Logan v. Kansas Department of Corrections et al

Filing 3

ORDER ENTERED: Petitioner is granted twenty (20) days in which to satisfy the filing fee requirement by either paying the fee of $5.00 or submitting a properly completed and supported motion for leave to proceed in forma pauperis on court-provid ed forms. Within the same twenty-day period, petitioner is required to show cause why this action should not be dismissed without prejudice for failure to exhaust. Signed by Senior District Judge Sam A. Crow on 1/9/2012. (Mailed to pro se party Victor M. Logan by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VICTOR M. LOGAN,
Petitioner,
v.

CASE NO.

11-3189-SAC

KANSAS DEPARTMENT
OF CORRECTIONS,
et al.,
Respondents.
O R D E R
This pro se petition for writ of habeas corpus was filed
pursuant

to 28 U.S.C. § 2254 by an inmate of the Hutchinson

Correctional Facility, Hutchinson, Kansas.

Having examined the

materials filed, the court finds that petitioner has not exhausted
his state court remedies and that this action should be dismissed
without prejudice as a result.

FACTUAL BACKGROUND
Mr. Logan was convicted by a jury in Johnson County District
Court of four counts: aggravated liberties with a child less than
14, two counts of indecent liberties with a child greater than 14
but less than 16, and lewd and lascivious behavior sexual relations
with a child less than 16.

On June 2, 2010, he was sentenced to

consecutive terms totaling 177 months.
Petitioner’s

own

exhibits

from

the

state

records

in

his

criminal case indicate that on June 8, 2010, an order was entered
allowing trial defense counsel Mr. Toth to withdraw, and another
appointing

the

Kansas

Appellate

Defender’s

Office

(KADO)

to

represent him on appeal.1

Petitioner also exhibits a letter from

the KADO dated June 14, 2010, notifying him of their appointment and
advising that he would be hearing from them.

Petitioner’s trial

attorney failed to file a timely Notice of Appeal (NOA).2

The KADO,

despite having been appointed to represent him on appeal, failed to
react to that failure.

On September 16, 2010, his trial attorney

filed an NOA, apparently with a motion to docket the appeal out of
time.

Having heard nothing since the June letter, Mr. Logan wrote

a letter dated October 6, 2010, to Mr. Lawless at the KADO inquiring
as to the status of his appeal, but received no response.

In April

2011 petitioner’s prison counselor contacted the KADO, and they
stated they had no record of having been appointed in petitioner’s

1
Petitioner’s crimes, which were committed after July 1, 1993, fall
under K.S.A. 22-3608(c), which currently provides that the defendant has 14 days
“after the judgment of the district court to appeal.”
2
Petitioner has not numbered the numerous exhibits attached to his
Petition. At page 35 of his exhibits, he includes a copy of a letter written by
Toth in August 2011 to the KADO, which obviously was in response to questions
regarding the late NOA:

On June 9, 2010, which was within the 10 day window, I filed a motion
to withdraw which was granted by the Court and prepared an order
appointing the appellate defender to represent Mr. Logan. This was
also filed June 9, 2010. . . . Typically, I would have filed Mr.
Logan’s notice of appeal at the same time I filed the other two
documents. Obviously there was a clear intent to appeal Mr. Logan’s
case or I wouldn’t have requested your office be appointed to
represent him on his appeal. My failure to file the notice of appeal
was purely based on an oversight. I have represented many criminal
defendants who have proceeded to appeal their cases after trial.
This is the first instance I have ever neglected to file the notice
of appeal. As soon as I discovered that the notice of appeal was not
filed I filed his notice of appeal out of time on September 16, 2010.
I did this after consulting with one of your attorneys because I had
realized the error that was made.
The error was caused by
inadvertence and oversight. As you can tell I wouldn’t have filed a
document having your office appointed to represent Mr. Logan on his
appeal if in fact there was ever any decision not to pursue an
appeal. All I can say is that my typical practice is to file the
notice of appeal, order of withdraw, and order appointing the
appellate public defender at the same time and within the 10 day
window. Unfortunately, for reasons I still don’t know, the notice of
appeal was not filed at the same time.

2

case. After Mr. Logan provided proof, they responded that they were
seeking transcripts.

In August 2011, which was eleven months after

the NOA was filed, the KADO advised petitioner that his trial
attorney had filed an appeal “out of time” and that they would be
assisting him on appeal.

Page 49 of petitioner’s exhibits is the

KADO’s response dated September 9, 2011, to the order of the KCA to
show cause why the appeal should not be dismissed for lack of
jurisdiction because the notice was not filed within the statutory
time limits.
On-line appellate court records indicate that Mr. Logan’s
motion to docket his appeal out of time was granted.
Logan, App.Case No. 106542 (KCA).
is not evident.

State v.

However, the date of that ruling

“Notice of Action filed” was docketed on August 22,

2011; and “Appeal retained” was docketed on September 15, 2011. The
records also show that extensions of time have been granted for
additional transcripts.

On September 30, 2011, petitioner was

advised by the KADO that they were awaiting transcripts.

The Brief

of Appellant was due on December 12, 2011, and Mr. Logan moved for
and was granted an extension of time to file that brief to January
11, 2012.

GROUNDS
Petitioner sets forth three grounds in his Petition. As ground
one, he makes several allegations regarding the delay in the filing
of his pending direct appeal, but does not delineate what federal
constitutional

violation

he

is

asserting

based

upon

these

allegations. Under another ground he asserts, in conclusory fashion
only, that the KADO’s 11-month delay is unconstitutional, prejudices
3

him and violates due process.
As ground two, petitioner claims that the Johnson County
District Court violated several state statutes and his rights under
the Fourth and Fourteenth Amendments to the U.S. Constitution by
having him arrested and tried. In support of this claim, he alleges
that Magistrate Judge Vokins stated on July 11, 2008, that he had
“read the Complaint/Affidavit” and found probable cause to believe
Mr. Logan had committed the crimes charged.

Petitioner claims that

Magistrate Vokins lied because the Complaint/Affidavit was not
“manufactured, sworn, and signed” by Mr. Chavez and Assistant
District Attorney Stein until the next day, July 12, 2008.

He

asserts that, as a result, the Johnson County Court was without
jurisdiction to have him arrested, tried and convicted.
As ground three, petitioner alleges that the KADO is not
addressing “these facts.”
Mr. Logan asks this court “to intervene on Ground 1,2,3, for
remedy/relief from illegal conviction and illegal incarceration.”
The court is also asked to “order the Ks. Appellate Defenders Office
along with the State to decide appeal within 60 days or release” him
pending the disposition of his appeal.
Under the form question on exhaustion, he states that he knows
of “noone else to ask to move the Appellate Defenders Office for
remedy for their . . . delay to representing (him) with (his) right
to a timely appeal.”

FAILURE TO SATISFY FILING FEE
The filing fee for a federal habeas corpus action is $5.00.

4

Petitioner has not paid the fee or submitted a properly supported
motion to proceed in forma pauperis (IFP) upon court-provided
forms.3

Neither the affidavit nor the financial information from a

single

month

recently

submitted

requirements in § 1915(a).

by

Mr.

Logan

satisfies

the

This action may not proceed further

until the filing fee is satisfied in one of these two ways.
Petitioner is given time to submit a proper motion and adequate
financial

information

in

support

or

to

pay

the

fee.

He

is

forewarned that if he fails to satisfy the fee within the time
allotted, this action may be dismissed without prejudice and without
further notice.

FAILURE TO EXHAUST STATE REMEDIES
Federal habeas corpus relief is not available to a state
prisoner “unless it appears that the applicant has exhausted the
remedies available in the courts of the State, or that there is an
absence of available State corrective process; or circumstances
exist that render such process ineffective to protect the rights of
the applicant.”

28 U.S.C. § 2254(b)(1).

Mr. Logan has clearly not

exhausted his available state court remedies, since his direct
appeal is currently pending.

Nor are his allegations sufficient to

establish that the exhaustion prerequisite should be excused in this
case.
“[I]nexcusable or inordinate delay by the state in processing
3
28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil
action without prepayment of fees submit an affidavit described in subsection
(a)(1), and a “certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately
preceding the filing” of the action “obtained from the appropriate official of
each prison at which the prisoner is or was confined.” 28 U.S.C. 1915(a)(2).

5

claims for relief” may render the state process ineffective to
protect the petitioner’s rights and excuse exhaustion.

Harris v.

Champion, 15 F.3d 1538, 1555 (10th Cir. 1994)(citations omitted);
Hill v. Reynolds, 942 F.2d 1494, 1496 (10th Cir. 1991).

It has been

more specifically held that “delay in adjudicating a direct criminal
appeal beyond two years from the filing of the notice of appeal
gives rise to a presumption that the state appellate process is
ineffective.”

Harris, 15 F.3d at 1556.

In Harris the Tenth Circuit

held:
that the state appellate process should be presumed to be
ineffective
and,
therefore,
exhaustion
should
presumptively be excused, when a petitioner's direct
criminal appeal has been pending for two years without
resolution
absent
a
constitutionally
sufficient
justification by the State. See Burkett v. Cunningham,
826 F.2d 1208, 1218 (3d Cir.1987)( Burkett I )(“[W]here a
petitioner has demonstrated inordinate delay, we have
placed the burden on respondents to demonstrate why
further resort to the state courts should be required.”).
Id.
The facts alleged by petitioner and garnered from the state
records establish that there was an unfortunate, unnecessary delay
in initiating his direct appeal.

However, petitioner does not

allege facts establishing that “the state process, now begun, will
not provide him with an effective remedy.”

Hunter v. McKune, 208

Fed.Appx. 730, 733 (10th Cir. 2008)(unpublished).4

Since Mr. Logan

has not established that his state remedies are ineffective, he is
required to exhaust all his claims in the state courts prior to
seeking habeas relief in federal court.

4

Unpublished cases are cited as persuasive authority and not as binding

precedent.

6

REQUEST FOR EXPEDITED APPEAL OR RELEASE
Petitioner seeks an order by this court requiring the KADO and
the State to decide his direct appeal within 60 days or that he be
released.

Obviously, it is neither the State nor the KADO that

decides a direct appeal, but in this instance the Kansas Court of
Appeals.
A remedy that has been occasionally provided by a federal
habeas court that has found inordinate, prejudicial delay in a state
appeal is “consideration of that direct appeal.”

Id. at 733.

The

Tenth Circuit has held that “inordinate delay in adjudicating a
defendant’s direct criminal appeal could give rise to an independent
due process violation.”

Harris, 15 F.3d at 1557; see U.S. v.

Yehling, 456 U.S. 1236, 1243 (10th Cir. 2006).

Like in Yehling, the

delay in this case occurred after petitioner’s sentence was imposed,
but before a notice of appeal was filed.

In examining such a delay,

the Circuit has applied the balancing test established by the
Supreme Court in Barker v. Wingo, 407 U.S. 514, 526 (1972).

Under

Barker, four factors are to be assessed and balanced:
(1) the length of delay; (2) the reason for the delay; (3)
the defendant’s assertion of his right; and (4) prejudice
to the defendant. Id. None of the factors are necessary
or sufficient; rather, the factors are related and should
be considered together with other relevant circumstances.
Id. at 533, 92 S.Ct. 2182.
Id.; Harris, 15 F.3d at 1559 (“Although Barker addressed only a
defendant’s

right

to

a

speedy

trial,”

the

Tenth

Circuit

“subsequently adopted the Barker analysis in determining whether a
defendant’s due process right to a timely direct criminal appeal in
state court had been violated.”) .
“The first factor, length of delay, functions as a ‘triggering
7

mechanism’.”

Id. (citing Barker, 407 U.S. at 530).

“The remaining

factors are examined only if the delay is long enough to be
presumptively prejudicial.”

Id.

Mr. Logan was sentenced on June 2, 2010. His NOA with a motion
to file appeal out of time was filed three months late on September
16, 2010.

The motion appears to have been granted in August or

September, 2011.

Orders for transcripts were immediately filed.

The court cannot find from these facts that, at this juncture, the
delay in this case was “presumptively prejudicial.”
the other Barker factors need not be examined.

Accordingly,

“Therefore, absent

a future delay that either warrants excusing exhaustion or granting
a conditional writ” to expedite his appeal, Mr. Logan “must exhaust
his state remedies before seeking relief in federal court.”

Id.

The court notes that even if the remaining Barker factors are
considered, they do not appear to weigh in petitioner’s favor. With
regard to the first factor, the reason for the delay cannot be
wholly attributed to the State, given petitioner’s allegations that
the delay resulted from the negligence of his trial attorney or his
appointed appellate defender.

Under the third factor, the court is

to assess whether a defendant asserted his right to appeal without
unreasonable delay.

Petitioner alleges that he contacted the KADO

on two occasions over nearly a year.

It does not appear that he

asserted his right to the timely filing of a Notice of Appeal in the
state court.
appellate

Nor does it appear that he has moved the state

court

for

expedited

processing

of

his

appeal.

A

defendant’s burden to actively assert his right “is not satisfied
merely by moving to dismiss after the delay has already occurred.”
Id.

(citation omitted).
8

The final Barker factor entails analysis of prejudice to the
defendant resulting from the delay. Id. (citing Barker, 407 U.S. at
532).

The interests protected are the same as for speedy trial:

the prevention of oppressive incarceration, minimizing anxiety and
concern of the defendant, and limiting the possibility that the
defense will be impaired.

Id. at 1244-45.

Mr. Logan has not

alleged a single fact showing what prejudice has resulted from the
delay.

Id. at 1245.

Petitioner was allowed to file an appeal out of time.5

A 3 to

11-month delay in effectuating his direct appeal is not shown to
have amounted to a deprivation of the appellate process to the
extent

in either

Harris

or

Yehling,

petitioner’s lengthy sentence.

particularly in

light of

The court concludes that Mr. Logan

is not entitled at this time on these facts to a conditional writ of
habeas

corpus

based

upon

his

appointed

counsels’

delay

in

effectuating his direct appeal.

CLAIM FOR RELEASE FROM ILLEGAL CONFINEMENT
Mr. Logan also asks this court “to intervene” on his claims of
“illegal conviction and confinement.”

Even if petitioner had

alleged facts sufficient to establish the Barker factors and a due
process violation, he would not be entitled to invalidation of his
conviction and release from state confinement.
F.3d 815, 819 (10th Cir. 1998).

U.S. v. Wiktor, 146

“[O]nce a defendant has been

convicted, the rights of society increase in proportion to the

5

“When a petitioner has been granted an appeal out of time, the length
of the appellate process should be measured from the entry of that order, unless,
or course, delay in perfecting the appeal in the first instance is attributable
to the State.” Harris, 15 F.3d at 1555 n. 9.

9

rights of the defendant;” so that “[p]ost-conviction prejudice
therefore ‘must be substantial and demonstrable’.” Barker, 407 U.S.
at 1244-45 (citations omitted).

As noted, Mr. Logan was convicted

as well as sentenced prior to the delay at issue.

Thus, the

validity of his current confinement had already been established at
trial. Any prejudice that might result from the delay in initiating
his direct appeal must be presented to the state appellate courts in
the first instance.6
Petitioner is given time to show cause why this action should
not be dismissed for failure to exhaust state court remedies.

If he

fails to show cause within the time allotted, this action may be
dismissed without notice.
IT IS THEREFORE ORDERED that petitioner is granted twenty (20)
days in which to satisfy the filing fee requirement by either paying
the fee of $5.00 or submitting a properly completed and supported
motion for leave to proceed in forma pauperis on court-provided
forms.
IT IS FURTHER ORDERED that within the same twenty-day period
petitioner is required to show cause why this action should not be
dismissed, without prejudice, for failure to exhaust.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
Dated this 9th day of January, 2012, at Topeka, Kansas.

6

Petitioner is not entitled to any injunctive or other relief in this
federal habeas corpus petition directly against the Kansas Appellate Defender’s
Office or his appointed trial attorney. The only relief available in a habeas
action is release from illegal confinement. Furthermore, the state appellate
courts rather than this federal habeas court have appellate or mandamus power over
state courts or agencies.

10

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

11