* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TYRONE LAMONT BAKER, SR.,

Petitioner - Appellant,

v. LOUIS E. BRUCE; THE ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents - Appellees. No. 02-3147 D.C. No. 95-CV-3184-DES (D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Mr. Baker’s conviction for aggravated assault was o verturned by the

Kansas Supreme Court in 1994. See State v. Baker , 877 P.2d 946, 951 (Kan. 1994). In his petition for COA, Mr. Baker briefly complains that Kansas still has not removed that conviction from his records, and that the state court has refused to rule on this issue in his post-conviction motion s. That issue was not raised in his habeas petition that we review here, however, and will not be addressed. -2- Petitioner Tyrone Baker, a state inmate, seeks a ce rtificate of appealability (“COA”) that would allow him to appeal from the dis trict court’s order denying relief on his habeas petition brought pursuant to 2 8 U.S.C. § 2254. He also appeals from the court’s order lifting the stay in his habeas action. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We conclude that the district court properly lifted the stay. Because Mr. Baker has failed to make a “substantial showing of the denial of a constitutio nal right” as required by 28 U.S.C. § 2253(c)(2), we deny his application forCOA and dismiss the appeal.
I. Facts and proceedings In 1991 Mr. Baker was convicted of two counts of fi rst-degree murder and two counts of aggravated kidnapping in Douglas County, Kansas, after having been previously convicted of a separate count of fi rst-degree murder, aggravated burglary, conspiracy to commit aggravated burglary, and three counts of kidnapping in Shawnee County, Kansas. 1 His convictions all arise from a series of events occurring in 1989 and beginning in Shawne e County, where Mr. Baker murdered an elderly woman and burglarized her home. When three of the2 The state-post conviction petition was filed May 21 , 1997. The grounds

include incompetence to stand trial; “forced insani ty plea”; conflict of interest; “private vindictive prosecution”; prosecutorial mis conduct; and ineffective assistance of counsel. R. Doc. 19, Ex. A. -3- victim’s neighbors came to check on her, Mr. Baker kidnapped them and drove them to an isolated location in Douglas County. On e of the kidnapped victims convinced Mr. Baker to return to Shawnee County to make sure his first victim was dead. After Mr. Baker left, she ran for help, and the other two victims, who were elderly and infirm, tried to hide. When the v ictim who ran for help returned with police officers, the other two victims were mi ssing from the location where Mr. Baker had left them. Their bodies were later f ound three miles away, but still in Douglas County, where Mr. Baker had moved and murdered them. The State asserted that this second moving of the victims con stituted separate kidnappings. Mr. Baker’s above-described convictions were affirm ed on direct appeal. Mr. Baker filed his federal habeas petition on Apri l 27, 1995, raising a single issue: whether his trial and convictions forkidnapping in Douglas County violated the Double Jeopardy Clause of the United S tates Constitution. On October 17, 1997, Mr. Baker filed a motion for a st ay of his federal habeas proceeding, arguing that he was seeking state habea s relief for the first time on additional grounds 2 , and that if no relief was granted, he may wish to amend his federal petition to include the issues. The distri ct court granted the stay, noting-4-

that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) could potentially bar the refiling of the federal habeas action if the court dismissed it for failure to exhaust the potential claims. See R. Doc. 14. The district court revisited its decision and lifte d the stay on September 20, 2001, concluding that Mr. Baker’s potential additio nal federal habeas claims would be barred under AEDPA because he had failed t o timely raise them after AEDPA’s passage, and they asserted new theories of relief. See R. Doc. 21, at 1-2 (citing Woodward v. Williams , 263 F.3d 1135 (10th Cir. 2001), cert. denied , 122 S. Ct. 1442 (2002); Duncan v. Walker , 533 U.S. 167 (2001); and United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10th Cir. 2000)). The court concluded that Mr. Baker’s habeas petition was ther efore ripe for decision, as a stay could not salvage the untimely claims. We holdthat the district court properly lifted the stay. As to the merits of his petition for COA, Mr. Bak er may make a “substantial showing of the denial of a constitutio nal right” by demonstrating that the Double Jeopardy issue raised in his habeas petition and rejected by the district court is debatable among jurists, or that a court c ould resolve the issues differently, or that the question presented deserves further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). We have carefully r eviewed the record, the petition, and the applicable law. For substantially the same reasons-5-

stated by the district court in its order filed Mar ch 29, 2002, we conclude that the Double Jeopardy issue is not debatable among jurist s, that we would not resolve the issues differently, and that the question prese nted does not deserve further proceedings. Mr. Baker’s “Motion to Proffer” trans cripts from separate state-court actions is DENIED. We DENY a COA and D ISMISS the appeal.

Entered for the Court

Bobby R. Baldock Circuit Judge