                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 26, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 RICHARD D. RICHWINE,

              Plaintiff - Appellant,

 v.                                                     No. 10-2247
                                            (D.C. No. 1:09-CV-00870-JB-GBW)
 ANTHONY ROMERO, Warden,                             (D. New Mexico)

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Richard D. Richwine, a prisoner of the State of New Mexico,

applied for a writ of habeas corpus in the United States District Court for the

District of New Mexico. See 28 U.S.C. § 2254. The court dismissed the

application without prejudice after ruling that some of the claims were

unexhausted. Defendant sought to appeal the dismissal and we granted a



      *
       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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
certificate of appealability (COA), see id. § 2253(c)(1)(A), directing the State to

submit a response addressing whether it had waived the exhaustion requirement.

We reverse the judgment of the district court and remand for further proceedings.

The State waived its exhaustion defense, and the district court failed to consider

that waiver before dismissing Defendant’s application on exhaustion grounds.

I.    BACKGROUND

      On October 11, 2007, a New Mexico jury found Defendant guilty of

trafficking controlled substances, possession of marijuana, and use or possession

of drug paraphernalia. The state trial court sentenced him to concurrent sentences

of nine years’ imprisonment on the trafficking conviction, 15 days’ imprisonment

on the marijuana conviction, and 364 days’ imprisonment on the paraphernalia

conviction. 1 He appealed and the New Mexico Court of Appeals affirmed. The

New Mexico Supreme Court denied his petition for a writ of certiorari.

Defendant then sought habeas relief in state court. The trial court denied his

petition and the New Mexico Supreme Court again denied certiorari.

      After pursuing these state remedies, Defendant filed a pro se application

under 28 U.S.C. § 2254 in federal district court. The State filed an answer and a

motion to dismiss the application, In both pleadings the State identified five

grounds for relief raised by Defendant that encompassed a total of 23 claimed

errors. The State argued that because 12 of these errors had not been raised in

      1
          On appeal, Defendant challenges only the trafficking conviction.

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any state proceeding and were hence unexhausted, the habeas application was a

mixed one—that is, it contained both exhausted and unexhausted claims. The

State asked that the application be dismissed without prejudice as a mixed

application or that the district court determine that all the claims were without

merit and dismiss them with prejudice. See Moore v. Schoeman, 288 F.3d 1231,

1232 (10th Cir. 2002) (setting forth alternatives for disposing of mixed

applications).

      A magistrate judge issued proposed findings and a recommended

disposition in which he identified a number of claims as unexhausted. Although

some of these claims had been raised in Defendant’s state habeas petition, the

magistrate judge believed that Defendant had not petitioned the New Mexico

Supreme Court for certiorari regarding the habeas petition and that those claims

were therefore unexhausted. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (to exhaust state remedies, applicants must petition state supreme court for

discretionary review when it “is a normal, simple, and established part of the

State’s appellate review process”). The magistrate judge recommended that

Defendant be allowed to amend his application to remove the unexhausted claims

and that the application be dismissed if he did not.

      The magistrate judge also ordered the State to provide the record in

Defendant’s state proceedings. It was filed after issuance of the initial

recommendation. Contrary to the magistrate judge’s original view, the submitted

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state record indicated that Defendant had sought review in the New Mexico

Supreme Court of the denial of his habeas petition. The record did not contain

Defendant’s petition for certiorari, however, so the magistrate judge ordered the

State to produce it. When the State submitted the petition, it also filed a

supplemental answer revising its position on exhaustion. The supplemental

answer stated:

             5.      Following a review of [Defendant’s] state habeas corpus
      petition filed March 13, 2009, as well as the petition for writ of
      certiorari, filed April 22, 2009, [the State] submits [Defendant] has
      exhausted his issues by bringing the claims before the New Mexico
      state courts.[]
             6.      [The State] continues to assert that [Defendant] has
      failed to raise any federal constitutional claim requiring federal
      habeas corpus review and relief; specifically the federal habeas
      corpus standards of review apply. 28 U.S.C. § 2254(d) and (e).
             7.      [The State] does not waive any other defenses or other
      objections to any claims raised in the Petition, Doc. 1.
             ...
             WHEREFORE [the State] respectfully requests this Court
      dismiss the Petition with prejudice.

R., Vol. 1 pt. 3 at 462.

      Defendant’s response to the supplemental answer noted that the State had

now acknowledged that all issues had been exhausted. The magistrate judge

issued an amended recommended disposition after considering the full state-court

record. The new recommendation said that only four of Defendant’s claims of

ineffective assistance of counsel were unexhausted but still recommended that the




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application be dismissed without prejudice if Defendant did not amend to remove

those claims.

      Defendant’s objection to the magistrate judge’s recommendation noted

again that the State had conceded in its supplemental answer that his claims were

exhausted. In response to the objection, the district court did not mention waiver

by the State but instead analyzed whether Defendant had exhausted each claim. It

adopted in part the magistrate judge’s recommendation, determining that two of

Defendant’s ineffective-assistance-of-counsel claims had not been exhausted. 2

The court’s order stated that if Defendant did not amend his application within 30

days to remove the unexhausted claims, the application would be dismissed

without prejudice. Defendant did not delete the apparently unexhausted claims,

and the district court dismissed his application without prejudice.

II.   DISCUSSION

      A habeas application cannot be granted unless the applicant has exhausted

available state remedies. See 28 U.S.C. § 2254(b)(1)(A). A state may waive the

exhaustion requirement, but only if “the State, through counsel, expressly waives



      2
        We note that it is not clear to us what is required for exhaustion when a
New Mexico prisoner seeks state habeas relief. The New Mexico Supreme Court
has stated that its review by certiorari of a state district court denial of a habeas
petition is actually an exercise of its original jurisdiction. See Cummings v. State,
168 P.3d 1080, 1082–83 (N.M. 2007). Therefore, a prisoner might be said to
have exhausted a claim by raising it for the first time in his petition for certiorari
to the state’s highest court.

                                         -5-
the requirement.” Id. § 2254(b)(3). Defendant asserts that the State waived the

requirement by conceding exhaustion in its supplemental answer.

      The State’s supplemental answer to Defendant’s § 2254 application states:

“[The State] submits [Defendant] has exhausted his issues by bringing the claims

before the New Mexico state courts.” R., Vol. 1 pt. 3 at 462. Nevertheless, the

State argues on appeal that it did not waive the exhaustion requirement because

the quoted statement did “not establish the clarity of intent to waive exhaustion

that is required by 28 U.S.C. § 2254(b)(3).” Aplee. Br. at 12. It relies on an

unpublished opinion of another circuit, Dreher v. Pinchak, 61 F. App’x 800,

802–03 (3d Cir. 2003) (unpublished), which held that a state concession of

exhaustion in its answer to a § 2254 application was not an express waiver. But

the reasoning of that opinion was later rejected in a published opinion of that

circuit. See Sharrieff v. Cathel, 574 F.3d 225, 229 & n.5 (3d Cir. 2009). In any

event, Dreher is contrary to our precedent. In Gonzales v. McKune, 279 F.3d

922, 926 & n.8 (10th Cir. 2002) (en banc), we held that a state “expressly

waived” the exhaustion requirement when its answer to the habeas application

“admitted that petitioner has properly exhausted the issues now presented to this

Court.” (brackets and internal quotation marks omitted). The language used by

the State in this case is virtually the same as that recognized as an express waiver

in Gonzales. Moreover, there is additional evidence of waiver here. In its initial

answer and motion to dismiss, the State had requested dismissal without prejudice

                                         -6-
(for failure to exhaust) or, in the alternative, dismissal with prejudice; but its

supplemental answer requested only dismissal with prejudice, demonstrating that

the State was now asking for a decision on the merits and not a decision based

upon the exhaustion requirement.

      Because the State expressly waived the exhaustion requirement, the district

court erred in dismissing Defendant’s application without discussion of the

waiver. True, a court can consider exhaustion and dismiss unexhausted claims

sua sponte. See Fairchild v. Workman, 579 F.3d 1134, 1148 n.7 (10th Cir. 2009)

(court could consider exhaustion even though state had not explicitly argued it);

Williams v. Jones, 571 F.3d 1086, 1089 (10th Cir. 2009) (this court sua sponte

raised exhaustion despite state’s position that claims had been exhausted; after

deciding that claims had been exhausted, it did not consider whether state had

waived); see also Granberry v. Greer, 481 U.S. 129, 134 (1987) (court can sua

sponte consider exhaustion in “exceptional cases in which the State fails, whether

inadvertently or otherwise, to raise an arguably meritorious nonexhaustion

defense”). But it would be an “unusual step” for a court to dispose of a case on

exhaustion grounds sua sponte after the state has expressly waived an exhaustion

defense. Gonzales, 279 F.3d at 926. We have never decided what, if any,

circumstances would justify such a step. See Pike v. Guarino, 492 F.3d 61, 74

(1st Cir. 2007) (“A federal court may choose, in its sound discretion, to reject a

state’s waiver of . . . nonexhaustion . . . . In exercising this discretion, concerns

                                           -7-
of comity, federalism, and judicial economy weigh heavily in the balance.”). And

we do not do so now. The district court in the first instance should consider the

propriety of addressing exhaustion despite the State’s waiver.

III.   CONCLUSION

       We REVERSE the judgment of the district court and REMAND for

proceedings consistent with this order.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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