Some appeals never die

In Brown v. Roberts, an unpublished case, the Tenth Circuit reversed a dismissal with Mr. Brown's 2254 petition with prejudice. In particular, Mr. Brown challenged his 1996 convictions for attempted aggravated robbery and kidnapping. The district court had dismissed the petition as untimely. Mr. Brown alleged that his direct appeal from the 1996 conviction was still pending in state court. The Tenth Circuit held that:

At first glance, that claim seems preposterous. Mr. Brown indeed filed a notice of appeal with the Kansas district court on July 1, 1997, but neither Mr. Brown nor his counsel took any action to pursue the appeal in the Kansas courts for the next seven years. Specifically, so far as the record discloses, Mr. Brown has not filed a docketing statement with the appellate courts, as required by Kansas Supreme Court rules. An August 2005 letter from the office of the clerk of the Appellate Courts of Kansas confirms that "[n]o appeal has been docketed" concerning the 1996 conviction. . . .

On closer inspection, however, Mr. Brown's direct appeal may remain alive, having fallen into a kind of appellate limbo in the Kansas court system. Under Kansas law, the "[f]ailure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal." Kan. Stat. Ann. § 60-2103(a). For reasons that are not clear, the district court never entered an order dismissing Mr. Brown's appeal despite the mandatory language of Rule 5.051.

We see these every now and then where a notice of appeal is filed, but then nothing ever happens. Sometimes it can be beneficial for a client. See here.