645 F. App'x 624
10th Cir.
2016

Ronald A. GRAY, Petitioner-Appellant, v. James GRAY, Colonel, United States Army Commandant, USDA-Fort Leavenworth, Respondent-Appellee.

No. 16-3038

United States Court of Appeals, Tenth Circuit.

April 8, 2016.

624 F. App‘x 624

Thomas J. Bath, Jr., Esq., Bath & Edmonds, P.A., Overland Park, KS, Shawn Nolan, Federal Community Defender Office, Philadelphia, PA, for Petitioner-Appellant. Derrick W. Grace, United States Legal Services Agency, Fort Belvoir, VA, Thomas G. Luedke, Office of the United States Attorney, Topeka, KS, for Respondent-Appellee. Before TYMKOVICH, Chief Judge, and BRISCOE, and McHUGH, Circuit Judges.

find it debatable whether the petition states a valid claim of the denial of a constitutional right,” he or she must also show that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.; accord Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir.2007); see Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (“If the application was denied on procedural grounds, the applicant faces a double hurdle.“).

The district court dismissed without prejudice Mr. Luevano‘s case for failure to comply with two orders-entered at its behest by the magistrate judge-to cure filing deficiencies by using court-approved forms. “Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action if the plaintiff fails ‘to comply with any order of court.‘” Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (quoting Fed.R.Civ.P. 41(b)); see Brown v. Beck, 203 Fed.Appx. 907, 909 (10th Cir.2006) (unpublished) (“The district court can, under Fed.R.Civ.P. 41(b), dismiss an action because the plaintiff fails to comply with a court order.” (footnote omitted)). “When dismissing a case without prejudice, ‘a district court may, without abusing its discretion, enter such an order without attention to any particular procedures.‘” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir.2009) (quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir.2007)).

Mr. Luevano has not made a sufficient showing to warrant granting a COA. Nowhere in his brief does he address the fact that the magistrate judge twice ordered him to file his action on court-approved forms, nor does he respond to the district court‘s subsequent dismissal of his action for his failure to use these forms. In particular, Mr. Luevano does not attempt to excuse his failure to use the forms or explain why (for example) it was impossible to do so. Instead, Mr. Luevano focuses on restating his primary request for relief that he made before the district court-specifically, that former Secretary of State Hillary Clinton be required to take a polygraph test.

Accordingly, we have no difficulty concluding that reasonable jurists could not debate whether the district court‘s dismissal of Mr. Luevano‘s petition under Rule 41(b) was correct. We therefore deny Mr. Luevano‘s request for a COA. We also deny his motion to proceed IFP because Mr. Luevano has not made a “reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir.2008) (quoting McIntosh v. U.S. Parole Comm‘n, 115 F.3d 809, 812 (10th Cir.1997)).

II

For the foregoing reasons, we DENY Mr. Luevano‘s request for a COA, DISMISS the appeal, and DENY Mr. Luevano‘s motion to proceed IFP on appeal.

ORDER AND JUDGMENT *

PER CURIAM.

Petitioner Ronald A. Gray is a military prisoner convicted of multiple murders and related sexual offenses for which he has been sentenced to death. He appeals from the district court‘s dismissal of his habeas petition under 28 U.S.C. § 2241, which was dismissed in part with prejudice on the merits and in part without prejudice for failure to exhaust available military remedies.

On March 3, 2016, we issued an order to show cause why this court should not summarily reverse the district court‘s hybrid dismissal of Gray‘s § 2241 petition, and remand for adoption of one of the alternative dispositions set forth in our order to show cause. On March 24, 2016, the parties filed a joint response to our order to show cause, in which they acknowledge that the district court‘s hybrid dismissal should be reversed and this matter should be remanded.

As an initial matter, we note that the dismissal of some of Gray‘s claims without prejudice does not undermine this court‘s jurisdiction, because the operative defect (lack of exhaustion) cannot be cured by amendment and the resultant dismissal effectively excludes Gray from federal court under present circumstances. See B. Willis, C.P.A. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 n. 15 (10th Cir.2008) (explaining when dismissal of claim without prejudice does not negate finality of disposition); see also Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir.2002) (exercising appellate jurisdiction over functionally identical dismissal of habeas petition). In that regard, it is clear that we have jurisdiction to summarily reverse and remand as set forth below.

A prisoner challenging a court martial conviction through 28 U.S.C. § 2241 must exhaust all available military remedies. Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir.1991) (following Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). In this case, the district court determined that several of Gray‘s claims were unexhausted-claims he had tried to put before the military courts through an extraordinary coram nobis procedure that they deemed inapt when a federal habeas remedy appeared available. Believing the military courts would now consider the claims if it were made clear that habeas review would be withheld until they did so, the district court dismissed the claims without prejudice while it rejected the rest of the petition on the merits.

The general rules for handling habeas petitions containing a mix of exhausted and unexhausted claims are well-settled. Faced with such a “mixed petition,” a district court has several options: (1) dismiss the entire petition without prejudice to refiling after the petitioner either exhausts all claims or resubmits the petition to proceed solely on the exhausted claims, see Moore, 288 F.3d at 1233 (discussing Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)); (2) deny the entire petition with prejudice if the unexhausted claims are clearly meritless, see id. at 1234 (discussing Granberry v. Greer, 481 U.S. 129, 135, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)); (3) apply an “anticipatory procedural bar” to the unexhausted claims and deny them with prejudice if the petitioner would now be procedurally barred from exhausting them in state (or, as here, military) court and cannot demonstrate cause and prejudice to excuse the procedural default, see id. at 1233 n. 3; see also Roberts v. Callahan, 321 F.3d 994, 995, 997-98 (10th Cir.2003) (noting same procedural-bar and cause-and-prejudice principles in habeas review of court martial conviction); or (4) retain jurisdiction but abate the habeas proceeding to allow the petitioner to exhaust all unexhausted claims, see Rhines v. Weber, 544 U.S. 269, 273-79, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The one thing the district court may not do is effect a hybrid disposition of the petition, dismissing with prejudice all exhausted claims and dismissing without prejudice the unexhausted claims. See Moore, 288 F.3d at 1235-36 (reversing hybrid dismissal and remanding for further proceedings consistent with the above principles); see also Banks v. United States, 431 Fed.Appx. 755, 757 (10th Cir.2011) (noting same principles in habeas review of military conviction).

Based on the foregoing, we REVERSE the district court‘s hybrid dismissal of Gray‘s habeas petition, and REMAND to the district court with instructions to vacate its judgment and adopt one of the alternative dispositions set forth above.

The Clerk of Court shall issue the mandate forthwith.

*

Notes

*
After examining the appellate record, this panel has determined unanimously that oral argument would not materially assist in 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.
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