Cagle v. Champion

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 24 1997 TENTH CIRCUIT PATRICK FISHER Clerk

JAMES E. CAGLE,

Petitioner-Appellant,

v. No. 96-7109 (D.C. No. 96-CV-12) RON CHAMPION; ATTORNEY (E.D. Okla.) GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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 10th Cir. R. 36.3. Mr. James E. Cagle appeals the district court's dismissal of his petition for

a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1994).

On October 31, 1995, Mr. Cagle filed a petition for a writ of habeas corpus

raising numerous challenges to his convictions in the District Court of Seminole

County for conspiracy and first degree murder. On August 23, 1996, the district

court issued an minute order dismissing Mr. Cagle's petition solely on the basis

that he "ha[d] a pending case in th[e] court attacking the same conviction."

On appeal, Mr. Cagle contends the district court denied him due process of

law by granting respondents an extension of time in which to respond to his

petition and by dismissing his petition based on a pending petition attacking the

same convictions. Mr. Cagle asserts he is not attacking his convictions in both

petitions, rather he is appealing from rulings or orders issued in two different

courts.

Unfortunately, we cannot review Mr. Cagle's contentions. The district

court's cursory dismissal of Mr. Cagle's petition has left us without the necessary

findings and reasoning to conduct a meaningful review of Mr. Cagle's contentions

on appeal. See Joseph A. by Wolfe v. New Mexico Dep’t of Human Servs., 69

-2- F.3d 1081, 1089 (10th Cir. 1995) (remanded for necessary findings to facilitate

appellate review), cert. denied, 116 S. Ct. 1678 (1996); ARW Exploration Corp. v.

Aguirre, 45 F.3d 1455, 1459 (10th Cir. 1995) (appellate review impossible

without anything in the record to indicate how the district court made it’s

determination). Based on the district court's minute order and the record on

appeal, we cannot discern whether Mr. Cagle's October 31, 1995, petition is a

successive petition to the "pending case" in the district court subject to dismissal

pursuant to 28 U.S.C. § 2244(b) or is in fact a new petition challenging separate

convictions from a different court, as Mr. Cagle contends. 1

Accordingly, we VACATE the judgment of the district court dismissing

Mr. Cagle's October 31, 1995, petition and REMAND to the district court for

further proceedings consistent with this opinion. Additionally, all other pending

motions are DENIED.

Entered for the Court

WADE BRORBY United States Circuit Judge

1 If the district court finds Mr. Cagle's petition is a second successive petition under 28 U.S.C. § 2244(b) and it is without the proper authorization from this court under 28 U.S.C. § 2244(b)(3), the district court should transfer the petition to this court pursuant to 28 U.S.C. § 1631 and Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997).

-3-