                       United States Court of Appeals

                           FOR THE EIGHTH CIRCUIT


                               ___________

                               No. 95-4145
                               ___________


Kenneth Edward Murray,                    *
                                          *
           Appellant,                     *
                                          *      Appeal from the United
     v.                                   *      States District Court for
                                          *      the District of
                                          *      Minnesota.
Frank W. Wood,                            *
                                          *
           Appellee.                      *

                               ___________

                    Submitted: December 10, 1996

                          Filed: February 26, 1997
                               ___________

Before BOWMAN and HEANEY, Circuit Judges, and SMITH,* District
Judge.
                         ___________
SMITH, District Judge.


     Murray appeals the District Court’s order dismissing five of
his six grounds for habeas corpus relief with prejudice, and
dismissing his sixth ground for relief without prejudice.               We
vacate and remand with directions.


                              I.    BACKGROUND


     On August 27, 1991, Murray was convicted of eleven counts of
criminal   sexual   conduct        involving   three    different   minors.
Specifically, (1) with respect to E.R.E., he was convicted of one



   The Honorable Ortrie D. Smith, United States District Judge
for the Western District of Missouri, sitting by designation.
count of criminal sexual conduct in the second degree, three counts
of criminal sexual conduct in the first degree, and two counts of
criminal sexual conduct in the third degree; (2) with respect to
J.H.S., he was convicted of one count of criminal sexual conduct in
the second degree; and (3) with respect to J.F.J., he was convicted
of two counts of attempted criminal sexual conduct in the first
degree and two counts of criminal sexual conduct in the second
degree.       At     sentencing,      the     trial   court      applied   Minnesota’s
patterned      sex    offender       statute,     Minn.    Stat.     §   609.1352   and
sentenced Murray to a term of 282.5 months.
       Murray appealed to the Minnesota Court of Appeals, raising two
issues.      The first issue alleged there was insufficient evidence to
support the four convictions related to his involvement with
J.F.J., and        the     second    issue    alleged     that    the    trial   court’s
reliance on § 609.1352 constituted an ex post facto application of
law because the statute was passed in August 1989 -- after the
incidents giving rise to five of his convictions involving E.R.E.
The court of appeals affirmed the convictions for criminal sexual
conduct in the second degree involving J.F.J., but reversed the
convictions for attempted criminal sexual conduct in the first
degree.      The court of appeals also agreed with Murray’s ex post
facto argument and vacated four of the sentences related to his
conduct involving E.R.E., but affirmed the remaining two sentences
because there was “sufficient evidence in the record to support
application of this statute to the criminal acts involving E.R.E.
in 1989 and 1990.”           State v. Murray, No. C7-92-468, slip op. at 9
(Minn. Ct. App. Nov. 10, 1992).               Upon further review, the Minnesota
Supreme Court modified the remand order and instructed the trial
court to determine whether any of the conduct involving E.R.E.
occurred after § 609.1352 was passed.                 State v. Murray, 495 N.W.2d
412, 412-13 (Minn. 1993).
       Up to this point in time, Murray was represented by counsel.
On     remand,     Murray     waived       his    right   to     representation     and
represented himself.          At the resentencing hearing, Murray alleged
that    he   was     the    victim    of     prosecutorial       bias    and   selective
prosecution and that he had received ineffective assistance of


                                              2
counsel at trial.   He also orally argued that his right to be free
from double jeopardy had been violated because the prosecutor
pursued multiple charges arising from a single course of conduct
and that there was insufficient evidence to convict him for his
conduct involving E.R.E.    The trial court sentenced Murray to a
term of 162 months.
     Murray then initiated his second direct appeal, and was
appointed counsel to aid this effort.   In addition, as permitted by
Minn. R. Crim. Pro. 28.02.5(1), Murray filed a supplementary pro se
brief.   Appointed counsel raised two arguments, contending that the
sentences were excessive under state law and that the district
court erred in departing from the guidelines.      Murray’s pro se
brief raised, inter alia,2 six arguments:

     (1)   the manner in which he was charged exposed him to double
           jeopardy,

     (2)   Minnesota law violated his equal protection rights in
           that he received harsher treatment than would have been
           received by an offender committing identical acts but who
           lived with or was related to the victims,

     (3)   the state failed to prove that he used a position of
           authority to cause E.R.E. to submit to sexual acts (which
           distinguishes criminal sexual conduct in the second
           degree from criminal sexual conduct in the third degree),

     (4)   conduct amounting to nothing more than “hugs” with J.F.J.
           was charged as, and formed the basis for a conviction
           for, criminal sexual conduct in the second degree,

     (5)   he was the victim of selective prosecution and
           prosecutorial   bias,  and he received ineffective
           assistance of counsel, and

     (6)   his sentence violated the Eighth Amendment because it was
           disproportionate to the crimes he committed.

The Minnesota Court of Appeals affirmed the trial court; with
respect to the additional issues raised in Murray’s pro se brief,




  In addition to these issues, Murray presented additional
arguments regarding the legality, under state law, of the trial
court’s decision to depart from the guidelines.

                                  3
the court declared that they “either were raised and decided on the
first appeal or were not litigated at the trial court level and
will not be decided on appeal.”         State v. Murray, No. C1-93-1626,
slip op. at 5 (Minn. Ct. App. Feb. 23, 1994).         The court did not
discuss whether Murray could present any of these issues in a post-
conviction proceeding.    The Minnesota Supreme Court denied further
review without comment.
     Murray then instituted proceedings in federal court, seeking
a writ of habeas corpus.         His petition raises the same issues
identified in the text above.      The district court determined that
Murray had procedurally defaulted issues one, two, three, six, and
those portions of issue five that alleged prosecutorial misconduct
because he failed to timely present them to the state courts and
the court of appeals’ decision not to review those issues rested on
an independent and adequate state bar.          The district court also
determined that Murray had not exhausted all viable state avenues
for alleging ineffective assistance of counsel because Murray could
raise the issue in a state post-conviction proceeding.         Finally,
the district court reviewed and rejected issue four on the merits.
Murray now appeals.


                            I.    DISCUSSION


     “The federal habeas statute requires persons in state custody
who seek federal habeas relief to first exhaust available state
remedies.”   Wayne v. Missouri Bd. of Probation and Parole, 83 F.3d
994, 996 (8th Cir. 1996); see also 18 U.S.C. § 2254(b) and (c).       A
petitioner who has not availed himself of a state’s post-conviction
procedure should be required to do so unless he has no available,
nonfutile remedies or the state waives the exhaustion requirement.
Duvall v. Purkett, 15 F.3d 745, 746 (8th Cir. 1994).       The state has
not waived the exhaustion requirement in this case, and Murray has
failed to pursue nonfutile post-conviction proceedings in state
court with respect to two of his claims: his claim of ineffective
assistance of counsel and his claim that his Eighth Amendment
rights were violated.     With regard to the former, we note that


                                    4
Minnesota courts have consistently held that “a direct appeal from
a judgment of conviction is not the most appropriate way to raise
a claim of ineffective assistance of trial counsel because the
reviewing    court   does    not    have       the   benefit   of    all    the     facts
concerning why defense counsel did or did not do certain things.”
Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995) (quotation
omitted; emphasis added); see also Berg v. State, 557 N.W.2d 593
(Minn. Ct. App. 1996).       Because Minnesota courts will “consider[]
ineffective-assistance claims in postconviction proceedings even
though [the] petitioner did not raise the claims on direct appeal,”
Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992), we conclude that
Murray has not exhausted his state remedies with respect to that
claim.
     We reach the same conclusion with respect to Murray’s Eighth
Amendment argument.         We have identified at least five cases in
which the Minnesota Supreme Court has addressed the merits of an
Eight Amendment proportionality argument that was first raised in
a post-conviction proceeding.            Krominga v. State, 311 N.W.2d 858
(Minn.   1981);     Carle   v.     State,      257   N.W.2d    544    (Minn.      1977);
McLaughlin v. State, 190 N.W.2d 867 (Minn. 1971); Steeves v. State,
178 N.W.2d 723 (Minn. 1970); Olsen v. State, 177 N.W.2d 424 (Minn.
1970).   Conversely, we have been unable to find any cases in which
the Minnesota courts have indicated that such claims are not
appropriately raised in a post-conviction proceeding.                      In light of
the supreme court’s past practice, and in the absence of contrary
direction,    we    are   forced    to   conclude       that   a     post-conviction
proceeding remains an appropriate vehicle to present Murray’s
Eighth Amendment argument.
     We are thus presented with a situation in which Murray has
presented    some     unexhausted        claims,      some     exhausted       --    but
procedurally defaulted -- claims,3 and one exhausted claim that had


  In his initial appeal, Murray failed to allege (1) that he was
exposed to double jeopardy, (2) that his equal protection rights
had been violated, (3) insufficiency of the evidence with respect
to his conduct involving E.R.E., or (4) that he was prosecuted
because of bias or that the prosecutor otherwise
engaged in misconduct. Having failed to raise it at that time,

                                           5
been properly presented to the Minnesota court for consideration.
Federal courts cannot maintain jurisdiction over so-called “mixed
petitions.”    E.g., Castille v. Peoples, 489 U.S. 346, 349 (1989);
Victor v. Hopkins, 90 F.3d 276, 279-80 (8th Cir. 1996); Diamond v.
Wyrick, 757 F.2d 192, 193 (8th Cir. 1985); Snethen v. Nix, 736 F.2d
1241, 1244 (8th Cir. 1984).                 When presented with a petition
containing both exhausted and unexhausted claims, a district court
must either dismiss the entire claim without prejudice or permit
the petitioner       to   dismiss     the       unexhausted     claims.     Dukes   v.
Lockhart, 769 F.2d 504, 506 (8th Cir. 1985).


                               III.    CONCLUSION
     For the foregoing reasons, the judgment of the District Court
is vacated, and the case is remanded to the District Court with
directions to afford Murray a reasonable opportunity to dismiss the
unexhausted claims; absent Murray’s willingness to do so, the
District     Court    should   dismiss           the   entire    petition    without
prejudice.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




Murray missed his chance; the trial court was not permitted to
consider these issues on remand because the instructions from the
higher courts limited the issues to be considered. See Halverson
v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982; Duffey
v. Duffey, 432 N.W.2d 473, 476 (Minn. Ct. App. 1988). Because of
Murray’s procedural default, a federal court is unable to
consider his claims absent a showing of cause and prejudice.
Sawyer v. Whitley, 505 U.S. 333, 337-39 (1992).

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