                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 29 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    TYRONE LAMONT BAKER, SR.,

                Petitioner - Appellant,

    v.                                                  No. 02-3147
                                                  D.C. No. 95-CV-3184-DES
    LOUIS E. BRUCE; THE ATTORNEY                         (D. Kansas)
    GENERAL OF THE STATE OF
    KANSAS,

                Respondents - Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and LUCERO , Circuit Judges.


         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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Tyrone Baker, a state inmate, seeks a certificate of appealability

(“COA”) that would allow him to appeal from the district court’s order denying

relief on his habeas petition brought pursuant to 28 U.S.C. § 2254. He also

appeals from the court’s order lifting the stay in his habeas action. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We conclude that the district

court properly lifted the stay. Because Mr. Baker has failed to make a

“substantial showing of the denial of a constitutional right” as required by

28 U.S.C. § 2253(c)(2), we deny his application for COA and dismiss the appeal.


                             I. Facts and proceedings

      In 1991 Mr. Baker was convicted of two counts of first-degree murder and

two counts of aggravated kidnapping in Douglas County, Kansas, after having

been previously convicted of a separate count of first-degree murder, aggravated

burglary, conspiracy to commit aggravated burglary, and three counts of

kidnapping in Shawnee County, Kansas.    1
                                             His convictions all arise from a series

of events occurring in 1989 and beginning in Shawnee County, where Mr. Baker

murdered an elderly woman and burglarized her home. When three of the


1
       Mr. Baker’s conviction for aggravated assault was overturned by the
Kansas Supreme Court in 1994.      See State v. Baker , 877 P.2d 946, 951 (Kan.
1994). In his petition for COA, Mr. Baker briefly complains that Kansas still has
not removed that conviction from his records, and that the state court has refused
to rule on this issue in his post-conviction motions. That issue was not raised in
his habeas petition that we review here, however, and will not be addressed.

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victim’s neighbors came to check on her, Mr. Baker kidnapped them and drove

them to an isolated location in Douglas County. One of the kidnapped victims

convinced Mr. Baker to return to Shawnee County to make sure his first victim

was dead. After Mr. Baker left, she ran for help, and the other two victims, who

were elderly and infirm, tried to hide. When the victim who ran for help returned

with police officers, the other two victims were missing from the location where

Mr. Baker had left them. Their bodies were later found three miles away, but still

in Douglas County, where Mr. Baker had moved and murdered them. The State

asserted that this second moving of the victims constituted separate kidnappings.

Mr. Baker’s above-described convictions were affirmed on direct appeal.

      Mr. Baker filed his federal habeas petition on April 27, 1995, raising a

single issue: whether his trial and convictions for kidnapping in Douglas County

violated the Double Jeopardy Clause of the United States Constitution. On

October 17, 1997, Mr. Baker filed a motion for a stay of his federal habeas

proceeding, arguing that he was seeking state habeas relief for the first time on

additional grounds 2, and that if no relief was granted, he may wish to amend his

federal petition to include the issues. The district court granted the stay, noting



2
       The state-post conviction petition was filed May 21, 1997. The grounds
include incompetence to stand trial; “forced insanity plea”; conflict of interest;
“private vindictive prosecution”; prosecutorial misconduct; and ineffective
assistance of counsel. R. Doc. 19, Ex. A.

                                         -3-
that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) could

potentially bar the refiling of the federal habeas action if the court dismissed it

for failure to exhaust the potential claims.         See R. Doc. 14.

       The district court revisited its decision and lifted the stay on September 20,

2001, concluding that Mr. Baker’s potential additional federal habeas claims

would be barred under AEDPA because he had failed to timely raise them after

AEDPA’s passage, and they asserted new theories of relief.             See R. Doc. 21,

at 1-2 (citing Woodward v. Williams , 263 F.3d 1135 (10th Cir. 2001),           cert.

denied , 122 S. Ct. 1442 (2002);    Duncan v. Walker , 533 U.S. 167 (2001); and

United States v. Espinoza-Saenz     , 235 F.3d 501, 505 (10th Cir. 2000)). The court

concluded that Mr. Baker’s habeas petition was therefore ripe for decision, as a

stay could not salvage the untimely claims. We hold that the district court

properly lifted the stay.

        As to the merits of his petition for COA, Mr. Baker may make a

“substantial showing of the denial of a constitutional right” by demonstrating that

the Double Jeopardy issue raised in his habeas petition and rejected by the district

court is debatable among jurists, or that a court could resolve the issues

differently, or that the question presented deserves further proceedings.          See Slack

v. McDaniel , 529 U.S. 473, 483-84 (2000). We have carefully reviewed the

record, the petition, and the applicable law. For substantially the same reasons


                                               -4-
stated by the district court in its order filed March 29, 2002, we conclude that the

Double Jeopardy issue is not debatable among jurists, that we would not resolve

the issues differently, and that the question presented does not deserve further

proceedings. Mr. Baker’s “Motion to Proffer” transcripts from separate

state-court actions is DENIED. We DENY a COA and DISMISS the appeal.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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