Logan v. Kansas Department of Corrections et al

Filing 5

ORDER ENTERED: This action is dismissed without prejudice because petitioner has not exhausted state court remedies on any of his claims. Petitioner's motion 2 for leave to proceed in forma pauperis is denied as moot because he paid the filing fee. Signed by Senior District Judge Sam A. Crow on 3/29/2012. (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
On January 9, 2012, this court entered an order requiring
petitioner to show cause why this action should not be dismissed
because he currently has a direct criminal appeal pending in state
court and has obviously not exhausted state court remedies on any of
the claims raised in his federal petition.

Mr. Logan has filed a

Response (Doc. 4) in which he repeats his argument that he should be
allowed to immediately proceed in federal court because his direct
appeal was improperly delayed for over a year.

In response to the

court’s finding that this delay was not presumptively prejudicial,
he adds his projection that it will take over two years for his
direct appeal to be completed.

The court is not convinced by

petitioner’s arguments, and dismisses this action without prejudice
for failure to exhaust.
Mr. Logan does not dispute that he was sentenced on June 2,
2010. The court takes judicial notice of the docket in petitioner’s
state criminal appeal, Kansas v. Logan, App.Ct. No. 106542 (D.Ct.
No. 08 CR 1685).

This court record shows that a Motion to Docket

Appeal out of time was filed on his behalf in the Kansas Court of
Appeals (KCA) on August 9, 2011, that a Notice of Appeal and

Docketing Statement were submitted on or before August 22, 2011, and
that orders for transcripts were entered on that date as well.

The

docket also shows that on September 1, 2011, a Show Cause Order was
entered, apparently as to why the appeal should not be dismissed,
and that Logan’s Response to this Order was filed September 7, 2011.
The State’s Response was filed on September 12, 2011.

The docket

entry on September 15, 2011, indicates “Appeal retained.” The court
finds from these entries that Mr. Logan currently has a direct
appeal pending in the KCA in which the Notice of Appeal was docketed
13 to 14 months late.

See id.

The court further notes from the docket that any delays since
the appeal was initiated do not appear inordinate or attributable
all to the State.

The Brief of Appellant was initially due on

December 12, 2011, but Mr. Logan moved for and was granted an
extension of time to file his brief to January 11, 2012, then
granted a second extension to February 17, 2012, and a third
extension to March 19, 2012.

Certainly, Mr. Logan cannot request

extensions of time in the state appellate court and then seek
federal court review based upon those delays in the appellate
process.

The current docket indicates that Logan’s Brief has been

received and Appellee’s Brief is due April 23, 2012.
The court remains convinced that Mr. Logan has not exhausted
his available state court remedies on any of his claims and that his
allegations

are

insufficient

to

establish

that

prerequisite should be excused in this case.

the

exhaustion

As Mr. Logan was

informed in the court’s prior order, the grounds he has set forth in
his federal habeas corpus petition may not be heard in federal court
until they have been fully exhausted in the courts of the states.
2

He makes no attempt to dispute that these claims have not been
presented to and determined by the highest state court, either on
direct appeal or by way of post-conviction proceedings.

If Mr.

Logan believes his appointed appellate counsel has been or is being
constitutionally ineffective for seeking extensions of time, due to
a

conflict

of

interest,

or

on

any

other

grounds,

those

are

additional claims that he must present to the state courts before
they

may

be

litigated

in

a

federal

habeas

corpus

petition.

Likewise, Mr. Logan’s claims that his state direct appeal has been
inordinately delayed and that he has been prejudiced as a result
must be presented to the state courts in the first instance.
Mr. Logan has not alleged any facts establishing that “the
state process, now begun, will not provide him with an effective
Hunter v. McKune, 208 Fed.Appx. 730, 733 (10th Cir.

remedy.”

2008)(unpublished).1

He does not suggest any manner in which he

will be prevented from effectively prosecuting his appeal or explain
how his appeal has otherwise been prejudiced due to the initial
delay.

See Harris v. Champion, 15 F.3d 1538, 1547 (10th Cir. 1994).

It is difficult for one who has been convicted and sentenced to a
lengthy sentence to show prejudice from a post-conviction delay.
See U.S. v. Gould, ___F.3d___, 2012 WL 627964 (10th Cir. Feb. 28,
2012).

The delay in this case occurred before petitioner’s appeal

was properly initiated, and it was not “presumptively prejudicial.”
Id. (citing Barker, 407 U.S. at 530).

Thus, the court still need

not weigh the remaining Barker factors.

Nor is the court convinced

by petitioner’s arguments that all remaining Barker factors weigh in
1

Unpublished cases are cited as persuasive authority and not as binding

precedent.

3

his favor.

For example, under the third factor, the court is to

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

Petitioner’s conclusory statements that he

contacted the public defender and the court regarding his appeal is
not sufficient. Nor is his filing of a disciplinary complaint shown
to have been a diligent assertion of his right to appeal.

Mr. Logan

still fails to indicate that he has moved the appellate court for
expedited processing of his appeal.

The court concludes that the

delay of 12 to 14 months in docketing Mr. Logan’s direct criminal
appeal has not been shown to have amounted to a deprivation of the
appellate process, particularly in light of Mr. Logan’s lengthy
sentence.

Petitioner

has

not

addressed

this

court’s

prior

reasoning:
“[O]nce a defendant has been convicted, the rights of
society increase in proportion to the 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.
Mr.

Logan

has

not

competently

disputed

the

court’s

previous finding that he has been allowed to file and docket his
direct appeal. That is the appropriate relief for a delayed appeal,
and the relief he might have expected had he shown inordinate delay
and had it not already been effectuated.

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
state conviction and release from confinement.

U.S. v. Wiktor, 146

F.3d 815, 819 (10th Cir. 1998); see Hunter v. McKune, 298 Fed.Appx.
4

730,

732-33

(10th

Cir.

2008)(unpublished)(Where

the

delay

in

docketing the petitioner’s direct appeal exceeded three years, the
KCA’s docketing of his direct appeal out of time was the appropriate
remedy for this alleged due process violation and had already
occurred.).

Finally, the court finds that petitioner’s allegations

regarding errors in the charging documents in his criminal case do
not establish that this court must intervene in the state appellate
review process.
The court concludes that this action must be dismissed for
failure to exhaust the available state court remedies.
IT IS THEREFORE ORDERED that this action is dismissed, without
prejudice, because petitioner has not exhausted state court remedies
on any of his claims.
IT IS FURTHER ORDERED that petitioner’s Motion for Leave to
Proceed in forma pauperis (Doc. 2) is denied as moot because he paid
the filing fee.
IT IS SO ORDERED.
Dated this 29th day of March, 2012, at Topeka, Kansas.

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

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