                  UNITED STATES COURT OF APPEALS

                             TENTH CIRCUIT
                        __________________________

 MARK FRANCIS CARRIER,

       Petitioner-Appellant,

 v.                                                    No. 99-1137
                                                         (D. Colo.)
 RICHARD MARR; KEN SALAZAR,                        (D.Ct. No. 96-D-1419)
 Attorney General of Colorado,

       Respondents-Appellees.
                     ____________________________

                                       ORDER
                               Filed December 27, 1999


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      This matter is before the court on appellant’s motion to delete footnote

number three from the order and judgment filed on December 20, 1999. The

motion is granted. A copy of the revised order and judgment is attached.

                                       Entered for the Court
                                       Patrick Fisher, Clerk of Court

                                             By:

                                                   Keith Nelson
                                                   Deputy Clerk
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                     UNITED STATES COURT OF APPEALS                        DEC 20 1999

                                TENTH CIRCUIT                         PATRICK FISHER
                           __________________________                          Clerk


 MARK FRANCIS CARRIER,

          Petitioner-Appellant,

 v.                                                       No. 99-1137
                                                            (D. Colo.)
 RICHARD MARR; KEN SALAZAR,                           (D.Ct. No. 96-D-1419)
 Attorney General of Colorado,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.


      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. The 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.
       Appellant Mark Francis Carrier appeals the district court’s decision

dismissing his petition, filed pursuant to 28 U.S.C. § 2254, as a “mixed petition.”

We grant Mr. Carrier a certificate of appealability 1 and remand his petition to the

district court for further determination.



       Mr. Carrier is serving sentences for two counts of attempted second degree

murder and crime of violence following the stabbing of his wife and her father.

People v. Carrier, 791 P.2d at 1204, 1205 (Colo. Ct. App. 1990). Mr. Carrier

unsuccessfully challenged his state convictions in a state direct appeal and state

post-conviction proceeding. In both proceedings, the Colorado Court of Appeals

affirmed his convictions and the Colorado Supreme Court denied certiorari

review.



       Mr. Carrier then filed his federal habeas corpus petition raising four issues,

including claims of: (1) prosecutorial misconduct and (2) denial of due process

through admission of testimony concerning his alleged prior threats and assaults

on his wife. The magistrate judge recommended dismissal of all of his claims as



       1
        We construe the appeal as Mr. Carrier’s request to this court for a certificate of
appealability. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997),
overruled on other grounds, United States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997).


                                            -2-
unexhausted, finding Mr. Carrier did not raise his federal constitutional claims in

the state courts. Prior to the district court’s disposition, Mr. Carrier moved for

voluntary dismissal of two of his claims, leaving for the district court’s

disposition only his claims of prosecutorial misconduct and denial of due process

in admission of testimony on his prior abuse and assault. The district court

granted his motion and issued a decision dismissing his petition without

prejudice, finding it a “mixed petition, [which] contains both an exhausted and an

unexhausted claim.



      Specifically, the district court determined the magistrate judge erred in

finding Mr. Carrier failed to exhaust his state remedies on his claim the court

denied him due process by admitting testimony on his prior abuse and assault of

his wife. Having found Mr. Carrier exhausted this claim, the district court

nevertheless agreed with the magistrate judge that he failed to exhaust his state

remedies with respect to his prosecutorial misconduct claim. Using similar

reasoning as the magistrate judge, the district court determined that while Mr.

Carrier raised his prosecutorial misconduct claim before the state court, he failed

to allege violation of his federal constitutional due process rights with respect to

this claim. While Mr. Carrier quoted the general standards for prosecutorial

misconduct, contained in Berger v. United States, 295 U.S. 78, 88 (1935), the


                                          -3-
district court determined the Berger language did not set forth any principles of

federal constitutional law, but merely articulated the principle that prosecutors are

obliged to seek justice and not use improper means to obtain convictions.

Accordingly, the district court held Mr. Carrier failed to explicitly mention any

violation of his due process rights as to this issue, or otherwise alert the state

court of his federal constitutional claim. In so holding, the district court reasoned

that Mr. Carrier’s reposturing of his prosecutorial misconduct claim in federal

court as a federal constitutional claim did not cure the error of failing to present

that claim to the state court.



      On appeal, Mr. Carrier sets forth an exhaustive discussion renewing his

argument his quotation from the Berger case on prosecutorial misconduct

sufficiently alerted the state court of his federal constitutional claim.

Specifically, he argues his reference to Berger should have fully informed the

state court of his federal due process claim because: (1) other courts have used

Berger in the context of federal constitutional prosecutorial misconduct cases; 2

and (2) he advised the state court the prosecutor’s misconduct denied him a fair

trial. Alternatively, for the first time on appeal, he contends he exhausted his


      2
        We note the cases on which Mr. Carrier rely are inapposite or constitute
nonbinding, nonprecedential authority.


                                           -4-
prosecutorial misconduct claim because Colorado’s standard of review on direct

appeal is nearly the same as federal constitutional standard of review for such

claims. Mr. Carrier also argues the merits of his prosecutorial misconduct claim

on appeal.



      We review the legal basis for the district court’s dismissal of Mr. Carrier’s

§ 2254 petition de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.

1999), petition for cert. filed (U.S. Nov. 5, 1999) (No. 99-6954). A district court

must dismiss “mixed petitions” containing both exhausted and unexhausted

claims. Rose v. Lundy, 455 U.S. 509, 510 (1982). To exhaust his state remedies,

Mr. Carrier must have fairly presented his federal claim to the state courts. See

Picard v. Connor, 404 U.S. 270, 275 (1971). Exhaustion is not satisfied by

“raising one claim in the state courts and another in the federal courts.” Id. at

276. If Mr. Carrier wishes to claim a state’s ruling denied him of due process of

law guaranteed by the Fourteenth Amendment, he must state so “not only in

federal court, but in state court.” See Duncan v. Henry, 513 U.S. 364, 366

(1995).




                                          -5-
      In this case, after the jury adjourned, Mr. Carrier’s attorney asked for a

curative jury instruction and “mistrial” based on the prosecutor’s closing remarks

during the trial. The trial court denied his request. Mr. Carrier next raised the

issue of “prosecutor misconduct” in his petition for writ of certiorari to the

Colorado Supreme Court in his post-conviction appeal. In his discussion on

prosecutorial misconduct, he not only referred to the elements of prosecutorial

misconduct contained in the Berger case, 3 but more importantly ended by stating

the prosecutor’s improper comments “affected the fairness of the trial.” No



      3
          Specifically, Mr. Carrier recited the following language from Berger:

              The United States Attorney is the representative not of an ordinary
      party to a controversy, but of a sovereignty whose obligation to govern
      impartially is as compelling as its obligation to govern at all; and whose
      interest, therefore, in a criminal prosecution is not that it shall win a case,
      but that justice shall be done. As such, he is in a peculiar and very definite
      sense the servant of the law, the twofold aim of which is that guilt shall not
      escape or innocence suffer. He may prosecute with earnestness and vigor –
      indeed, he should do so. But, while he may strike hard blows, he is not at
      liberty to strike foul ones. It is as much his duty to refrain from improper
      methods calculated to produce a wrongful conviction as it is to use every
      legitimate means to bring about a just one.

              ....

             [I]mproper suggestions, insinuations, and, especially, assertions of personal
      knowledge are apt to carry much weight against the accused when they should
      properly carry none.

Berger, 295 U.S. at 88.


                                            -6-
matter how inartfully pleaded, we believe, under these particular facts, Mr.

Carrier sufficiently alerted the state court of his federal constitutional due process

claim. Thus, we must disagree with the district court’s conclusion Mr. Carrier did

not present his federal claim to the state court for the purposes of exhaustion.

Having found Mr. Carrier exhausted his prosecutorial misconduct claim, we

decline to address his argument concerning the similarity of Colorado’s standard

of review on direct appeal to the federal constitutional standard of review for

such claims, or consider the merits of his claims prior to a determination by the

district court.



       Because Mr. Carrier exhausted his two claims before the state court and

therefore, his petition is not a “mixed” petition, we grant Mr. Carrier a certificate

of appealability and REMAND his petition to the district court for further

determination.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                          -7-
