                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           OCT 21 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    MAURICE B. MOORE,

                  Petitioner - Appellant,

    v.                                                   No. 02-3024
                                                   D.C. No. 00-CV-3146-DES
    MICHAEL A. NELSON, Warden;                            (D. Kansas)
    CARLA J. STOVALL, Attorney
    General of Kansas,

                  Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before MURPHY , ANDERSON , and HARTZ , 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      This order and judgment is not binding precedent, except under the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 Maurice B. Moore, appearing       pro se , appeals the district court’s

denial of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C.

§ 2254. Because petitioner has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss the appeal. Petitioner also filed a petition for a writ of mandamus seeking

release pending appeal.   1
                              Based on our dismissal of petitioner’s habeas appeal for

lack of meritorious issues, we dismiss his mandamus petition as moot.

      In February 1986, petitioner tendered his plea of guilty to aggravated

battery on a police officer and unlawful possession of a firearm in the Kansas

state court. Petitioner was sentenced to concurrent sentences of thirty years to life

on the first count, and three to ten years on the second count. In November 1996,

the state district court granted petitioner’s motion for post-conviction relief and

vacated his convictions. The court held that petitioner’s plea was improvidently

accepted because the trial court did not adequately ascertain that the plea was

knowing and voluntary, and because the trial court relied upon petitioner’s signed

plea instead of requiring him to enter the plea in open court. R., Doc. 3, Ex. B.

      In January 1997, the state filed an amended information against petitioner,

and on April 10, 1997, petitioner pleaded guilty to the charges of aggravated


1
       Because the mandamus petition patently lacked merit and petitioner’s
habeas appeal was set for consideration, we delayed deciding the petition until
petitioner’s habeas issues were considered.

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battery, unlawful possession of a firearm, and carrying a concealed firearm.

Petitioner was again sentenced to an indeterminate sentence of thirty years to life,

and his convictions and sentence were affirmed on direct appeal in December

1999.

        Between petitioner’s first and second guilty pleas, the State of Kansas

changed its sentencing guidelines from indeterminate sentencing to determinate

sentencing. Although the new guidelines applied only to defendants who

committed their crimes after July 1, 1993, section 21-4724(b) of the Kansas

Statutes contained a limited retroactivity provision for certain offenders whose

crimes were less serious and whose sentences would have been shorter under the

new guidelines.   Id. The guidelines also provided that defendants who committed

their offenses before July 1, 1993, but were sentenced after that date, should be

sentenced under the old law, but that the sentencing court should determine what

the sentence would be under the new law.       Id. , § 21-4724(f). In State v. Fierro ,

895 P.2d 186, 191 (Kan. 1995), the Kansas Supreme Court interpreted this

provision as “providing offenders sentenced after July 1, 1993,      who are otherwise

qualified for retroactivity under 21-4724(b)     , the same opportunity for

retroactivity as offenders sentenced before that date.” (emphasis added).

        In December 1997, the state court held a hearing to determine petitioner’s

sentence under the new guidelines. The state court held that petitioner was not


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eligible for conversion to the new guidelines because of the seriousness of his

crimes. Petitioner brought a second post-conviction motion to challenge his

sentence, which was denied, and the Kansas Court of Appeals affirmed the denial

in November 2000. The Kansas Supreme Court denied review.

      On April 27, 2000, petitioner filed this petition for a writ of habeas corpus.

The district court denied relief, holding that (1) jeopardy did not attach when

petitioner entered his 1986 plea because the factual basis was not evidence upon

which the district court found petitioner guilty; (2) petitioner’s argument that his

conviction was based on insufficient evidence failed for the same reason;

(3) petitioner’s speedy trial argument based on state law was not cognizable on

habeas review; (4) the speedy trial “clock” was reset when petitioner’s initial plea

was vacated, and the delay between this event and his second guilty plea was not

presumptively prejudicial; (5) alternatively, the speedy trial issue was waived by

petitioner’s voluntary and intelligent guilty plea; (6) petitioner was not deprived

of equal protection or due process because he was ineligible for sentence

conversion under the new sentencing guidelines; (7) petitioner’s ineffective

assistance claims were without merit under         Strickland v. Washington , 466 U.S.

668 (1984); and (8) petitioner’s claims of judicial misconduct failed either

because they were wholly lacking in merit or because they were based on an

alleged violation of state law. R., Doc 13. Petitioner appeals.


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       Before we may consider his appeal, petitioner must obtain a certificate of

appealability by making a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). If the district court denied a claim on its merits,

petitioner may make this showing by demonstrating that “reasonable jurists would

find the district court’s assessment of [his] constitutional claims debatable or

wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). If the claim was denied

upon a procedural ground, however, petitioner must show both that the procedural

ruling is debatable and that his petition stated a valid claim of the denial of

a constitutional right.   Id. Petitioner has not demonstrated his entitlement to a

certificate of appealability on any of his issues.

       Petitioner’s double jeopardy claim has no merit because it is well

established that “the Double Jeopardy Clause’s general prohibition against

successive prosecutions does not prevent the government from retrying a

defendant who succeeds in getting his first conviction set aside, through direct

appeal or collateral attack, because of some error in the proceedings leading to

conviction.” Lockhart v. Nelson , 488 U.S. 33, 38 (1988). Further, contrary to

petitioner’s claim, his initial guilty plea was not set aside due to insufficient

evidence, and therefore the exception recognized in    Burks v. United States , 437

U.S. 1, 18 (1978), does not apply.




                                           -5-
       Petitioner’s due process argument is similarly deficient. Petitioner appears

to argue that the parties’ 1986 stipulation of facts was binding in 1997, and that,

therefore, the evidence was insufficient to convict him of the amended charges.

This argument is based on two incorrect assumptions. First, the 1986 stipulation

was not “evidence” upon which the state court “found” petitioner guilty, but was

a factual recitation in support of petitioner’s plea. Second, by entering the 1997

plea, petitioner admitted his guilt of the substantive crimes which were the

subject of the plea.   See United States v. Broce , 488 U.S. 563, 570 (1989).

       Petitioner also has not made a substantial showing that he was denied a

constitutional right based on his speedy trial claim. As the district court held,

petitioner’s speedy trial claim did not date back eleven years to the time he was

initially charged in 1986, but began to run after his conviction was set aside in

1996. Petitioner argues that even if this is so, his rights under section 22-3402(4)

of the Kansas Statutes were violated when the state court accepted his plea after

the statutory 90-day period expired. Federal habeas relief is not available,

however, for violations of state law.    Montez v. McKinna , 208 F.3d 862, 865 (10th

Cir. 2000).

       In addition, although extreme delays can rise to the level of a constitutional

speedy trial violation, here petitioner has not shown that he was subjected to a

“presumptively prejudicial” delay.      See Barker v. Wingo , 407 U.S. 514, 530-32


                                            -6-
(1972) (adopting balancing test for constitutional speedy trial claims and

cautioning that until “there is some delay which is presumptively prejudicial,

there is no necessity for inquiry into the other factors”);     United States v. Lugo ,

170 F.3d 996, 1002 (10th Cir. 1999) (holding seven-month delay is not

presumptively prejudicial).

       Petitioner next argues that the state court’s failure to apply its new

sentencing guidelines to him violated his constitutional rights. We begin by

noting that petitioner does not have a constitutional right to the application of a

sentencing statute enacted after the date he committed his crime, and the cases he

cites do not support a contrary proposition. Further, in this case it makes no

difference whether petitioner was sentenced under the law in effect when he

committed his crimes or the law in effect when he was sentenced in 1997, as

under either law he was not entitled to a shorter sentence because of the

seriousness of his crimes.

       Petitioner contends that because section 21-4724(f) treats similar offenders

differently based on the date of their offense, the law denies him his right to

equal protection. A sentencing classification does not violate equal protection if

it is rationally related to a legitimate government interest.     United States v.

McKissick , 204 F.3d 1282, 1300 (10th Cir. 2000). Here, the Kansas Supreme

Court identified a legitimate goal underlying section 21-4724(f)’s differential


                                              -7-
treatment of defendants who committed their crimes before July 1, 1993: to avoid

potential ex post facto problems.   Fierro , 895 P.2d at 190-91. As the prohibition

against ex post facto laws protects a defendant from penalties that are harsher

than those in effect when the crime was committed, it is rational to differentiate

between offenders based on the date of their offenses.    See Johnson v. United

States , 529 U.S. 694, 699 (2000) (holding ex post facto clause “bars application

of a law that changes the punishment, and inflicts a greater punishment, than the

law annexed to the crime,   when committed .”) (quotation omitted, emphasis

added).

       Petitioner next argues that his attorney was ineffective during the second

criminal proceeding by (1) failing to request a new identification line-up;

(2) failing to seek dismissal based on the alleged double jeopardy and due process

violations caused by the refiling of the same charges with additional elements;

(3) informing petitioner that the State had 180 days to try petitioner under the

speedy trial provisions instead of the actual 90 days; (4) failing to file for

dismissal after the 90-day period expired; and (5) seeking a continuance after the

90-day period expired. The district court correctly dismissed these claims.

       Petitioner has not shown that counsel’s decision regarding a new line-up

was anything other than a strategic decision or that it prejudiced petitioner. His

second claim lacks merit for the reasons identified in this decision. Regarding his


                                           -8-
speedy trial claims, we begin by noting that it is not clear that section 22-3402(4)

applies here, as petitioner’s convictions were not “reversed on appeal,” but

instead were set aside in a post-conviction proceeding. Even if we were to

assume that the 90-day limit applies, petitioner has not demonstrated a speedy

trial violation, as the statute excepts from computation delays attributable to

petitioner. Kan. Stat. Ann. § 22-3402(1). During the approximately five months

between the date petitioner’s convictions were set aside and the date he again

pleaded guilty, petitioner or his attorney filed twelve separate motions, requiring

numerous hearings, and filed a notice that petitioner’s competency would be

contested, requiring an evaluation. In light of the delays chargeable to petitioner,

he has not shown that his attorney’s decisions regarding the speedy trial issue

were unreasonable or prejudicial. Petitioner’s unsupported claim that his attorney

had an ongoing conflict of interest was also properly dismissed.

      Petitioner’s application for a certificate of appealability is DENIED and his

appeal is DISMISSED. Petitioner’s motion to supplement the record on appeal is

DENIED as moot. Petitioner’s mandamus petition is DISMISSED as moot. The

mandate shall issue forthwith.

                                                     Entered for the Court


                                                     Michael R. Murphy
                                                     Circuit Judge


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