                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 20 2002
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MATTHEW JAMES GRIFFIN,

              Petitioner-Appellant,

    v.                                                 No. 00-2347
                                             (D.C. No. CIV-97-1560-LH/JHG)
    TIM LEMASTER, Warden,                               (D. N.M.)
    New Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

              Respondents-Appellees.


    MATTHEW JAMES GRIFFIN,

              Petitioner-Appellant,

    v.
                                                       No. 01-2304
    TIM LEMASTER, Warden,                     (D.C. No. CIV-00-949-JP/RLP)
    New Mexico State Penitentiary;                      (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

              Respondents-Appellees.


                          ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the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.
Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.



       After examining the briefs and appellate records, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Petitioner, a former Albuquerque police officer, was convicted by a New

Mexico jury in 1991 of felony murder, aggravated burglary, five counts of armed

robbery, and tampering with evidence. Petitioner’s convictions were upheld on

direct appeal and in state collateral proceedings. His subsequent attempts to

secure federal habeas relief have followed a tortuous path. He currently seeks to

appeal the dismissal of two federal habeas petitions he filed pursuant to 28 U.S.C.

§ 2254.

       On December 8, 1997, petitioner filed a timely federal habeas petition

alleging nine grounds for relief. On June 12, 1998, after the State filed a motion

to dismiss, the district court appointed the Federal Public Defender for

New Mexico to represent petitioner and ordered the State to file all state court

records and to notify the court and petitioner when the record was filed.

Petitioner was given thirty days after the filing of the state court record to

respond to the State’s motion to dismiss. Shortly thereafter, the Federal Public

                                          -2-
Defender moved to withdraw due to a conflict of interest. The district court

granted the motion to withdraw and ordered that new counsel be appointed.

On July 9, 1998, attorney Allen Kerpan was appointed to represent petitioner.

On September 30, the State filed the state court record.   1



       By order entered January 5, 1999, the district court gave petitioner’s

counsel until February 5 to respond to the outstanding motion to dismiss. On

February 4, counsel filed a motion for extension of time seeking an additional

twenty days in which to respond to the motion to dismiss. Meanwhile, petitioner,

not having been able to contact his counsel for several weeks, and not knowing

that his counsel was going to seek an extension of time, filed a pro se response to

the motion to dismiss. This prompted petitioner’s counsel to write petitioner and

chastise him for filing pro se pleadings while being represented by counsel, and

prompted the government to move to strike the pro se pleading. The court

subsequently granted the motion to strike.

       On February 25, counsel filed a response to the motion to dismiss, which he

asked be substituted for petitioner’s pro se response. On May 3 the magistrate


1
       Petitioner contends that the record filed by the State is not complete
because it is missing a transcript of the hearing held by the state court in
post-conviction proceedings. Petitioner urged his counsel to bring this omission
to the attention of the district court, but counsel did not. Petitioner continues to
argue that, because he was not present at the hearing, he must be given an
opportunity to review the transcript in order to fully address the State’s arguments
against habeas relief.

                                            -3-
judge issued a report recommending that the motion to dismiss be denied, which

the district court later adopted. Meanwhile, however, the court set a briefing

schedule on the merits of the habeas petition giving petitioner until June 2 to file

an opening brief.

      On May 25, counsel for petitioner filed a motion for extension of time,

seeking an additional six months to file an opening brief. In his motion, counsel

said that petitioner wanted to participate in the strategy and drafting of the brief

and counsel was trying to negotiate this with him, that petitioner had been

transferred out of state and counsel was still trying to locate him, and that counsel

needed more time to review the voluminous state court record. By order of

June 1, the district court generously granted counsel the requested extension,

giving him until December 2 to file his opening brief.

      On November 4, however, counsel filed a motion to withdraw. Counsel

stated that he had been in the process of preparing the opening brief, but that

petitioner wanted to pursue a strategy with which counsel did not agree. Counsel

also said that petitioner had not responded to his last two letters. Counsel

therefore asked to withdraw on the ground that he and petitioner were unable to

agree on a common strategy. Alternatively, counsel asked to withdraw on the

ground that the representation would result in an unreasonable financial burden

on him if the court were to enforce the statutory cap for compensation under the


                                          -4-
Criminal Justice Act. Notably, counsel’s motion did not conform to the District

of New Mexico’s Local Civil Rule 83.8(b), which requires that the attorney serve

a copy of the motion to withdraw on his client and that he give notice in the

motion that the client has to file and serve any objection within fourteen days or

be deemed to have consented to the motion. Counsel did neither.

      By order entered November 10, the district court granted counsel’s motion

to withdraw, and ordered petitioner to proceed pro se. There is no indication in

the record, however, that this order was served on petitioner. Nothing further

transpired in the case until June 28, 2000, when the district court entered an order

sua sponte dismissing the case for failure to prosecute.

      On June 30, petitioner filed a second habeas petition that was virtually

identical to the first, which the district court docketed as a new case. On July 11,

petitioner filed a motion in the first action seeking to vacate the order of dismissal

and consolidate the two habeas actions.   2
                                               In his motion, petitioner said that he was

not served with a copy of his counsel’s motion to withdraw, but that he did learn

of the withdrawal by letter from counsel of December 13, 1999. Petitioner said

he assumed that when his counsel withdrew, the court would appoint new counsel

to represent him, as it had done when the Federal Public Defender withdrew.

Petitioner also stated that he was unaware that the court had ordered him to


2
      This motion qualified as a tolling motion under Fed. R. App. P. 4(a)(4).

                                              -5-
proceed pro se, because he never received a copy of the court’s November 10

order. Finally, petitioner said his transfer from New Mexico in May 1999

caused him to lose all his legal materials, which he was not able to recover until

January 2000. Petitioner noted that as soon as he learned of the court’s dismissal

of his habeas petition, he took immediate corrective action by refiling it. He

therefore asked that the court vacate its order of dismissal and consolidate the two

habeas petitions.

      The district court denied petitioner’s motion to vacate on September 8,

2000, stating only that “the motion is not well taken.” R., Vol. I, Doc. 41

(No. 00-2347). Thereafter, petitioner filed further objections with the district

court, to which he attached correspondence between himself and his attorney to

show his understanding of events. Petitioner objected to the manner in which his

counsel was permitted to withdraw without first giving him notice and an

opportunity to object. Petitioner also objected to the court’s dismissal of his

petition without prior notice, especially since he had not been served with a copy

of the court’s order directing him to proceed pro se and had previously been

chastised for filing a pleading pro se while being represented by counsel and had

the pleading stricken. Petitioner filed a timely appeal from the court’s dismissal

of his habeas petition and denial of his motion to vacate, which we docketed as

No. 00-2347.


                                         -6-
      Meanwhile, the district court went forward on petitioner’s second habeas

petition. The State moved to dismiss this petition, arguing that it was untimely

because it was filed beyond the one-year statute of limitations set forth in

28 U.S.C. § 2244(d). Petitioner filed motions seeking the appointment of counsel

and access to various legal materials, which the district court did not address.

Based on this court’s holding in   Petrick v. Martin , 236 F.3d 624, 629 (10th Cir.

2001), that the limitations period in § 2244(d)(2) is tolled during the pendency of

a federal habeas proceeding, the magistrate judge initially concluded that the

second petition was timely. After the Supreme Court effectively overruled

Petrick in Duncan v. Walker , 533 U.S. 167, ___, 121 S. Ct. 2120, 2129 (2001),

by holding that a federal habeas petition “is not an ‘application for State

post-conviction or other collateral review’” that will toll the statute of limitations

under § 2244(d)(2), the State renewed its motion to dismiss. The magistrate judge

agreed that the petition was untimely and recommended that it be dismissed.

      Petitioner filed timely objections to the magistrate judge’s report, arguing

that under the particular circumstances of his case, the court should toll the

statute of limitations. Among other things, petitioner noted that if the court did

not either treat his second petition as relating back to the filing date of his first

petition, or equitably toll the statute of limitations, then the dismissal of his first

petition would effectively be a dismissal with prejudice, because he could not


                                           -7-
possibly file another timely petition. The district court adopted the magistrate

judge’s recommendation and dismissed the petition as untimely without

addressing petitioner’s equitable tolling argument. Petitioner filed a timely

appeal, which we docketed as No. 01-2304.

       Because petitioner’s two appeals are closely related, we will consider them

together in the interests of judicial economy. Before petitioner may proceed in

either appeal, however, he must first obtain a certificate of appealability (“COA”)

from this court by making a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make this showing, petitioner must

demonstrate that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Where, as

here, the district court denies a habeas petition on procedural grounds without

reaching the underlying constitutional claims, the petitioner is not entitled to

a COA unless he can show both that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.”   Slack , 529 U.S. at 484.




                                            -8-
         Our review of the underlying merits of petitioner’s claims is necessarily

limited because petitioner’s actions were dismissed before he had an opportunity

to develop the factual and legal bases of his claims in the district court, the

district court did not rule on the merits of those claims, and the parties have not

briefed the merits on appeal. Therefore, “[w]e will only take a quick look at the

federal habeas petition[s] to determine whether [petitioner] has facially alleged

the denial of a constitutional right.”    Gibson v. Klinger , 232 F.3d 799, 803

(10th Cir. 2000) (quotations and original alterations omitted). After reviewing

the habeas petitions, we conclude that petitioner has satisfied the first prong of

the COA analysis, because “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right,”   Slack ,

529 U.S. at 484. Specifically, we conclude that at least one of petitioner’s claims,

which include that the evidence was insufficient to convict and that the jury

instructions erroneously shifted the burden to petitioner to disprove the existence

of a material element, debatably states a claim for the denial of a constitutional

right.

         We turn, then, to the second prong of the COA analysis, which concerns the

procedural issues raised by each appeal. In appeal No. 00-2347, petitioner raises

four procedural issues: whether the court erred in allowing petitioner’s counsel to

withdraw where the motion to withdraw and the order permitting withdrawal were


                                              -9-
not served on petitioner; whether the court erred in dismissing the action as a

sanction for petitioner’s failure to prosecute where the order directing petitioner

to proceed pro se was not served on petitioner; whether the court erred in denying

petitioner’s motion to vacate the dismissal and consolidate the two habeas

actions; and whether the district court should have tolled the limitations period

during the pendency of petitioner’s first federal habeas petition. In appeal

No. 01-2304, petitioner raises the same four issues, as well as two other similar

issues: whether petitioner adequately complied with the statute of limitations in

§ 2244; and whether the district court erred in not consolidating the two habeas

actions.

       Based upon our review, we conclude that petitioner has also satisfied the

second prong of the COA analysis, because “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling[s],”   Slack ,

529 U.S. at 484. Specifically, we conclude that it is debatable whether the court

was correct in 1) dismissing the first habeas proceeding for failure to prosecute,

2) denying petitioner’s motion to vacate the dismissal and consolidate the two

habeas actions, and 3) not considering whether to equitably toll the limitations

period for the second petition during the pendency of the first habeas proceeding.

Therefore, we grant petitioner a COA on these three procedural issues.




                                            -10-
       A district court may sua sponte dismiss an action for failure to prosecute

without prior notice to the parties under appropriate circumstances.          Link v.

Wabash R.R. Co. , 370 U.S. 626, 633 (1962). We review the dismissal of an

action for failure to prosecute under an abuse of discretion standard.            Joplin v.

Southwestern Bell Tel. Co. , 671 F.2d 1274, 1275 (10th Cir. 1982). “To be sure,

such a dismissal is a drastic sanction. It is to be applied only in extreme

situations.” Stanley v. Continental Oil Co.      , 536 F.2d 914, 916 (10th Cir. 1976).

To determine whether the district court abused its discretion in dismissing

petitioner’s habeas action under the circumstances presented here, we must

examine the procedural history of the case.          Joplin , 671 F.2d at 1275.

       The procedural history discussed above shows that the district court was

very accommodating to petitioner and his counsel. The court appointed counsel

to represent petitioner when he requested it; the court then appointed new counsel

when the first counsel had a conflict of interest; and the court granted new

counsel several extensions of time to file required pleadings, including one

extension of six months. The court is to be commended for its accommodation of

petitioner. Nonetheless, given this history of accommodation, it is not surprising

that petitioner expected the court to appoint new counsel to represent him once

his counsel withdrew, especially because he had made it clear to his counsel that




                                              -11-
he did not wish to proceed pro se.   3
                                         Further, because nothing in the record before

us suggests that petitioner was not being truthful when he stated that he did not

receive a copy of the court’s order directing him to proceed pro se, we must

assume that he was never disabused of the reasonable expectation that new

counsel would be appointed to represent him.

       When we couple petitioner’s expectation that new counsel would be

appointed with the fact that the one time petitioner did file a pro se pleading

while he was represented by counsel, he was chastised for doing so and his

pleading was stricken, we cannot say that petitioner’s failure to file a pro se

merits brief was either grossly negligent or tantamount to nonfeasance.      See id.

at 1276. Nor is there any evidence in the record of “intentional delay,

contumaciousness, or bad faith on the part of [petitioner].”     Id. Moreover, as

soon as petitioner learned that the court had dismissed his action for failure to

prosecute, he immediately refiled his habeas petition and sought relief from the

judgment, explaining why he had not proceeded with his case pro se.

       Under these circumstances, we conclude that the district court abused its

discretion in dismissing petitioner’s habeas action for failure to prosecute and in




3
      That the district court also understood petitioner’s desire for continued
representation by counsel is evident from its statement in the order allowing
counsel to withdraw that petitioner had not waived the appointment of counsel.

                                            -12-
not reinstating it when petitioner explained the reasons for his inaction. On

remand, the district court should reinstate the first habeas petition.

       Petitioner also challenges the district court’s dismissal of his second habeas

petition as untimely. The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), imposed a one-year limitation on a prisoner’s right to apply for habeas

relief, which generally runs from the date the prisoner’s conviction became final.

28 U.S.C. § 2244(d)(1)(A). For state prisoners like petitioner whose convictions

became final before AEDPA’s enactment on April 24, 1996, we recognized

a one-year grace period within which they were required to file their habeas

petitions. Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). This

one-year period is subject to both statutory and equitable tolling.       See 28 U.S.C.

§ 2244(d)(2); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       At the time petitioner filed his first habeas petition, there were

approximately seventeen days remaining in the one-year limitations period. His

first petition was pending for approximately two and one-half years when it was

dismissed without prejudice. Petitioner filed his second petition two days after

the first petition was dismissed. Therefore, his second petition was untimely

unless the limitations period was tolled during the pendency of the first petition.

The district court, relying on the Supreme Court’s opinion in         Duncan v. Walker ,

ruled that the pendency of the first petition did not toll the limitations period.


                                            -13-
Duncan , however, speaks only to statutory tolling under § 2244(d), and does not

address equitable tolling.

       We have held that equitable tolling is available “only in rare and

exceptional circumstances . . . [such as] when a prisoner is actually innocent,

when an adversary’s conduct–or other uncontrollable circumstances–prevents a

prisoner from timely filing, or when a prisoner actively pursues judicial remedies

but files a defective pleading during the statutory period.”   Gibson , 232 F.3d

at 808 (quotation and citations omitted). Petitioner argued that the circumstances

here were of a similar exceptional nature, so as to warrant equitable tolling of the

limitations period. It does not appear from the district court’s order that it

considered this argument. Therefore, we will reverse the dismissal of petitioner’s

second petition and remand to the district court so that it can consider whether

equitable tolling is warranted here.

       On remand, the district court should consolidate the two habeas

proceedings in the interests of judicial economy. Not only are the two habeas

petitions virtually identical, but the parties filed additional pleadings in the

second action that they did not file in the first action because it was prematurely

dismissed. Consolidation would obviate any need for the parties to refile those

pleadings in the first action. The district court should then proceed expeditiously

to set an appropriate briefing schedule on the merits, bearing in mind that


                                            -14-
petitioner has had quite a lot of time to ponder his arguments. The court should

also consider whether to appoint new counsel to represent petitioner, a matter on

which we express no opinion. Further, the court should consider whether

a transcript of the state post-conviction proceedings is necessary to petitioner’s

claims and, if so, should determine whether a transcript or a tape recording of

those proceedings can reasonably be made available to petitioner.

      In addition to his application for COA, petitioner has filed several motions

with this court. In particular, petitioner has filed a motion to consolidate his two

appeals, a motion for appointment of counsel or access to a law library, a motion

for sanctions, and a notice of and objection to change of address, which we have

construed as an objection to transfer. We grant petitioner’s motion to consolidate

the two appeals for procedural purposes only and deny the remainder of

petitioner’s motions.

      We previously denied petitioner’s motion for appointment of counsel by

separate order. Petitioner’s alternative motion for access to a law library

complains about the lack of access to legal materials in the New Mexico

penitentiary. Petitioner, however, does not allege any prejudice flowing from the

alleged denial of access to legal materials in New Mexico.   See Lewis v. Casey ,

518 U.S. 343, 351 (1996) (requiring inmate to “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered his efforts to


                                          -15-
pursue a legal claim”). Further, petitioner has been transferred to a prison in

Virginia and is no longer in the New Mexico prison system. Therefore, any

complaint about the continued denial of legal materials in the New Mexico prison

system is moot.

      Petitioner’s motion for sanctions and his objection to transfer are related.

Petitioner objects to respondent warden having transferred him out of New

Mexico during the pendency of a habeas appeal without first obtaining court

approval, as required by Fed. R. App. P. 23(a), and he seeks sanctions against

respondent for doing so. Specifically, petitioner asks that respondent warden be

held in contempt, that he be ordered to return petitioner to New Mexico, and that

he be enjoined from transferring petitioner out of New Mexico in the future. In

his response to petitioner’s motion, respondent warden admits that he transferred

petitioner out of New Mexico without first seeking court approval and apologizes

for this failure, but asks that he not be ordered to transfer petitioner back to

New Mexico for security reasons. Based on the reasons given by respondent

warden for petitioner’s transfer to Virginia and the lack of any prejudice

demonstrated by petitioner as a result of his transfer, we conclude that the

relief sought by petitioner in his motion for sanctions is not warranted at

this time.




                                          -16-
      In conclusion, petitioner’s application for COA in No. 00-2347 is

GRANTED, and the judgment of the district court is REVERSED and the matter

REMANDED for further proceedings consistent with this order and judgment.

Petitioner’s application for COA in No. 01-2304 also is GRANTED, and the

judgment of the district court is REVERSED and the matter REMANDED for

further proceedings consistent with this order and judgment. Petitioner’s motion

for access to a law library, his objection to transfer, and his motion for sanctions

in No. 00-2347 are DENIED. Petitioner’s motion to consolidate appeal

No. 00-2347 and appeal No. 01-2304 is GRANTED insofar as the appeals are

consolidated for procedural purposes only.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                         -17-
