Harold Dean Hornsby, Petitioner, v. Dan M. Reynolds, Warden, and Attorney General of the Stateof Oklahoma, Respondents, 38 F.3d 1220 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

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. Therefore, the case is ordered submitted without oral argument.

Petitioner Hornsby appeals the dismissal of his Petition for Writ of Habeas Corpus for failure to exhaust state remedies. For the reasons explained below, we AFFIRM.

Petitioner Hornsby was convicted of robbery by fear and robbery with a firearm under Oklahoma's habitual offender statute. The trial judge sentenced Hornsby to consecutive 15-year and 25-year terms and imposed a $5,000 fine. Hornsby appealed his conviction to the Oklahoma Court of Criminal Appeals, filing a Notice of Intent to Appeal on January 22, 1993 and a Petition in Error on July 21, 1993. Final briefs were submitted to the Oklahoma Court of Criminal Appeals on December 7, 1993. Hornsby's direct appeal is still pending before the Oklahoma courts.

During the pendency of his direct state appeal, Hornsby filed a Petition for Writ of Habeas Corpus in federal district court on April 30, 1993.²  The district court dismissed the petition, finding that Hornsby had failed to exhaust his state remedies because of his pending appeal before the Oklahoma Court of Criminal Appeals.³  Hornsby now appeals the dismissal of his federal petition, arguing that he has exhausted all available state remedies or that he should be excused from the exhaustion requirement.

As the district court explained in dismissing Hornsby's petition, a prisoner must exhaust all available state remedies before he or she can pursue collateral relief in federal court. See 28 U.S.C. 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). Hornsby has not exhausted all available state remedies because his direct appeal to the Oklahoma Court of Appeals is still pending.

The requirement of exhaustion of state remedies can be excused, however, where there is excessive and inexcusable delay in a state appeal process. Harris v. Champion, 938 F.2d 1062, 1064-65 (10th Cir. 1991). In Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994) (Harris II), we further defined excessive and inexcusable delay and established a presumption that exhaustion is excused where there is a delay of greater than two years from the filing of the notice of appeal to final adjudication of a direct criminal appeal. Only three months elapsed from the filing of Hornsby's notice of appeal until his initial habeas petition.⁴  Two years have still not elapsed since Hornsby's filing of an intent to appeal.

In Harris II, we recognized that particular circumstances can vary the two-year presumption, either excusing exhaustion for periods of less than two years or requiring exhaustion for periods of greater than two years. Id. However, Hornsby has alleged no particular circumstances to vary the presumptive two-year rule in his case. In fact, final briefs were filed in his direct appeal on December 7, 1993, and the appeal seems to be progressing. Accordingly, we find that exhaustion is not excused and that Hornsby's Petition for Writ of Habeas Corpus was properly dismissed. Because we affirm the dismissal of Hornsby's habeas petition for lack of exhaustion, we do not reach the merits of his substantive claims.⁵ 

AFFIRMED.