                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            NOV 3 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 ROMAN PETE WANSING,

       Petitioner - Appellant,
 v.                                                 Nos. 04-7016, 04-7018
                                                   (D.C. No. CIV 99-645-P)
 STEVE HARGETT, Warden; STATE                            (E.D. Okla.)
 OF OKLAHOMA,

       Respondents - Appellees.


                                      ORDER


Before EBEL, MURPHY and McCONNELL, Circuit Judges.




      In 2003, we granted Petitioner Roman Pete Wansing relief pursuant to a

habeas petition, remanding his case to the district court “with instructions to enter

judgment granting Mr. Wansing’s petition for writ of habeas corpus unless the

state retries him within a reasonable time to be determined by the district court.”

Wansing v. Hargett, 341 F.3d 1207, 1215 (10th Cir.), cert. denied 124 S. Ct. 960

(2003). In these appeals, Petitioner challenges two orders related to that decision.

The first is the district court’s order, issued in response to our remand, directing

Petitioner’s release or retrial. The second is the district court’s order denying

Petitioner’s motion to “expedite his release”—a motion that Petitioner filed after
we remanded the case to the district court but before the district court ordered

Petitioner’s release or retrial.

       Before addressing the issues in this appeal, we must clarify the relevant

procedural history of this case since the time of our 2003 judgment, for that

history plays a key role in our analysis. Eight events are particularly important:

1.     On August 29, 2003, we issued our judgment.

2.     On October 6, 2003, Petitioner filed a motion to expedite his release with
       the district court.

3.     On October 10, 2003, the district court received a certified copy of our
       August 29 judgment and a copy of our opinion.

4.     On December 10, 2003, in response to our remand, the district court issued
       an order stating that “petitioner’s habeas corpus petition is granted, unless
       the state court retries him within 120 days of this order.”

5.     Also on December 10, 2003, the district court overruled Petitioner’s motion
       to expedite his release.

6.     On December 18, 2003, Petitioner gave notice of his intent to appeal the
       district court’s order granting his habeas petition unless the state court were
       to retry him within 120 days.

7.     On or around December 18, 2003, Petitioner gave notice of his intent to
       appeal the district court’s order overruling his motion to expedite his
       release.

8.     From March 29, 2004 through April 1, 2004, Petitioner was re-tried and re-
       convicted in Oklahoma state court. According to Petitioner, he was re-
       sentenced on April 19, 2004.




                                         -2-
      On appeal, Petitioner, appearing pro se and in forma pauperis, 1 argues that:

1.    The delay between our August 29 judgment and the district court’s
      December 10 order directing Petitioner’s retrial was improper and
      prejudicial.

2.    The State of Oklahoma should not have been given 120 days in which to
      attempt to effect a retrial.

3.    The 120-day period should have begun on the date of our judgment, rather
      than on the date of the district court’s order.

4.    He should have been released from custody pending the State of
      Oklahoma’s decision whether or not to retry him.

5.    The retrial violates the Double Jeopardy Clause of the U.S. Constitution,
      the doctrine of collateral estoppel, and the Oklahoma constitution.

6.    The State of Oklahoma failed to retry him within 120 days, since Petitioner
      was not re-sentenced until nine days after that period had expired.

7.    For a host of reasons, the proceedings during and surrounding his re-trial in
      Oklahoma state court were constitutionally flawed.

      In its December 10 orders, the district court did not address whether

Petitioner should be granted a certificate of appealability (“COA”).

Consequently, we treat this appeal as though the district court denied Petitioner a

COA. To obtain a COA, Petitioner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). This is

accomplished by establishing that “reasonable jurists could debate whether (or,


      1
       Based on our review of Defendant’s financial declarations, we grant his
motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(1)
(2000).

                                        -3-
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, 483-84 (2000) (quotations

omitted). For the following reasons, Petitioner has failed to make such a

showing, and we therefore DENY Petitioner’s request for a COA and DISMISS

this appeal.

      Our analysis of Petitioner’s first claim—that the delay between our August

29 judgment and the district court’s December 10 order directing Petitioner’s trial

was improper and prejudicial—proceeds in two phases. The first phase focuses

on the transmittal of our judgment to the district court; the second, on the district

court’s actions after receiving our judgment.

      To the extent that any delay in the district court’s order may have been

caused by a delay in transmitting our judgment to the district court, we note that

we have acknowledged that delay in the processing or resolution of an appeal may

rise to the level of a due process violation. Harris v. Champion, 15 F.3d 1538,

1558 (10th Cir. 1994) (addressing delays largely attributed to the state public

defender’s office). However, the degree of delay in the case at bar—slightly more

than one month, from August 29 until approximately October 10—is not on par

with those delays that we have found to be constitutionally suspect. Cf. id. at




                                         -4-
1560 (establishing that “a two-year delay in finally adjudicating a direct criminal

appeal ordinarily will give rise to a presumption of inordinate delay”).

        To the extent that any delay in the date of the district court’s order may

have been caused by the district court itself, we note that delays comparable to

and far longer than the approximately two months 2 at issue in this case have been

deemed acceptable by the Supreme Court and other circuit courts. See, e.g.,

Garrison v. Hudson, 468 U.S. 1301, 1302 (1984) (“[A] 6-week delay of the

scheduled retrial would not impose an unreasonable delay on respondent who has

remained in confinement under a life sentence” for approximately seven years.);

Knox v. Johnson, 224 F.3d 470, 475 (5th Cir. 2000) (upholding, without directly

addressing, a ten- to eleven-month delay at the district court level in a case

analogous to the one at bar). We do not go so far as to embrace explicitly the

Fifth Circuit’s tolerance for a ten- to eleven-month delay between the date of an

appellate judgment and the date of a district court order on remand, but merely

hold that the delay in this case was not unreasonable.

        With respect to Petitioner’s second claim, it is clear that the district court

did not err in granting the State of Oklahoma 120 days to effect a retrial.

Allowing 120 days for a retrial is a common practice. See, e.g., Holloway v.



        2
            This delay lasted from approximately October 10, 2003 until December 10,
2003.

                                           -5-
Horn, 355 F.3d 707, 730 (3d Cir.), cert. denied No. 04-101, 2004 WL 2069420

(U.S. Nov. 1, 2004); Soffar v. Dretke, 368 F.3d 441, 480 (5th Cir. 2004); Foster

v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993). Thus, it is clear that the district

court’s decision to set such a period does not arise to the level of a “denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

      With respect to Petitioner’s third claim, there is no reason that the 120-day

period should have begun with the issuing of our judgment. Our judgment did not

set a 120-day limit, but allowed the district court to determine a reasonable time

limit for the State of Oklahoma to retry Petitioner, if the state were to choose to

do so. Wansing, 341 F.3d at 1215. The district court order did not explicitly set

our judgment as the beginning point for the measurement of the 120-day period.

      Petitioner’s fourth claim—that he should have been released pending the

State of Oklahoma’s decision whether or not to retry him—is utterly without

merit. “Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of

habeas corpus matters ‘as law and justice require.’ In construing § 2243 and its

predecessors, [the Supreme Court] has repeatedly stated that federal courts may

delay the release of a successful habeas petitioner in order to provide the State an

opportunity to correct the constitutional violation found by the court.” Hilton v.

Braunskill, 481 U.S. 770, 775 (1987)




                                          -6-
      Petitioner’s fifth and sixth claims are not properly before us. 3 Petitioner

appeals, inter alia, from the district court’s December 10 order stating that

“petitioner’s habeas corpus petition is granted, unless the state court retries him

within 120 days of this order.” To the extent that Petitioner’s retrial may have

raised double jeopardy concerns, those concerns are not implicated by the

December 10 order, which merely gave the State of Oklahoma the option of

retrying Petitioner if it chose to do so. Jeopardy attaches when the jury is

empaneled and sworn, Crist v. Bretz, 437 U.S. 28, 29 (1978), so double jeopardy

concerns are not implicated as a result of the district court’s order merely giving

the State of Oklahoma the option of empaneling and swearing a jury. To the

extent that Petitioner’s retrial may have raised double jeopardy concerns under the

Constitution, or analogous concerns under the constitution or laws of the state of

Oklahoma, Petitioner must raise those concerns by first exhausting his state court

remedies, then filing a new § 2254 petition. To the extent that Petitioner’s retrial

may have taken place more than 120 days after the district court’s December 10

order, Petitioner should first raise those concerns with the district court.




      3
       Thus, while we deny Petitioner’s request for a COA and dismiss his appeal
with respect to these claims, we do so without prejudice.

                                         -7-
      Like his fifth and sixth claims, Petitioner’s seventh claim also is not

properly before us. 4 That claim relates to events that occurred after Petitioner

raised this appeal. Therefore, Petitioner must first exhaust his state remedies,

then file a new § 2254 petition, in order to raise this claim. 5

      Thus, we DENY Petitioner’s request for a COA and DISMISS this appeal.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




      4
       Therefore, as we did with Petitioner’s fifth and sixth claims, while we
deny Petitioner’s request for a COA and dismiss his appeal with respect to this
claim, we do so without prejudice.
      5
         For the same reasons, we also DENY Petitioner’s “Motion for Summary
Judgment,” which we treat as a motion to vacate his state court conviction after
retrial.

                                          -8-
