Harris v. Champion

¶5EBEL, Circuit Judge.

¶6On September 8, 1993, petitioner filed the present appeal from the district court’s order *1127of August 10,1993, denying petitioner habeas relief on his claim that his due process rights were violated by delays in adjudicating his direct criminal appeal in Oklahoma state court.1 At the time the district court entered its August 10 order, additional habeas claims of petitioner were still pending before the district court. In disposing of this appeal, we take judicial notice that a new district court judge was assigned to the case after the August 10 order was entered, and that the new judge entered an order on March 29, 1994, dismissing petitioner’s remaining habe-as claims for failure to exhaust. Petitioner has not appealed the entry of that order to date.

¶7In light of the district court’s ruling of March 29, it appears that petitioner’s habeas petition presented both exhausted and unexhausted claims. The Supreme Court has held that “a district, court must dismiss habeas petitions containing both unexhausted and exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Therefore, rather than addressing the merits of plaintiffs exhausted due process claim arising from delay in adjudicating his direct criminal appeal, the district court should have either dismissed that claim, along with the unexhausted claims, or given petitioner an opportunity to resubmit his habeas petition raising only the exhausted claim. See id. at 520, 102 S.Ct. at 1204. We note that the district court has already addressed the third alternative, which involves considering whether petitioner’s claims would be procedurally barred if he returned to state court and, if so, determining whether petitioner can show cause and prejudice to avoid the procedural bar. See Coleman v. Thompson, 501 U.S. 722, 735 n.*, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991); Harris v. Champion, Nos. 90-C — 448-E & 90-C-475-E, Order of March 29,1994, at 10-12 (N.D.Okla.1994) (unpublished order).

¶8We therefore VACATE the judgment of the United States District Court for the Northern District of Oklahoma entered August 10, 1993, and REMAND the action to the district court with directions to determine the status of petitioner’s unexhausted claims and, if those claims remain unexhaust-ed, either to dismiss petitioner’s due process claim relating to appellate delay or to permit petitioner to refile his habeas petition asserting only his exhausted claim.