                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      August 11, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                        No. 06-6068
 v.                                              (D.C. No. 06-CV -00005-L)
                                                 (D.C. No. 04-CR-00090-L)
 M ERL W ILLIA M HICKM AN, SR.,                         (W .D. Okla.)

       Defendant - Appellant.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Defendant-Appellant M erl W illiam Hickman, Sr., a federal inmate

proceeding pro se, seeks a certificate of appealability (“COA”) to appeal from the

district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence (submitted for filing on December 27, 2005). M r. Hickman pled

guilty to money laundering, 18 U.S.C. § 1957, and was sentenced to 97 months on

November 22, 2004. Shortly thereafter, he pled guilty in state court to sixteen

counts of obtaining money by false pretenses and received a sentence on

December 27, 2004, of ten years on each count, to run consecutive to one another

and consecutive to the federal sentence. Because we determine that M r. Hickman

has not made a “substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we deny a

COA and dismiss the appeal.

      In his motion, M r. Hickman attacked his state sentence. The district court

concluded that it would not stay the matter and hold it in abeyance even if it were

to construe the § 2255 motion as a § 2254 petition attacking the state convictions.

After considering the factors in Rhines v. W eber, 544 U.S. 269, 277-78 (2005),

the district court determined that the state claims had not been exhausted, and

were either not cognizable in habeas or not sufficiently meritorious to warrant a

stay. The district court did not pass on the diligence of M r. Hickm an. Thereafter,

the district court declined to treat the motion under § 2254, and denied it pursuant

to § 2255 because it did not challenge the federal sentence.

      W e think it is apparent that the motion is seeking § 2254 relief and should

be recharacterized to correspond w ith its substance. See Castro v. United States,

540 U.S. 375, 381-82 (2003). On appeal, M r. Hickman maintains that he filed a

motion for appointment of counsel on appeal with the state, which he claims was

ignored. He contends that he tried to exhaust his state remedies, but then went to

the next level, federal court. He also argues the merits of his claims relating to

his state sentence.

      Rhines dealt with mixed petitions. Traditionally, when a petition contains

entirely unexhausted state claims, the petition would be dismissed without

prejudice. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). It is

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theoretically true that a federal habeas court could deny a petition containing

totally unexhausted claims. 28 U.S.C. § 2254(b)(1)(A). However, stay and

abeyance of totally unexhausted petitions increases the temptation to decide

unexhausted claims and decreases the incentive to exhaust first. See Rhines, 544

U.S. at 277; Rose v. Lundy, 455 U.S. 509, 519 (1982). W e need not decide

whether the procedure in Rhines applies to totally unexhausted petitions. If

Rhines applies, the district court certainly did not abuse its discretion in declining

to stay this matter given the nature of the claims. Regardless, given that the

claims are entirely unexhausted, the § 2254 petition should be dismissed without

prejudice. W e order the district court to amend its order to recharacterize the

§ 2255 motion as a § 2254 petition and dismiss it without prejudice. 1

      W e DENY the COA, GRANT M r. Hickman’s request to proceed IFP, and

DISM ISS the appeal.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
         W e recognize that a subsequent § 2254 motion probably will be time
barred, but do not pass on that issue.

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