                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JASON P. HINZO,

          Petitioner - Appellant,
                                                         No. 10-2043
 v.                                         (D.C. No. 1:09-CV-00489-MCA-LFG)
                                                          (D.N.M.)
 GEORGE TAPIA, Warden; GARY K.
 KING, Attorney General of the State
 of New Mexico,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, EBEL, and LUCERO, Circuit Judges. **


      Petitioner-Appellant Jason Hinzo, a state inmate appearing pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s dismissal of his

habeas petition on the ground that it was a mixed petition, containing both

exhausted and unexhausted claims. See 28 U.S.C. § 2254(b) (exhaustion


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
requirement); Rhines v. Webber, 544 U.S. 269, 273 (2005) (summarizing Rose v.

Lundy, 455 U.S. 509, 518-19 (1982)); see also Allen v. Zavaras, 568 F.3d 1197,

1201 n.7 (10th Cir. 2009) (discussing mixed petitions and Rhines). Because the

district court erred in dismissing some of the claims with prejudice on the merits

and others without prejudice for failure to exhaust, we grant a COA, reverse, and

remand.

      Mr. Hinzo instituted this 28 U.S.C. § 2254 action to challenge his New

Mexico state court conviction. He alleged, inter alia, ineffective assistance of

counsel, due process violations, and improper sentence enhancements. R. 5-13.

In total, Mr. Hinzo raised nineteen grounds for relief. R. 5-13, 370-71. He raised

one of these grounds on direct appeal and sought review of the state appellate

court’s decision. R. 61-65 (Court of Appeals), 117 (Supreme Court). He raised

one of these grounds in state court in a motion to amend his judgment and

sentence. R. 22-24. The motion was denied, and Mr. Hinzo did not seek

certiorari. R. 22-24. He raised eleven of these grounds in his state habeas

petition, which was dismissed by the state district court. R. 345-49. Again, Mr.

Hinzo did not seek certiorari. Six of the claims were never presented to New

Mexico state courts.

      The magistrate judge concluded that only one of the claims had been

properly exhausted. R. 371. Because Mr. Hinzo failed to demonstrate cause and

prejudice or a fundamental miscarriage of justice for failure to exhaust twelve of

                                        -2-
his claims, see Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000), the

magistrate judge recommended that they be dismissed with prejudice as

procedurally barred. R. 370-72. Noting that Mr. Hinzo had not indicated that he

would like to proceed on the single exhausted claim despite being given several

opportunities to do so, the magistrate judge recommended dismissing that claim

also. R. 370. The district court adopted the magistrate’s report and

recommendation and dismissed the petition. R. 410-413. The claims found to be

procedurally barred were dismissed with prejudice; all other claims were

dismissed without prejudice. R. 412-13.

      A COA is a jurisdictional prerequisite to our review, Miller-El v. Cockrell,

537 U.S. 322, 327 (2003), and we may issue one “only if the applicant has made a

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

§ 2253(c)(2). In addition, where a district court denies a petition on procedural

grounds, a COA will issue only when the district court’s procedural ruling is

reasonably debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the

district court’s procedural ruling is in error, and we are persuaded that the

appropriate course is to grant a COA, reverse, and remand as we have done

before. See Snyder v. Ortiz, 288 F. App’x 505, 509 (10th Cir. 2008).

      Exhaustion of state court remedies is normally required. 28 U.S.C. §

2254(b)(1)(A). “The exhaustion requirement is satisfied if the federal issue has

been properly presented to the highest state court, either by direct review of the

                                         -3-
conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36

F.3d 1531, 1534 (10th Cir. 1994). Mr. Hinzo failed to exhaust most of his claims

by not seeking certiorari from the denial of post-conviction remedies. He also

failed to raise six of his claims before any New Mexico state court. Therefore, he

did not exhaust these claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (federal courts may not grant habeas unless the prisoner has “give[n] the

state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process”). Mr.

Hinzo, however, presented one properly exhausted claim in his habeas petition.

      Because Mr. Hinzo’s petition includes both an exhausted claim and claims

that have never been raised in state court, the conclusion that his petition is mixed

is not reasonably debatable. “[A] district court faced with a habeas petition

containing unexhausted claims may either (1) dismiss the entire petition without

prejudice in order to permit exhaustion of state remedies, or (2) deny the entire

petition on the merits.” Moore v. Schoeman, 288 F.3d 1231, 1235-36 (10th Cir.

2002). Our precedent provides “that it is the entire petition that must be resolved

on the merits, not just individual non-exhausted claims.” Id. at 1235. Here, the

court pursued a hybrid approach—dismissing some claims with prejudice (a

disposition on the merits) and others without prejudice. While the court could

have denied the entire petition on the merits had it deemed that Mr. Hinzo’s

unexhausted claims were patently meritless, Moore forecloses the sort of hybrid

                                         -4-
approach adopted here. Id. at 1235-36 (“There is no authorization to adopt the

hybrid approach the district court pursued in this case.”). The district court must

choose one of the two valid approaches.

      Accordingly, we GRANT a COA, and REVERSE AND REMAND for

further proceedings.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                          -5-
