Cheatham (ID 55931) v. Cline et al

Filing 3

ORDER ENTERED: Petitioner is granted twenty (20) days from the date of this order to show cause why the petition should not be dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 1/30/2013. (Mailed to pro se party Phillip D. Cheatham, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PHILLIP D. CHEATHAM, JR,
Petitioner,
v.

CASE NO. 12-3249-SAC

SAM CLINE, et al.,
Respondents.

O R D E R
Before the court is petitioner’s pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254.
Petitioner

was

convicted

on

2003

charges

of

murder,

attempted murder, aggravated battery, and criminal possession
of a firearm.

A sentence of death was imposed in 2005.

In

petitioner’s direct appeal, the Kansas Supreme Court remanded
the matter to the state district court for an evidentiary hearing
on

petitioner’s

counsel.

claim

of

ineffective

assistance

of

trial

Following a 2009 stipulation by the parties regarding

defense counsel’s performance, the state district court in 2010
upheld the guilt phase of petitioner’s trial and ordered a new
jury determination in the sentencing phase in the capital case.
Petitioner’s appeal from that decision by the state district
court judge was still pending when petitioner filed the instant
petition in federal court seeking his immediate release and the
dismissal of all 2003 charges with prejudice.
On January 25, 2013, the Kansas Supreme Court reversed
petitioner’s convictions and ordered a new trial.

See State v.

Cheatham, __ Kan. __, 2013 WL 276245 (January 25, 2013).

Accordingly, to the extent petitioner seeks habeas corpus
relief on allegations of constitutional error in his criminal
trial and subsequent evidentiary hearing, the petition is now
subject to being dismissed as moot because these allegations no
longer present a case or controversy for judicial resolution.
See

Spencer

v.

Kemna,

523

U.S.

1,

7

(1998)(discussing

case-or-controversy requirement in Article III, Section 2, of
the United States Constitution).
Moreover, to the extent petitioner contends he is entitled
to habeas corpus relief on an independent claim of being denied
due process by the state court’s delay in deciding petitioner’s
direct appeal, this claim is defeated because petitioner has
already received any relief this court could grant on such a
claim.

As the Tenth Circuit explained in Hayes v. Evans:

“[A] habeas petitioner whose direct appeal had yet to
be decided by the state court could obtain habeas relief
if he could establish that delay in adjudicating his
direct appeal had violated his due process rights. One
way a petitioner could establish such a due process
violation would be by asserting colorable state or
federal claim that would warrant reversal of his
conviction and demonstrating that excessive delay in
adjudicating his appeal had impaired his defense on
retrial. . . . [T]he most appropriate form of habeas
relief in such circumstances would be to grant a
conditional writ directing the state to release the
petitioner if it did not decide his appeal within a
specified period. Another option would be for the
district court to excuse exhaustion and address the
merits of the petitioner’s federal challenges to his
conviction and sentence.”
70 F.3d, 85, 86 (10th Cir.1995)(citing Harris v. Champion, 15
F.3d 1538, 1566-67 (10th Cir.1994)).

The court thus directs petitioner to show cause why the
instant petition should not be deemed moot and dismissed without
prejudice.

The failure to file a timely response may result in

the dismissal of the petition for the reasons stated herein
without further prior notice.
IT IS THEREFORE ORDERED that petitioner is granted twenty
(20) days from the date of this order to show cause why the
petition should not be dismissed without prejudice.
IT IS SO ORDERED.
DATED:

This 30th day of January 2013 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge