F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 29 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TYRONE LAMONT BAKER, SR.,
Petitioner - Appellant,
v. No. 02-3147
D.C. No. 95-CV-3184-DES
LOUIS E. BRUCE; THE ATTORNEY (D. Kansas)
GENERAL OF THE STATE OF
KANSAS,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Tyrone Baker, a state inmate, seeks a certificate of appealability
(“COA”) that would allow him to appeal from the district court’s order denying
relief on his habeas petition brought pursuant to 28 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 constitutional right” as required by
28 U.S.C. § 2253(c)(2), we deny his application for COA and dismiss the appeal.
I. Facts and proceedings
In 1991 Mr. Baker was convicted of two counts of first-degree murder and
two counts of aggravated kidnapping in Douglas County, Kansas, after having
been previously convicted of a separate count of first-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 Shawnee County, where Mr. Baker
murdered an elderly woman and burglarized her home. When three of the
1
Mr. Baker’s conviction for aggravated assault was overturned 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 motions. That issue was not raised in
his habeas petition that we review here, however, and will not be addressed.
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victim’s neighbors came to check on her, Mr. Baker kidnapped them and drove
them to an isolated location in Douglas County. One 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 victim who ran for help returned
with police officers, the other two victims were missing from the location where
Mr. Baker had left them. Their bodies were later found 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 constituted separate kidnappings.
Mr. Baker’s above-described convictions were affirmed on direct appeal.
Mr. Baker filed his federal habeas petition on April 27, 1995, raising a
single issue: whether his trial and convictions for kidnapping in Douglas County
violated the Double Jeopardy Clause of the United States Constitution. On
October 17, 1997, Mr. Baker filed a motion for a stay of his federal habeas
proceeding, arguing that he was seeking state habeas 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 district court granted the stay, noting
2
The state-post conviction petition was filed May 21, 1997. The grounds
include incompetence to stand trial; “forced insanity plea”; conflict of interest;
“private vindictive prosecution”; prosecutorial misconduct; and ineffective
assistance of counsel. R. Doc. 19, Ex. A.
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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 lifted the stay on September 20,
2001, concluding that Mr. Baker’s potential additional federal habeas claims
would be barred under AEDPA because he had failed to 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 therefore ripe for decision, as a
stay could not salvage the untimely claims. We hold that the district court
properly lifted the stay.
As to the merits of his petition for COA, Mr. Baker may make a
“substantial showing of the denial of a constitutional 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 could 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 reviewed the
record, the petition, and the applicable law. For substantially the same reasons
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stated by the district court in its order filed March 29, 2002, we conclude that the
Double Jeopardy issue is not debatable among jurists, that we would not resolve
the issues differently, and that the question presented does not deserve further
proceedings. Mr. Baker’s “Motion to Proffer” transcripts from separate
state-court actions is DENIED. We DENY a COA and DISMISS the appeal.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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