                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUN 28 2000
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 GAVIN D. SCOTT,

           Petitioner - Appellant,
 vs.                                                     No. 99-3173
                                                   (D.C. No. 99-3198-DES)
 HON. DAVID W. KENNEDY, District                          (D. Kan.)
 Court Judge, Division 4, 18th Judicial
 District for the State of Kansas;
 NOLA FOULSTON, District Attorney
 for Sedgwick County; STATE OF
 KANSAS; MIKE HILL, Sedgwick
 County Sheriff,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, MCKAY, and LUCERO, Circuit Judges.


       Mr. Scott, an inmate under the control of the Kansas Department of

Corrections, appeals from the district court’s denial of his habeas petition, 28

U.S.C. § 2241. Mr. Scott’s petition alleged that a second sentencing hearing



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
would violate the Double Jeopardy clause of the Constitution, violate the Eighth

Amendment, and violate his Due Process rights. Our jurisdiction arises under 28

U.S.C. § 1291, and we remand to the district court to dismiss the petition without

prejudice for failure to exhaust state remedies.

      Mr. Scott was convicted by a jury of capital murder, among other crimes,

and sentenced to death on August 21, 1998. On February 12, 1999, the trial court

found that Mr. Scott had been denied a fair and impartial sentencing hearing due

to the presence of a Bible and other religious items present during jury

deliberations. The court set aside Mr. Scott’s death sentence and ordered a new

sentencing hearing.

      On May 18, 1999, Mr. Scott filed a Petition for a Writ of Mandamus with

the Kansas Supreme Court, requesting that court to order the trial court to cancel

the second sentencing hearing and sentence him to life as a matter of law. On

June 7, 1999, Mr. Scott filed the instant § 2241 motion in federal district court.

The next day, the Kansas Supreme Court denied mandamus relief. On June 9,

1999, the district court denied Mr. Scott’s habeas petition on the merits.

Subsequently, both the district court and this court denied emergency motions to

stay the second sentencing hearing, and that hearing was held on June 14, 1999, at

which time Mr. Scott again received a sentence of death.

      Mr. Scott’s direct criminal appeal of his conviction and sentencing is


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currently pending before the Kansas courts. While appellant was not foreclosed

from seeking federal intervention prior to his second sentencing hearing, because

that relief was denied and Mr. Scott has now been formally sentenced, he cannot

maintain this action in federal court until the Kansas Supreme Court has had an

opportunity to address his direct appeal.      See Coleman v. Thompson , 501 U.S.

722, 731 (1991) (exhaustion requirement grounded in principles of comity; state

courts should be given the first opportunity to correct constitutional violations);

Capps v. Sullivan , 13 F.3d 350, 354 n.2 (10th Cir. 1993) (“‘federal courts should

abstain from the exercise of [§ 2241] jurisdiction if the issues raised in the

petition may be resolved either by trial on the merits in the state court or by other

state procedures available to the petitioner.’” (citation omitted)).

       The wisdom of this doctrine is apparent in this case, because the state

court, which has yet to rule on Mr. Scott’s appeal, could overturn his conviction

or sentence on a number of grounds, rendering our opinion merely advisory. We

remand to the district court to dismiss the petition without prejudice for failure to

exhaust state remedies.



                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge


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