An effective appeal includes a petition for review

Heather Cessna and Brent Getty won in Kargus v. State, No. 92,432 (Kan. App. June 2, 2006)(unpublished), getting an order for an evidentiary hearing in a Johnson County 1507 case. The only issue raised on appeal was an IAAC claim based on the failure to file a petition for review in the unsuccessful direct appeal.

The KSC does not take late petitions for review, ever. Unlike late notices of appeal, or late briefs, or most other things that can be fixed if the attorney admits a mistake, the KSC does not take late petitions for review (or at least I have never seen them do so and we have had to try when we have blown the deadline).

I have unsuccessfully pursued this type of claim on appeal before. The hurdles have often been (1) showing prejudice and (2) remedy.

For example, in Swenson v. State, a COA panel held that a movant could not show prejudice unless he could show that the KSC would have granted review and the appeal would have been successful. Given that only about 1 in 100 petitions for review are granted, that pretty much makes it impossible to get relief on this type of claim. [Update: Michael Whalen filed a petition for review in Swenson on June 12, 2006] [Further update: the KSC granted the petition for review in Swenson on September 19, 2006].

In Kargus, the COA correctly held that prejudice is shown because an appellant is precluded from going to federal court unless the federal claims are exhausted in state court. Therefore, even if not granted, the outcome of the appeal is different if a petition for review is timely filed. The Kargus panel held that prejudice was shown and remanded for an evidentiary hearing on whether he should be allowed to file a late petition for review.

The second part of this that has sometimes concerned judges is: what is the remedy? Appellate judges have incredulously asked me, "you really think that a district court can order the Kansas Supreme Court to accept a late petition for review?" This is an issue of some disagreement, even among my colleagues. I think that the KSC is subject to the Constitution just as much as everyone else and that they would be subject to the lawful order of the district court acting within its proper habeas jurisdiction. But even if I am wrong and the district court cannot order the KSC to take the petition for review, it has a remedy. Every habeas court has a remedy. It can vacate the conviction and order a new trial. If the KSC would take (and likely deny) a late petition for review, that would be the least intrusive remedy. But if it cannot (or will not), the conviction still violates the Fourteenth Amendment and the proper remedy would be to vacate the conviction. So even if my remedy is not possible, some remedy is. (And I would think the state would prefer my remedy!)

It will be interesting to see if any more litigation occurs in this area now that there is somewhat of a split. If you are representing a movant in a similar 1507 proceeding where the state suggests your client has to show that the KSC would have granted the petition for review, you might want to cite this unpublished case.

[Update: the state filed a petition for review on July 5, 2006]

[Further update: the KSC granted the state's petition for review on September 19, 2006. This case will likely be argued in December 2006 or possibly January 2007].

[Further update: the KSC affirmed the COA and remanded for evidentiary hearing on Mr. Kargus' claims. Here is my post on the case.]