FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 19, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court GREGORY M. HAWES,

Petitioner - Appellant,

v. No. 18-8013 (D.C. No. 1:17-CV-00052-ABJ) MICHAEL PACHECO, Warden, (D. Wyo.) Wyoming State Penitentiary; WYOMING ATTORNEY GENERAL,

Respondents - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, KELLY, and O’BRIEN, Circuit Judges. _________________________________

Gregory M. Hawes filed a 28 U.S.C. § 2254 application challenging his

Wyoming conviction for kidnaping. The district court dismissed one claim without

prejudice for failure to exhaust and denied the other claims on the merits. This court

granted a limited certificate of appealability concerning this hybrid disposition of a

mixed § 2254 application and ordered the parties to address the proper remedy.

* After examining the briefs and 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Both parties have responded, and Mr. Hawes has replied to the government’s

response. Mr. Hawes suggests that, notwithstanding the hybrid disposition, this court

should take jurisdiction and rule on the merits of his claims, including the

unexhausted claim. But in these circumstances, we cannot consider the merits of the

habeas claims. In both Wood v. McCollum, 833 F.3d 1272, 1274 (10th Cir. 2016),

and Moore v. Schoeman, 288 F.3d 1231, 1232, 1236 (10th Cir. 2002), we held that

when a district court improperly dismisses unexhausted claims while ruling on the

merits of exhausted claims, we must reverse and remand for the district court to

decide the application in accordance with the precedents regarding mixed habeas

applications. Recognizing that we are bound by Wood and Moore, the government

acknowledges that the district court’s decision is improper and concedes that the

matter should be remanded for further proceedings.

As we did in Wood, we reverse the district court’s hybrid disposition of the

§ 2254 application and remand to the district court with instructions to vacate its

judgment and dispose of Mr. Hawes’ petition in a manner consistent with Moore.

Mr. Hawes’ motions to supplement the record dated August 31, 2018, and September

7, 2018, are denied, and his other pending motions are denied as moot.

Entered for the Court

Allison H. Eid Circuit Judge

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