                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                        October 23, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

    PHILLIP CHEATHAM, JR.,

                Petitioner-Appellant,                     No. 13-3138
          v.                                              (D. Kansas)
    SAM CLINE, Warden; DEREK                     (D.C. No. 5:12-CV-03249-SAC)
    SCHMIDT, Attorney General of the State
    of Kansas,

                Respondents-Appellees.



                            ORDER DENYING A
                      CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



         In Kansas state court, Mr. Phillip Cheatham, Jr. was convicted on charges

of murder, attempted murder, aggravated battery, and criminal possession of a

firearm. After unsuccessfully petitioning the district court for habeas relief under

28 U.S.C. § 2254 (2006), Mr. Cheatham appeals. We can only entertain the

appeal if we hold that Mr. Cheatham is entitled to a certificate of appealability.

See 28 U.S.C. § 2253(c)(1)(A) (2006). Holding that he is not, we dismiss the

appeal.

*
         This order does not constitute precedent. See 10th Cir. R. 32.1(A).
                    Standard for a Certificate of Appealability

      To obtain a certificate of appealability, Mr. Cheatham must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2006). This showing exists only if “reasonable jurists could debate

whether (or, 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, 484

(2000).

                    Mr. Cheatham’s Criminal Cases and His
                   Arguments for a Certificate of Appealability

      Mr. Cheatham was convicted twice, once in 1995 for voluntary

manslaughter (Case No. 94-CR-1801) and once in 2005 (Case No. 03-CR-2635)

for first-degree murder, attempted murder, aggravated battery, and unlawful

possession of a firearm. He appealed the 2005 conviction; but while waiting for a

decision, he filed a habeas petition, claiming in part that the state-court appeal

was taking too long and that he had suffered a double-jeopardy violation when

evidence was elicited about his 1995 conviction for manslaughter.

      Forty-five days after Mr. Cheatham began the habeas action, the Kansas

Supreme Court decided the appeal in his favor, reversing the 2005 conviction on

all counts and remanding for a new trial. State v. Cheatham, 292 P.3d 318 (Kan.

2013). The district court held that the state appellate decision mooted the habeas

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claims. R. vol. 1, at 175. Mr. Cheatham disagrees and seeks a certificate of

appealability, arguing that the state-court appeal took too long and that the

double-jeopardy violation prevented a retrial.

                    Mootness of Mr. Cheatham’s Habeas Claim
                    Involving Delay in the State-Court Appeal

      Though the state appeals court ultimately decided in favor of Mr.

Cheatham, he continues to claim that the court took too long. We can assume for

the sake of argument that the delay resulted in a denial of due process. See

Harris v. Champion, 15 F.3d 1538, 1566 (10th Cir. 1994). But Mr. Cheatham

ultimately obtained a favorable appellate decision, one which vacated his

conviction and ordered a new trial. Even if Mr. Cheatham were to prevail in the

habeas action, the federal district court would have no obligation to grant any

further relief even if the state appellate delay had resulted in a due-process

violation. See Harris v. Champion, 938 F.2d 1062, 1070 (10th Cir. 1991) (“When

the federal habeas court addresses a petitioner’s substantive claim of

unconstitutional delays in his state appeal, the most typical remedy is to order the

defendant released from custody unless the state court hears the petitioner’s

appeal within a clearly-defined, relatively short period of time (such as 90 days).”

(footnote omitted)).

      In virtually identical circumstances, we held that a habeas action was moot

in Hayes v. Evans, 70 F.3d 85 (10th Cir. 1995). There the petitioner challenged a

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state-court conviction and appealed. While this appeal was pending, the

petitioner sought habeas relief. But, before the federal court could rule on the

habeas petition, the state appellate court decided the appeal in the petitioner’s

favor, reversing and remanding for a new trial. Hayes, 70 F.3d at 86. The

petitioner argued that the reversal did not moot the habeas claim because the state

court’s delay prejudiced his ability to defend in a retrial. Id. We disagreed,

concluding that the habeas action was moot because the most the district court

could have done would have been to grant the same relief that the petitioner had

already obtained in his state-court appeal. Id.

      Hayes v. Evans is governing here. Like the petitioner in Hayes, Mr.

Cheatham contends that he has been prejudiced by the delay in his state-court

appeal. For example, he alleges that an alibi witness died during the pendency of

the appeal. But, we held in Hayes that reversal of a conviction moots the habeas

claim even if the state court’s delay has been prejudicial. Id. Under Hayes v.

Evans, the delay claim is moot and cannot supply the basis for a certificate of

appealability.

            Invalidity of the Habeas Claim Involving Double Jeopardy

      In addition to complaining about the state appellate delay, Mr. Cheatham

alleges a double-jeopardy violation based on use of his 1995 manslaughter

conviction in his trial in Case No. 03-CR-2635. The district court regarded this

claim as moot because the Kansas Supreme Court reversed the conviction in Case
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No. 03-CR-2635. We need not decide whether this rationale is correct because

even if the claim were not moot, it would remain groundless. The Double

Jeopardy Clause protects against reprosecution for the same conduct, but does not

ordinarily prevent introduction of evidence simply because it had been used in a

prior prosecution. See United States v. Felix, 503 U.S. 378, 385-86 (1992).

Thus, the double-jeopardy claim is not reasonably debatable and cannot provide

the basis for a certificate of appealability.

                                      Conclusion

      Mr. Cheatham’s delay claim is moot and his double-jeopardy claim lacks

potential merit. Thus, we deny his request for a certificate of appealability and

dismiss the appeal.


                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




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