986 F. 2d 1427 - Gourley v. Cline

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This matter is before the court on Petitioner's application for a certificate of probable cause and request for leave to proceed in forma pauperis. We issue a certificate of probable cause, grant Petitioner's request to proceed in forma pauperis, and proceed to the merits of the petition.

A review of the record suggests Petitioner has filed a mixed petition of exhausted and unexhausted claims. The petition asserts several claims including various allegations of prosecutorial misconduct. It appears that Petitioner has alleged a new variation of prosecutorial misconduct for the first time in federal court without exhausting the claim in state proceedings.2 Petitioner alleges the prosecutor improperly referred to his failure to testify at trial. Although this allegation appears in the petition that was filed in the federal district court, the court's order does not address the issue. A review of the record before us suggests petitioner may not have raised this issue in state proceedings.

Because the federal courts are barred from addressing mixed petitions, see Jones v. Hess, 681 F.2d 688, 693-95 (10th Cir.1982), a remand to the district court is necessary to determine whether petitioner's claim that the prosecutor commented on his failure to testify is unexhausted. In the event the district court concludes the claim is in fact unexhausted, Petitioner shall be given the opportunity to amend his petition or have it dismissed and exhaust the claim in state court. Id. at 965.

We note that the State of Kansas has declined to assist the court in this case by choosing not to file a brief addressing Mr. Gourley's petition.

The matter is REMANDED.