Opinion
Case No. 01-3326-DES
September 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 which the court construes as a petition filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On January 14, 2000, petitioner was convicted of one count of criminal sodomy and sentenced to imprisonment for 230 months. Petitioner filed a notice of appeal on January 20, 2000. An opening brief was filed on January 5, 2001; and on April 27, 2001, petitioner filed his pro se supplemental brief. The appeal is still pending in the Kansas Court of Appeals.
DISCUSSION
In this habeas proceeding, petitioner asserts his continued imprisonment is illegal because the delay in the state appeal process has denied him access to the courts, equal protection, due process and the effective assistance of appellate counsel.
In order to satisfy the exhaustion requirement set forth in 28 U.S.C. § 2254(b)(1), a petitioner must first present the issues raised in the federal habeas action to the Kansas Courts either by direct appeal or by the state post-conviction process pursuant to K.S.A. 60-1507. Picard v. Connor, 404 U.S. 270 (1971). Before proceeding in a federal action, a petitioner must present the issues in the state courts in a posture allowing full and fair consideration. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Smith v. Atkins, 678 F.2d 883, 885 (10th Cir. 1982). The exhaustion requirement is not satisfied unless all the claims asserted in the habeas petition have been presented for state court review by filing an appeal with the Kansas Court of Appeals and a petition for review with the Kansas Supreme Court. Petitioner, however, has failed to meet the exhaustion requirement as his direct appeal is currently pending in the Kansas Court of Appeals.
Petitioner asserts the exhaustion requirement should be waived in this instance as petitioner's appeal has been pending for 18 months thus violating petitioner's due process rights. After reviewing the file, the court finds petitioner has failed to give sufficient reasons to justify waiving the exhaustion requirement.
"There is a rebuttable presumption that the State's process is not effective and, therefore, need not be exhausted, if a direct criminal appeal has been pending for more than two years without final action by the State." Harris v. Champion, 15 F.3d 1538, 1546 (10th Cir. 1994). However, the two-year period is not a bright line rule, and "circumstances may warrant refusing to excuse exhaustion even after a delay of more than two years." Id.
The Tenth Circuit has adopted the format used in Barker v. Wingo, 407 U.S. 514, 530 (1972) to "determine whether a defendant has been denied due process in the timely adjudication of an appeal." 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. 407 U.S. at 514.
Petitioner's appeal has been pending 18 months which is not an inordinate or excessive amount of time. Appellate counsel for petitioner moved for an extension due to the complexity of the issues which justifies some of the delay experienced. Harris 15 F.3d at 1562 (stating "a particularly complex case may warrant a more lengthy appellate process"). In addition, the length of the sentence imposed may be a factor in determining whether a delay is excessive. Id. at 1561 (stating "a case in which a very short sentence was imposed may warrant more expedited treatment"). Petitioner's sentence of 230 months does not warrant expedited treatment.
Petitioner has adequately asserted his rights by filing a federal habeas petition. However, petitioner has suffered no undue prejudice by the delay. 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." Id. at 1547. Prejudice typically takes one of three forms where appellate delay is alleged: (1) oppressive incarceration; (2) anxiety or concern; and (3) impairment of the grounds for appeal.
First, in order to establish oppressive incarceration or anxiety or concern, petitioner must show that his incarceration is wrongful. In addition, "petitioner must show some oppressiveness unique to his . . . situation that is directly attributable to the excessive delay in adjudicating the petitioner's appeal." Id. at 1565. Petitioner has not shown that his incarceration is wrongful or that any unique oppressiveness exists. Finally, in order to establish that inordinate delay has impaired petitioner's grounds for appeal, petitioner must "assert a colorable state or federal claim that would warrant reversal of his . . . conviction." Id. at 1564. Petitioner has not asserted any specific grounds warranting reversal of his conviction to this court at this time. In addition, "in most cases, particularized prejudice that occurs during the first two years that an appeal is pending will not support a due process violation because the prejudice would have occurred even in the absence of any excessive delay in adjudicating the appeal." Id.
Finding no basis upon which to excuse exhaustion of state court remedies, the petition for writ of habeas corpus should be dismissed without prejudice.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed without prejudice to allow petitioner to exhaust his state court remedies.
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. A copy of this Report and Recommendation shall also be mailed to the office of the Attorney General for the State of Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.