                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                   August 16, 2017

                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court

PAUL CAIN,

      Petitioner - Appellant,

v.                                                   No. 17-2074
                                           D.C. No. 2:15-CV-00755-WJ-KK
                                                      (D. N.M.)
JAMES FRAWNER; HECTOR H.
BALDERAS,

      Respondents - Appellees.



       ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.



     In state court, Mr. Paul Cain was convicted of third-degree criminal

sexual penetration. After unsuccessfully pursuing state-court remedies, Mr.

Cain sought federal habeas relief. The federal district court found that Mr.

Cain had not exhausted some of his claims and allowed Mr. Cain a

specified time-period to withdraw his unexhausted claims. Mr. Cain did not

respond within the designated time-period, and the district court ordered

dismissal without prejudice on the ground that Mr. Cain had failed to
exhaust some of his habeas claims. Mr. Cain wants to appeal. But to

appeal, he needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).

      For the certificate of appealability, Mr. Cain must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Mr. Cain would meet this standard only if reasonable jurists

could “disagree with the district court's resolution of his constitutional

claims or . . . jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller–El v. Cockrell, 537

U.S. 322, 327 (2003).

      A federal district court could grant habeas relief only if Mr. Cain

exhausted all of his habeas claims. Rose v. Lundy, 455 U.S. 509, 521-22

(1982). Mr. Cain does not deny that some of the habeas claims are

unexhausted. But he argues that the court should have stayed the

proceedings because any subsequent habeas petition would be procedurally

barred. But the district court reasoned that Mr. Cain had failed to show

           the presence of good cause for the failure to exhaust the claims
            or

           the absence of dilatory tactics.

Mr. Cain has not presented a valid reason to disturb the district court’s

determination. As a result, we conclude that reasonable jurists could not

debate the district court’s decision to order dismissal rather than to stay




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the proceedings. Based on this conclusion, we (1) deny Mr. Cain's request

for a certificate of appealability and (2) dismiss the appeal.


                                    Entered for the Court


                                    Robert E. Bacharach
                                    Circuit Judge




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