a court could resolve the issues differently, or that the questions
deserve further proceedings.” Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994).

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objected to the order, arguing the court lacked jurisdiction to order an amended

petition to include grounds raised in the dismissed case which had been appealed

to this court. Cagle still had not filed an amended petition nearly four months

later and the court dismissed the case for failure to exhaust state court remedies.

       Under the law applicable here, a federal court cannot consider the merits of

a state prisoner’s habeas petition until the prisoner has exhausted available state

remedies. 2 In Rose v. Lundy, 455 U.S. 509 (1982), the Court held district courts

must dismiss “mixed petitions” containing both exhausted and unexhausted

claims, leaving petitioners with the choice of returning to state court to exhaust

claims or amending their habeas petitions to present only exhausted claims to the

federal courts.

       The cases relied on by Cagle actually support the district court’s decision.

In Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996), the court held it was not

error to require Williams to choose between deleting unexhausted claims or

having his petition dismissed without prejudice to permit exhaustion. In Ross v.

Petsock, 868 F.2d 639, 642 (3d Cir. 1989), the court held Ross should be given

the opportunity to amend his petition to delete unexhausted claims and proceed



       2
          Since the petition was filed before the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, the amendment to 28 U.S.C. § 2254(b) which
permits federal courts to deny on the merits claims that have not been exhausted in state
court is inapplicable.

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solely on his exhausted claims. Here, the district court gave Cagle an opportunity

to amend his petition to present only exhausted claims but he failed to do so.

Consequently, dismissal was appropriate.

      Cagle asserts in the alternative that the district court erred by dismissing his

petition with prejudice so he could not pursue his unexhausted claims in state

court. Dismissal of a habeas petition for failure to exhaust state remedies is

ordinarily without prejudice to enable petitioner to pursue those remedies.

Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997). The district court did not

specify that the dismissal was with prejudice and we construe it as a dismissal

without prejudice.

      Cagle’s application for a certificate of probable cause is DENIED and this

appeal is DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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