FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 16, 2016
                                       PUBLISH                Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



MICHAEL W. WOOD,

             Petitioner - Appellant,
                                                         No. 16-6067
       v.                                               (W.D. Okla.)
                                                 (D.C. No. 5:13-CV-00628-M)
TRACY MCCOLLUM, Warden,

             Respondent - Appellee.


                                       ORDER


Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.


MURPHY, Circuit Judge.


      Petitioner Michael W. Wood is an Oklahoma state prisoner. In 2010, Wood

pleaded guilty to first degree murder and was sentenced to life imprisonment

without the possibility of parole. After his conviction, Wood sought a writ of

certiorari from the Oklahoma Court of Criminal Appeals (“OCCA”), arguing he

should be permitted to withdraw his plea and proceed to trial. The OCCA denied

certiorari on November 29, 2012, rejecting all five of Wood’s arguments.

Although Wood did not seek post-conviction relief in Oklahoma state court, he

filed a federal application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
      Wood’s § 2254 application was referred to a federal magistrate judge who

prepared a Report and Recommendation (“R&R”). The R&R identified seven

grounds for relief in Wood’s habeas application, noting these claims were largely

duplicative of the ones Wood previously raised on direct appeal to the OCCA.

Wood’s claim the OCCA violated his due process and equal protection rights

(“Ground Six”), however, was unexhausted because Wood had not sought relief in

state court. See 28 U.S.C. § 2254(b)(1)(A) (requiring a petitioner in state custody

to first “exhaust[] the remedies available in the courts of the State” before filing a

federal habeas application).

      Respondent asked the district court to deny the unexhausted claim on the

merits. Wood asked the court to either dismiss Ground Six without prejudice or

to “retain jurisdiction” while he exhausted the claim in state court. The R&R

recommended (1) denying Wood’s request to stay the proceedings and hold the

§ 2254 application in abeyance while he exhausted his claim and (2) granting

Wood’s request to dismiss the claim without prejudice. The R&R recommended

denying the remainder of Wood’s claims on the merits. The district court entered

an order adopting the R&R, denying the habeas application with prejudice on the

merits with the exception of Ground Six which was dismissed without prejudice

for failure to exhaust available state remedies.

      Wood does not contest that Ground Six is currently unexhausted, rendering

his § 2254 petition a “mixed petition” containing both exhausted and unexhausted

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claims. A district court confronted with a mixed petition may either “(1) dismiss

the entire petition without prejudice in order to permit exhaustion of state

remedies, or (2) deny the entire petition on the merits.” Moore v. Schoeman, 

, 1235 (10th Cir. 2002). The court may also permit the petitioner to

delete the unexhausted claim from his petition and proceed only on the exhausted

claims, Rose v. Lundy, 

, 510 (1982), or, if the equities favor such an

approach, it may stay the federal habeas petition and hold it in abeyance while the

petitioner returns to state court to exhaust the previously unexhausted claims,

Rhines v. Weber, 

, 279 (2005).

      In this matter, the district court disposed of Wood’s § 2254 petition by

denying all claims but one on the merits and dismissing the remaining claim

without prejudice. This approach to a mixed petition is specifically foreclosed by

our precedent. 

. A district court may not dispose of a

mixed petition in a hybrid fashion by adjudicating the exhausted claims on the

merits and dismissing the unexhausted claim(s) without prejudice. 

(reversing a hybrid dismissal).

      On July 7, 2016, we issued an order to show cause why this court should

not summarily reverse the district court’s hybrid dismissal of Wood’s § 2254

petition, and remand the matter for a disposition consistent with our precedent.

On July 14, 2016, Respondent filed its response to our order to show cause,

acknowledging the district court’s hybrid dismissal should be reversed and this

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matter should be remanded under the reasoning in Moore. Wood filed his

response on July 25, 2016, asserting he has no objection to applying the “ruling

and/or reasoning” in Moore to his mixed petition. 1

      Based on the foregoing, we reverse the district court’s hybrid dismissal of

Wood’s § 2254 petition, and remand to the district court with instructions to

vacate its judgment and dispose of Wood’s petition in a manner consistent with

Moore.




      1
          Wood’s motion to proceed in forma pauperis is granted.

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