UNITED STATES COURT OF APPEALS TENTH CIRCUIT

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

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 crimin al possession of a firearm. After unsuccessfull y petitioning the di strict court for ha beas relief under 28 U.S.C. § 2254 (2006), Mr. Cheatham a ppeals. We can only entertain the appeal if we hold that Mr. Ch eatham is entitled to a cert ificate 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 c onstitute precedent. See 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### October 23, 2013 Elisabeth A. Shumaker Clerk of Court2 Standard for a Certific ate of Appealability To obtain a certificate of appealab ility, Mr. Cheatham must make “a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2) (2006). This showing exists onl y if “reasonable ju rists could debate whether (or, for that matter, agree that) the petition shoul d have been resolved in a different manner or that the issues presented we re ‘adequate to deserve encouragement to pr oceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. Cheatham’s Criminal Cases and His Arguments for a Certific ate of Appealability Mr. Cheatham was convicted twice, once in 1995 for voluntary manslaughter (Case No. 94-CR-1801) a nd once in 2005 (Case No. 03-CR-2635) for first-degree murder, attempted murd er, aggravated battery, and unlawful possession of a firearm. He appealed the 2005 convicti on; but while waiting for a decision, he filed a habeas petition, claiming in part th at 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 ac tion, 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 habeas3 claims. R. vol. 1, at 175. Mr. Cheatham disagrees a nd seeks a certificate of appealability, arguing that the state-court appeal to ok too long and that the double-jeopardy violation prevented a retrial. Mootness of Mr. Chea tham’s Habeas Claim Involving Delay in the State-Court Appeal Though the state appeals court ulti mately decided in favor of Mr. Cheatham, he continue s to claim that the court took too long. We can assume for the sake of argument that the delay re sulted in a denial of due process. See Harris v. Champion , 15 F.3d 1538, 1566 (10th Ci r. 1994). But Mr. Cheatham ultimately obtained a favor able appellate decision, one which vacated his conviction and ordered a new trial. Even if Mr. Chea tham were to prevail in the habeas action, the federal district court w ould have no obligation to grant any further relief even if the state appella te delay had resulted in a due-process violation. See Harris v. Champion , 938 F.2d 1062, 1070 (10th Cir. 1991) (“When the federal habeas cour t addresses a petitioner’s substantive claim of unconstitutional delays in his state appeal, the most typical reme dy is to order the defendant released from cu stody unless the state cour t hears the petitioner’s appeal within a clearly-defi ned, relatively short period of time (such as 90 days).” (footnote omitted)). In virtually identical circumstances, we held that a hab eas action was moot in Hayes v. Evans , 70 F.3d 85 (10th Cir. 1995)

. There the peti tioner challenged a4 state-court conviction and appealed. While this appeal was pending, the petitioner sought habeas reli ef. But, before the fede ral court could rule on the habeas petition, the state appellate cour t decided the appeal in the petitioner’s favor, reversing and rema nding for a new trial. Hayes , 70 F.3d at 86. The petitioner argued that the reve rsal did not moot the hab eas claim because the state court’s delay prejudiced his abil ity 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 re lief that the petitioner had already obtained in hi s state-cour t appeal. Id. Hayes v. Evans is governing here. Li ke the petitioner in Hayes , Mr. Cheatham contends that he has been prejudiced by the delay in his state-court appeal. For example, he al leges that an alibi witness died during the pendency of the appeal. But, we held in Hayes that reversal of a c onviction 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 basi s for a certificate of appealability. Invalidity of the Habeas Cl aim Involving Double Jeopardy In addition to complain ing about the state appell ate 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 dist rict court regarded this claim as moot because the Kansas Supreme Court revers ed the conviction in Case5 No. 03-CR-2635. We need not decide whet her this rationale is correct because even if the claim were not moot, it would remain groundless. The Double Jeopardy Clause protec ts against reprosec ution for the same conduct, but does not ordinarily prevent introduction of evidence simply because it ha d been used in a prior prosecution. See United States v. Felix , 503 U.S. 378, 385-86 (1992). Thus, the double-jeopardy clai m is not reasona bly debatable a nd cannot provide the basis for a certific ate 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 certif icate of appealability and dismiss the appeal.

Entered for the Court

Robert E. Bacharach Circuit Judge