                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0206n.06

                                              No. 09-3979                                      FILED
                                                                                            Apr 01, 2011
                            UNITED STATES COURT OF APPEALS                           LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


AKIL McINTOSH,                                               )
                                                             )         ON APPEAL FROM THE
        Petitioner-Appellee,                                 )         UNITED STATES DISTRICT
                                                             )         COURT FOR THE NORTHERN
v.                                                           )         DISTRICT OF OHIO
                                                             )
STUART HUDSON,                                               )
                                                             )                     OPINION
        Respondent-Appellant.                                )



BEFORE:         BOGGS and McKEAGUE, Circuit Judges; and QUIST, District Judge.*

        PER CURIAM. This case poses the question whether the statute of limitations for habeas

corpus claims under 28 U.S.C. § 2244(d)(1)(D) requires that the defendant demonstrate due diligence

in order to receive the later start date for appeal-based, as well as conviction-based, claims. The

district court concluded that due diligence is not required in appeal-based claims and therefore

Petitioner McIntosh’s appeal-based claim was timely. It determined that McIntosh was entitled to

notice of his appellate rights, despite his guilty plea, and therefore that the state court’s denial of his

delayed appeal violated federal law. The district court therefore granted a conditional writ of habeas

corpus, requiring reinstatement of McIntosh’s direct appeal within sixty days or release of McIntosh

from prison.




        *
       The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-3979
McIntosh v. Hudson

        Ohio reinstated McIntosh’s appeal. The Ohio Court of Appeals has now heard, and rejected,

McIntosh’s claim, State v. McIntosh, 2010-Ohio-6471, 2010 WL 5550252 (Ohio App. Dec. 30,

2010); and the time for him to seek review with the Supreme Court of Ohio has passed, see Ohio S.

Ct. Prac. R. 2.2(A) (requiring appeal within 45 days of decision). Therefore, McIntosh’s state appeal

has been completed, and the appeal before this court has become moot. See Hill v. Sheets, No. 08-

4654, 2010 WL 4627896, at *3 (6th Cir. 2010) (holding that when the state fulfilled one of the two

options ordered by the district court for habeas relief, the appeal to this court was moot).

        The sole reason we dismiss this appeal is that it is now moot and thus immune from review;

Hall v. Beals, 396 U.S. 45, 48 (1969); whether a right to notice of appeal in these circumstances is

“clearly established,” however, remains an open question. Because we lack the authority to vacate

the district court’s now-moot judgment granting habeas relief, we DISMISS the appeal for want of

jurisdiction.




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