                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               AUG 16 1999
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 WALTER BANKS,

          Petitioner - Appellant,
 v.
                                                           No. 98-5032
                                                    (D.C. No. 95-CV-1074-K)
 RONALD J. CHAMPION, sued as:
                                                  (Northern District of Oklahoma)
 Ron Champion; ATTORNEY
 GENERAL OF THE STATE OF OKL,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, MAGILL ** and LUCERO, Circuit Judges.



      Walter Banks appeals the dismissal of his 28 U.S.C. § 2254 petition,

challenging his conviction for first degree murder. The district court dismissed

the petition without prejudice for failure to exhaust state remedies. We dismiss

Banks’s appeal as moot.

                                            I

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.

       The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of
      **

Appeals for the Eighth Circuit, sitting by designation.
       On February 21, 1981, an Oklahoma state court jury convicted appellant

Walter Banks and his older brother, Anthony Banks, of first degree murder. The

court sentenced Anthony to death and Walter (“Banks”) to life imprisonment. See

Banks v. State, 728 P.2d 497, 499 (Okla. Crim. App. 1986). The conviction was

affirmed on appeal. See id. at 503. In September 1994, Banks unsuccessfully

sought state post-conviction relief, alleging that trial and appellate counsel

rendered ineffective assistance and that the state failed to disclose exculpatory

evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). 1

       Banks subsequently filed a petition with the Oklahoma Court of Criminal

Appeals, challenging the trial court’s denial of his application for post-conviction

relief. According to prison logs, Banks mailed his petition on January 20, 1995,

the filing deadline. The Oklahoma Court of Criminal Appeals dismissed the

petition as untimely, however, because it considered February 16, 1995, the date

the Clerk of Court received the filing fee and docketed the petition, to be the date

the petition was filed.


       1
        Banks’s claims were based on the post-conviction history of his brother Anthony
who, after unsuccessfully seeking state post-conviction relief, filed a habeas petition in
federal district court claiming ineffective assistance of counsel and a Brady violation.
The district court granted Anthony’s petition and we affirmed, holding that the
prosecution committed a Brady violation by failing to disclose evidence suggesting that
the murder with which the brothers were charged was committed by others, and that
Anthony received constitutionally ineffective assistance because counsel had failed to
raise the Brady issue on direct appeal. See Banks v. Reynolds, 54 F.3d 1508 (10th Cir.
1995).

                                            -2-
      On October 26, 1995, Banks sought federal habeas relief, arguing that

because he and his brother were subject to the same circumstances at trial, he was

entitled to the same habeas relief his brother received based on his Brady

violation and ineffective assistance of counsel claims. See supra n.1. The district

court first sought to determine whether Banks had exhausted available state

remedies as required by 28 U.S.C. § 2254(b) and (c), and found that although

Banks had attempted to exhaust state remedies, the state appellate court had

effectively imposed a procedural bar on his claims by dismissing his petition.

Finding independent and adequate state grounds for application of the procedural

bar rule against Banks, the district court then determined whether Banks had

demonstrated cause and actual prejudice, pursuant to Coleman v. Thompson, 501

U.S. 722, 724 (1991), to overcome his procedural default.

      Relying, in part, on Woody v. State, 833 P.2d 257 (Okla. 1992), and

applying the “mailbox rule,” see Houston v. Lack, 487 U.S. 266, 270 (1988), the

district court concluded that because Banks had placed his petition in the prison

mailbox on January 20, 1995, the filing date, he had demonstrated cause for his

“untimely” filing. The district court also found that Banks had demonstrated

actual prejudice because his ineffective assistance of counsel and Brady violations

claims would have been reviewed on the merits if the state appellate court had not

dismissed his petition as untimely.


                                         -3-
      The district court thus ordered Oklahoma to grant appellate review to the

state district court’s denial of Banks’s application for post-conviction relief. To

ensure compliance with its order, the district court granted a conditional writ of

habeas corpus to be issued unless Oklahoma granted Banks an appeal out of time.

The state thereupon filed a motion requesting the Oklahoma Court of Criminal

Appeals to grant Banks a post-conviction appeal out of time. Rejecting the

district court’s reliance on the mailbox rule, the Court of Criminal Appeals denied

the motion but noted that under Oklahoma Court Rules, Banks could request an

appeal out of time in Tulsa County District Court. See Banks v. State, 953 P.2d

344, 347 (Okla. Crim. App. 1998). Based on this decision, the Oklahoma

Attorney General’s office filed a motion asking the federal district court to

reconsider its order granting a conditional writ of habeas corpus. Concluding that

Oklahoma court rules allowed Banks to file an application for post-conviction

relief out of time, the district court withdrew its earlier decision, granted the

State’s motion and dismissed Banks’s habeas petition without prejudice for

failure to exhaust state remedies.

      Banks then filed an application for post-conviction appeal out of time in the

state district court. While a decision on his application was pending, Banks

obtained a certificate of probable cause from the district court to appeal the

dismissal of his habeas petition. We granted him leave to proceed in forma


                                          -4-
pauperis on appeal, ordered that counsel be appointed to represent his interests,

and requested supplemental briefing from the parties on the exhaustion issue.

Before the parties submitted their briefs on the exhaustion issue, however, the

state trial court denied Banks’s application for post-conviction appeal out of time,

and the Oklahoma Court of Criminal Appeals affirmed.

                                          II

      “This court will dismiss an appeal as moot, when pending an appeal from

the judgment of a lower court, . . . an event occurs which renders it impossible

. . . to grant [the appellant] any effectual relief whatever.” In re Material

Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir. 1996) (internal quotation

omitted). In Odum v. Boone, 62 F.3d 327 (10th Cir. 1995), we applied this rule

within the context of a challenge to the dismissal of a habeas petition for failure

to exhaust state remedies. There, the district court dismissed Odum’s petition for

federal habeas relief because he had failed to exhaust state remedies. Having

exhausted state remedies, Odum filed a second habeas petition which the district

court also denied. On appeal, he argued that the district court abused its

discretion in dismissing his first petition for failure to exhaust. Declining to

reach the exhaustion issue, we held that “it is irrelevant whether dismissal of

[Odum’s] first petition was correct; that issue is now moot because all of the

previously unexhausted claims are now exhausted.” Id. at 333.


                                         -5-
      In the case now before us, the district court dismissed Banks’s petition for

failure to exhaust state remedies because it concluded that under state rules, he

could file an application for post-conviction relief out of time. Banks thereupon

filed such an application, which the state court denied while his appeal of the

district court’s dismissal of his petition was pending. Were we to consider the

exhaustion issue and hold that exhaustion was required, we would be affirming

the district court’s findings, thereby affording Banks no relief. If, however, we

were to conclude that exhaustion was not required, we would similarly be

affording Banks no relief as he has completed the exhaustion process.

      This order does not address the merits of Banks’s habeas petition. The

district court dismissed the petition without prejudice for failure to exhaust state

remedies. The state courts’s denial of Banks’ application for post-conviction

relief while his appeal was pending in this court has rendered the exhaustion issue

moot, and we DISMISS this appeal.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -6-
