Opinion
Case No. 01-3367-DES
December 21, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Hutchinson Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On September 27, 1999, petitioner pled guilty and was convicted of three counts of distributing cocaine in violation of K.S.A 65-4161(a). Petitioner was sentenced to 46 months incarceration.
Petitioner's state court appeal has been pending since his plea attorney filed a notice of appeal on November 22, 1999. No brief was submitted, nor was petitioner notified that a notice of appeal was filed. Although the Kansas Appellate Defender's Office was appointed to represent petitioner on December 6, 1999, they did not receive notification of their appointment until January 16, 2001, fourteen months after the notice of appeal was filed.
On January 31, 2001, the state moved to dismiss petitioner's appeal because it was not docketed within twenty-one days after the notice of appeal was filed. On February 20, 2001, the Kansas Appellate Defender filed a motion to docket the appeal out of time and this motion was granted by the Kansas Court of Appeals on March 5, 2001. On March 24, 2001, petitioner filed a disciplinary complaint against several attorneys in the Kansas Appellate Defender's office. Because this complaint created a conflict of interest, the Kansas Appellate Defender's office was allowed to withdraw from petitioner's case on April 30, 2001.
On May 8, 2001, Steven Mank was appointed as appellate counsel for petitioner. However, because Mr. Mank's law partner had represented petitioner's co-defendant, Mr. Mank was allowed to withdraw due to a conflict of interest on July 31, 2001. On August 13, 2001, Michael Whalen was appointed to represent petitioner with briefing due on September 14, 2001. Mr. Whalen has since been granted three extensions of time. Petitioner's brief was filed in the Court of Appeals on December 13, 2001.
In the underlying § 2254 petition, petitioner challenges the sentencing court's failure to consider placement in an honor camp and prosecutorial delay in charging petitioner. Petitioner also asserts that the delay experienced in the adjudication of his appeal not only excuses the requirement that he exhaust state remedies prior to filing a § 2254 petition, but also establishes an independent due process violation. Respondents have filed an Answer and Return (Doc. 6). Petitioner filed a pro se response to the Answer and Return (Doc. 8), with his court-appointed counsel subsequently filing a supplemental reply (Doc. 12).
On December 20, 2001, a telephone conference was held to determine the status of petitioner's pending state appeal and to hear argument as to whether petitioner has established a due process violation due to the delay in petitioner's state appeal. Appearing by telephone at the conference were the following: Petitioner Roland S. Bishop, his court-appointed counsel B. Kay Huff, and Jared S. Maag for the respondents.
At that hearing, the parties expressed agreement concerning the following: (1) petitioner's current release date is no later than July 8, 2002; (2) the issues raised in petitioner's direct appeal concern matters of state law; and (3) given the Kansas Court of Appeals' case load, it is unlikely that his state appeal will be decided prior to his release.
DISCUSSION
A federal court is limited to reviewing issues of federal law presented in a petition brought pursuant to 28 U.S.C. § 2254. Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994). The substantive issue presented within this § 2254 petition is whether the state court erred in failing to consider placement of petitioner at the Labette Correctional Conservation Camp ("LCCC") pursuant to K.S.A. 21-4603d(a)(11) (1998 Supp.). Whether the sentencing judge complied with this state statute involves interpretation of state law, a matter outside federal habeas review. While errors of state law are not subject to federal review, appellate delay in adjudicating petitioner's direct appeal may give "rise to an independent due process claim." Id. at 1557.
The Tenth Circuit has adopted the factors utilized in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine whether delay in the appellate process constitutes an independent due process violation. Hill v. Reynold, 942 F.2d 1494, 1497 (10th Cir. 1991). The Barker balancing test considers the following four factors:
(1) length of the delay;
(2) reasons for the delay;
(3) defendant's assertion of his rights; and
(4) prejudice to the defendant.
A. THE LENGTH OF THE DELAY IS EXCESSIVE
"[A] two-year delay in adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy the first factor in the balancing test." Harris, 15 F.3d at 1560. However, the two-year period is merely a presumption, and not inflexible: "delay of less than two years may be excessive in some cases and delay of more than two years may not be excessive in other cases." Id. at 1547.
The Tenth Circuit has found "that an eighteen month delay in docketing an appeal before the state supreme court was enough to excuse exhaustion in the absence of facts and circumstances justifying that delay." Id. (referring to Way v. Crouse, 421 F.2d 145 (10th Cir. 1970)). In addition, the length of the sentence imposed, though not controlling, may be a factor in determining whether a delay is excessive. Harris, 15 F.3d at 1561 (stating "a case in which a very short sentence was imposed may warrant more expedited treatment").
Petitioner experienced a fourteen month delay in the docketing of his appeal and his opening brief was not filed until December 13, 2001 (over twenty-four months after the notice of appeal was filed). Furthermore, petitioner's sentence of 46 months may warrant expedited treatment. Petitioner has already served more than half of his sentence, and it is likely that petitioner will complete his sentence before his appeal is adjudicated. Therefore, petitioner has experienced an excessive delay in the adjudication of his appeal.
B. THE DELAY IS NOT JUSTIFIED
Circumstances such as "a particularly complex case may warrant a more lengthy appellate process." Id at 1562. However, attorney backlog, understaffing, or possible mismanagement are not sufficient justification for delay, and such delay is attributable to the state. Id.
Petitioner's case is not unusually complex, and neither the record nor the state offer any explanation for the initial fourteen month delay in the docketing of petitioner's appeal. Because no reason is provided for this initial fourteen month delay, the court must assume that there is no constitutionally sufficient justification for it. U.S. v. Varah, 92 F.3d 1197 (10th Cir. 1996) (Table).
Respondents contend the remaining ten months of delay should be attributed to petitioner because he filed a disciplinary complaint against the appellate defender's office. Although the complaint undoubtedly caused the Kansas Appellate Defender's office to withdraw from petitioner's case and contributed to the delay, new counsel was appointed just one month after the Kansas Appellate Defender's office moved to withdraw. Therefore, only one or two months of the delay can be attributed to petitioner. In addition, it was entirely reasonable for petitioner to file a complaint alleging inordinate delay as he had been waiting sixteen months and no brief had been filed on his behalf. Although petitioner had a valid reason for filing his disciplinary complaint, respondents have not articulated a valid reason for their delay.
C. PETITIONER'S RIGHTS HAVE BEEN ADEQUATELY ASSERTED
Petitioner has adequately asserted his rights by filing a federal habeas petition. "The filing of . . . federal habeas petitions constitutes a sufficient assertion of petitioner's respective rights to a timely appeal. Harris, 15 F.3d at 1563. "Absent evidence that a petitioner affirmatively sought or caused delay in the adjudication of his or her appeal, this third factor should weigh in favor of finding a due process violation." Id.
As discussed above, the record does not support a finding that petitioner sought or unjustifiably caused the delay.
D. PETITIONER SUFFERED PREJUDICE FROM THE DELAY IN ADJUDICATING PETITIONER'S APPEAL
"Whether a petitioner should be excused from exhausting state remedies due to delay in adjudicating his state appeal is a separate inquiry. . . . A showing of prejudice is necessary only for the due process claim." Carpenter v. Young, 50 F.3d 869, 871 (10th Cir. 1995). Prejudice may be inferred if appellate delay is inordinate or excessive, but petitioner usually must "make some particularized showing of prejudice to establish a due process violation." Harris, 15 F.3d at 1547. Prejudice typically takes one of three forms where appellate delay is alleged: (1) impairment of the grounds for appeal; (2) anxiety or concern; or (3) oppressive incarceration. Id at 1563.
In order to establish prejudice resulting from anxiety, petitioner must assert a colorable state or federal claim that would warrant reversal of the petitioner's conviction or a reduction of sentence. Id. at 1564. A colorable claim of reduction in sentence can include a claim that would affect "the quality of the petitioner's incarceration by making the petitioner eligible for a lower level of security or for rehabilitative programs." Id. at 1565, n. 17 (citations omitted).
Petitioner has asserted at least one ground which presents a colorable claim under Kansas law. At sentencing, the trial court failed to consider placing petitioner at LCCC, an error which requires resentencing. State v. Schick, 971 P.2d 346, 348 (Kan. Ap. 1998). Because Labette is a minimum security "boot camp", the trial court's alleged error may have affected the quality of petitioner's incarceration. See State v. Adams, 30 P.3d 317, 318 (Kan.App. 2001) (describing the nature of LCCC). In addition, if petitioner had been sentenced to LCCC and successfully completed the program, he would have been entitled to release after six months. Therefore, petitioner has experienced prejudice in the form of anxiety due to the inordinate delay in the adjudication of his appeal.
CONCLUSION
Petitioner's appeal has been pending for over two years, with the opening brief just having been filed. Petitioner has served most of his sentence during this delay. Although petitioner may have contributed to a fraction of this delay by filing a disciplinary complaint against the office of the Appellate Defender, the bulk of the delay is attributable to the state and respondents have failed to set forth a constitutionally sufficient reason for the delay. The delay has been prejudicial to petitioner because he does have a colorable claim for relief under Kansas law. Therefore, petitioner's due process rights have been violated by the inordinate delay in the adjudication of his appeal. Relief from inordinate delay is not immediate release from custody or invalidation of the underlying conviction, but the consideration of petitioner's appeal. U.S. v. Wiktor, 146 F.3d 815, 819 (10th Cir. 1998). The appropriate remedy is to grant a conditional writ which requires the State to release petitioner only if the State does not decide petitioner's appeal within a specified period. Harris, 15 F.3d at 1566-67. Respondent indicated at the hearing that the State would not contest a conditional writ due to the appellate delay experienced by petitioner.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that a conditional writ be granted, ordering the State to decide petitioner's appeal within sixty days or release petitioner from his state sentence pending disposition of petitioner's appeal.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
A copy of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.