* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 7/10/96 TENTH CIRCUIT

BRIAN D. DUBUC,

Petitioner-Appellant,

v. OKLAHOMA COURT OF CRIMINAL APPEALS, TULSA COUNTY DISTRICT COURT, STATE OF OKLAHOMA, BOBBY BOONE, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 96-5024 (N. Dist. of OK) (D.C. No. 94-C-1024-E)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(1); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Brian Dale DuBuc appeals pro se the Order of the di strict court dismissing his habeas corpus petition as moot. In March 1992, DuBuc was convicted in Tulsa County District Court. He subsequently appea led his conviction to the Oklahoma Court of Criminal Appeals. In November 19 94, a decision in his appeal not yet rendered, DuBuc filed a pro se petit ion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion to stay the state court proceeding in the United States District Court for the Northern D istrict of Oklahoma. The district court determined that excusing DuBuc’s fai lure to exhaust state remedies was appropriate under the circumstances and, reason ing that DuBuc may have confused his current appellate delay claims with po ssible subsequent claims, granted him additional time to allege any prejudice resulting from the delay in his direct appeal. The district court, however, deniedDuBuc’s motion for a stay of the state proceedings. Later, on June 12, 1995, th e district court granted DuBuc’s motion for leave to amend the habeas petition pursu ant to Harris v. Champion , 48 F.3d 1127 (10th Cir. 1995). On June 29, 1995, howe ver, before the district court had decided the merits of his habeas petition, the Oklahoma Court of Criminal Appeals reversed DuBuc’s conviction and remanded hi s case for a new trial.1 The district court granted a certificate of probabl e cause on January 19,

1996. DuBuc filed his notice of appeal the preceding day. In Edens v. Hannigan , this court determined the recent amendments to habe as corpus law did not apply retroactively to habeas appeals filed prior to the date the new law was signed by the President, April 24, 1996. Edens v. Hannigan , No. 94-3352, 1996 WL 339763, at *1 n.1 (10th Cir. June 20, 1996). On the basis of Edens , we conclude that the new law does not apply to this case. -3- Soon after the decision of the Oklahoma Court of Cr iminal Appeals, the Respondents moved to dismiss DuBuc’s habeas action. Respondents argued the reversal of DuBuc’s conviction mooted the habeas ac tion because there was no longer a conviction from which to grant relief. Du Buc contended that the Oklahoma court’s delay in deciding his appeal may p rejudice his ability to defend himself on retrial. The district court held DuBuc’ s argument was immaterial to his appellate delay claim and stated that DuBuc cou ld raise the issue before the Tulsa County District Court. It then dismissed the habeas action as moot. DuBuc appeals the dismissal. We have jurisdiction pursuant to 28 U.S.C. § 1291. 1 On appeal, DuBuc raises several issues. He argues the following: (1) the district court erred by dismissing his habeas petit ion as moot because he was entitled to more relief than was granted by the Okl ahoma Court of Criminal Appeals; (2) the district court erred when it denie d his request for an evidentiary hearing; (3) the district court erred in denying hi s motion to stay the state court proceedings. As part of each argument, DuBuc conte nds that each error by the district court was of constitutional dimensions.-4-

The issues raised by DuBuc have been resolved by th is court against his positions in Hayes v. Evans , 70 F.3d 85 (10th Cir. 1995). In Hayes , the petitioner brought a § 2254 motion contending that the delay i n adjudicating the direct appeal of his Oklahoma state court criminal convict ion violated his due process rights. While his petition was pending in the district court, the Oklahoma Court of Criminal Appeals reversed his conviction and rem anded the action for a new trial. Hayes argued in the district court that the reversal of his conviction did not moot his habeas petition because the Oklahoma court ’s delay in adjudicating his appeal prejudiced his ability to defend himself in retrial. The district court then denied him an evidentiary hearing and denied his habeas petition. On appeal, Hayes raised issues very similar to thos e brought by DuBuc. This court, however, ordered the district court to dismiss Hayes’s habeas petition
as moot. Id. at 86-87. The court reasoned that the state court ’s reversal of Hayes’s conviction and its remand for a new trial p rior to the district court’s reaching the merits of the habeas petition had affo rded Hayes all the relief the federal district court could have granted him. Id. at 86. Because Hayes had conceded that the delay in adjudicating his direct appeal did not prejudice the appeal itself, the federal district court could nothave granted him any relief beyond what he received on direct appeal. Id.-5-

Although DuBuc does not concede the delay in his di rect appeal somehow affected its outcome, it is apparent he does not re ally allege that it did. Instead, he argues the Oklahoma Court of Criminal Appeals di d not resolve all of his appellate contentions, especially his sufficiency o f the evidence claim, and thus his habeas petition is not moot. DuBuc’s contentio ns, in this respect, clearly focus on trial errors rather than any prejudice res ulting from appellate delay. Moreover, it is important to note that the Oklahomacourt reversed his conviction and that it no longer exists. We hold that in light of this reversal, it was not necessary for the Oklahoma court to resolve every appellate issue. On the basis of our holding above, we conclude thatDuBuc’s other claims are also moot. The district court could have affor ded DuBuc no more relief than that he received from the Oklahoma Court of Crimina l Appeals. The district court is thus AFFIRMED in its dismissal of DuBuc’s habeas petition, AFFIRMED in its denial of his request for an evidentiary hearin g, and AFFIRMED in its denial of his motion to stay the state court proceedings.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge