64 F3d 669 Davis v. Stotts

64 F.3d 669

Mitchell D. DAVIS, Petitioner-Appellant,
v.
Gary STOTTS and Attorney General of Kansas, Respondents-Appellees.

No. 95-3163.
(D.C.No. 94-CV-3344)

United States Court of Appeals, Tenth Circuit.

Aug. 23, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before TACHA, LOGAN and KELLY, Circuit Judges.2

ORDER AND JUDGMENT1

1

Mr. Davis, a state inmate appearing pro se, seeks leave to proceed on appeal without prepayment of costs or fees and a certificate of probable cause so that he may appeal the merits dismissal of his habeas action, 28 U.S.C. 2254, which occurred on May 11, 1995. In reviewing the record on appeal, we note that on April 28, 1995, Mr. Davis filed a motion to stay his federal habeas action pending resolution of his state habeas petition filed April 21, 1995. Apparently, that motion was not ruled upon. In light of the potential barriers created by a federal disposition of some, but not all grounds a habeas petitioner would like to raise, we feel that the proper exercise of discretion requires that the state habeas petition be allowed to proceed prior to any federal disposition of the matter. See Clark v. Tansy, 13 F.3d 1407 (10th Cir.1993). Accordingly, the district court's judgment is VACATED, and upon REMAND the district court may decide whether to stay the action pending resolution of the state habeas action, or dismiss the action without prejudice.

2

It is so ordered.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order. 151 F.R.D. 470 (10th Cir.1993)

2

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 cause therefore is ordered submitted without oral argument