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 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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 23, 2013

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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 
4 

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 
5 

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