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

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.

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.