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    Ralph M. Lepiscopo v. George E. Sullivan, Warden, 943 F.2d 57, 10th Cir. (1991)

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    Ralph Lepiscopo filed a habeas petition seeking to vacate his escape conviction on the basis that the state did not comply with the terms of his plea agreement. The district court agreed and vacated the conviction, but refused to bar the state from retrying Lepiscopo based on the same facts or grant his request for costs and attorney's fees. On appeal, the circuit court affirmed the district court's ruling, finding that retrial is not barred when a conviction is invalidated and that Lepiscopo failed to make a substantial showing of a denial of a federal right to justify a certificate of probable cause.

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    Ralph M. Lepiscopo v. George E. Sullivan, Warden, 943 F.2d 57, 10th Cir. (1991)

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    Ralph Lepiscopo filed a habeas petition seeking to vacate his escape conviction on the basis that the state did not comply with the terms of his plea agreement. The district court agreed and vacated the conviction, but refused to bar the state from retrying Lepiscopo based on the same facts or grant his request for costs and attorney's fees. On appeal, the circuit court affirmed the district court's ruling, finding that retrial is not barred when a conviction is invalidated and that Lepiscopo failed to make a substantial showing of a denial of a federal right to justify a certificate of probable cause.

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    Filed: 1991-09-05 Precedential Status: Precedential Citations: 943 F.2d 57 Docket: 91-2053

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    Ralph Lepiscopo filed a habeas petition seeking to vacate his escape conviction on the basis that the state did not comply with the terms of his plea agreement. The district court agreed and vacated the conviction, but refused to bar the state from retrying Lepiscopo based on the same facts or grant his request for costs and attorney's fees. On appeal, the circuit court affirmed the district court's ruling, finding that retrial is not barred when a conviction is invalidated and that Lepiscopo failed to make a substantial showing of a denial of a federal right to justify a certificate of probable cause.

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    94 views2 pages

    Ralph M. Lepiscopo v. George E. Sullivan, Warden, 943 F.2d 57, 10th Cir. (1991)

    Uploaded by

    Scribd Government Docs
    Ralph Lepiscopo filed a habeas petition seeking to vacate his escape conviction on the basis that the state did not comply with the terms of his plea agreement. The district court agreed and vacated the conviction, but refused to bar the state from retrying Lepiscopo based on the same facts or grant his request for costs and attorney's fees. On appeal, the circuit court affirmed the district court's ruling, finding that retrial is not barred when a conviction is invalidated and that Lepiscopo failed to make a substantial showing of a denial of a federal right to justify a certificate of probable cause.

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    of 2

    943 F.

    2d 57
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Ralph M. LEPISCOPO, Petitioner-Appellant,


    v.
    George E. SULLIVAN, Warden, Respondent-Appellee.
    No. 91-2053.

    United States Court of Appeals, Tenth Circuit.


    Sept. 5, 1991.

    Before McKAY, SEYMOUR and EBEL, Circuit Judges.


    ORDER AND JUDGMENT*
    SEYMOUR, Circuit Judge.

    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); 10th Cir.R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.

    Ralph M. Lepiscopo, a pro se state prisoner, brought a habeas petition seeking


    to set aside his escape conviction pursuant to a guilty plea. Lepiscopo
    contended that the State had not complied with the terms of the plea agreement.
    The district court agreed and ordered that plea vacated unless the State afforded
    Lepiscopo a new trial within six months. When the State failed to do so, the
    court vacated the conviction and sentence. However, the court held that
    Lepiscopo was not entitled to an order precluding the State from retrying him
    on the basis of the facts underlying the vacated conviction. The court also
    refused to issue a certificate of probable cause. On appeal, Lepiscopo argues
    that the court erred on refusing to bar further prosecution, and in refusing to

    grant his request for costs and attorney's fees.


    3

    It is the rule that "holding a conviction invalid and granting the writ do not
    generally bar retrial on the original charge." Bromley v. Crisp, 561 F.2d 1351,
    1364 (10th Cir.1977) (en banc), cert. denied, 435 U.S. 908, (1978); see also
    Bowen v. Maynard, 799 F.2d 593, 614 (10th Cir.), cert. denied, 479 U.S. 962
    (1986); Fisher v. Rose, 757 F.2d 789, 791 (6th Cir.1985). The fact that
    Lepiscopo's habeas action was resolved on the parties' stipulations does not
    render the general rule inapplicable. Lepiscopo is not presently incarcerated
    under the invalid conviction, nor will retrial otherwise infringe on his
    constitutional rights. See generally Latzer v. Abrams, 615 F.Supp. 1226
    (E.D.N.Y.1985). Accordingly, the district court was correct in holding that
    retrial is not barred.

    We also conclude that Lepiscopo has failed to make a substantial showing of


    the denial of a important federal right, see Barefoot v. Estelle, 463 U.S. 880
    (1983), and we therefore deny his application for a certificate of probable
    cause. 1

    AFFIRMED.

    The mandate shall issue forthwith.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

    Given Lepiscopo's in forma pauperis status and the fact that he has appeared
    either pro se or with appointed counsel throughout these proceedings, his
    request for costs and attorney's fees is frivolous

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