* This order and judgment is not binding precedent, except under the

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

### JUN 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GAVIN D. SCOTT, Petitioner - Appellant, vs. HON. DAVID W. KENNEDY, District Court Judge, Division 4, 18th Judicial District for the State of Kansas; NOLA FOULSTON, District Attorney for Sedgwick County; STATE OF KANSAS; MIKE HILL, Sedgwick County Sheriff, Respondents - Appellees. No. 99-3173 (D.C. No. 99-3198-DES) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , MCKAY , and LUCERO , Circuit Judges.
Mr. Scott, an inmate under the control of the Kansa s Department of Corrections, appeals from the district court’s deni al of his habeas petition, 28 U.S.C. § 2241. Mr. Scott’s petition alleged that asecond sentencing hearing- 2 -

would violate the Double Jeopardy clause of the Con stitution, violate the Eighth Amendment, and violate his Due Process rights. Ourjurisdiction arises under 28 U.S.C. § 1291, and we remand to the district court to dismiss the petition without prejudice for failure to exhaust state remedies. Mr. Scott was convicted by a jury of capital murder , among other crimes, and sentenced to death on August 21, 1998. On Febr uary 12, 1999, the trial court found that Mr. Scott had been denied a fair and imp artial sentencing hearing due to the presence of a Bible and other religious item s present during jury deliberations. The court set aside Mr. Scott’s death sentence and ordered a new sentencing hearing. On May 18, 1999, Mr. Scott filed a Petition for a W rit of Mandamus with the Kansas Supreme Court, requesting that court to order the trial court to cancel the second sentencing hearing and sentence him to l ife as a matter of law. On June 7, 1999, Mr. Scott filed the instant § 2241 mo tion in federal district court. The next day, the Kansas Supreme Court denied manda mus relief. On June 9, 1999, the district court denied Mr. Scott’s habeas petition on the merits. Subsequently, both the district court and this court denied emergency motions to stay the second sentencing hearing, and that hearin g was held on June 14, 1999, at which time Mr. Scott again received a sentence of d eath. Mr. Scott’s direct criminal appeal of his convictio n and sentencing is- 3 -

currently pending before the Kansas courts. While appellant was not foreclosed from seeking federal intervention prior to his seco nd sentencing hearing, because that relief was denied and Mr. Scott has now been f ormally sentenced, he cannot maintain this action in federal court until the Kan sas Supreme Court has had an opportunity to address his direct appeal. See Coleman v. Thompson , 501 U.S. 722, 731 (1991) (exhaustion requirement grounded inprinciples of comity; state courts should be given the first opportunity to cor rect constitutional violations); Capps v. Sullivan , 13 F.3d 350, 354 n.2 (10th Cir. 1993) (“‘federal courts should abstain from the exercise of [§ 2241] jurisdiction if the issues raised in the petition may be resolved either by trial on the mer its in the state court or by other state procedures available to the petitioner.’” (ci tation omitted)). The wisdom of this doctrine is apparent in this cas e, because the state court, which has yet to rule on Mr. Scott’s appeal, could overturn his conviction or sentence on a number of grounds, rendering our o pinion merely advisory. We remand to the district court to dismiss the petitio n without prejudice for failure to exhaust state remedies.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge