Either get waiver in writing or file petition for review

Joshua S. Andrews won in White v. State, No. 114,285 (Kan. July 6, 2018), obtaining a new hearing on whether his motion pursuant to K.S.A. 60-1507 should be permitted out of time due to manifest injustice. Mr. White had filed his petition about a year late, but alleged that the manifest injustice exception applied to excuse the late filing. The district court disagreed and summarily dismissed the motion.

Mr. White testified that the ADO had limited contact with him regarding a motion for summary disposition filed in the appellate court, in particular after he had received an adverse decision from the Court of Appeals. A letter from an ADO attorney indicated that the ADO would not file a petition for review unless Mr. White directed it to do so. In later correspondence from the ADO, it explained that it had closed Mr. White's file when he did not respond to a letter asking whether he wanted to file a petition for review. The ADO acknowledged that it had not sent a copy of the appellate mandate to Mr. White.

On appeal, the KSC first rejected the state's argument that an amendment to K.S.A. 60-1507(f), limiting "manifest injustice" to (1) reasons for the timely failure or (2) actual innocence should apply retroactively: "It would be manifestly unjust to apply the 2016 amendments if White can establish manifest injustice by using factors not included in them."

On the merits, the KSC noted the impact if Mr. White was not properly notified regarding the end of his appeal process:

we pause to emphasize that White alleges he did not receive notice of the Court of Appeals' adverse decision or of the mandate that triggered the one-year limitation of 60-1507(f). This means he allegedly lost the ability (1) to timely file a petition for review in his direct appeal, a claim made in his 60-1507 motion, and (2) to file a timely 60-1507, the claim pursued at the preliminary hearing on the 60-1507 motion. Thus, he potentially lost complete access to two state judicial proceedings and may be barred from seeking federal habeas review because he failed to exhaust state remedies when he did not file a petition for review.

The loss of access to these judicial proceedings results in the deprivation "'of more than a fair judicial proceeding,'" it results in the deprivation of an appellate and a federal "'proceeding altogether . . . . [And] we cannot accord any "'presumption of reliability'" [citation omitted] to judicial proceedings that never took place.'" Kargus v. State, 284 Kan. 908, 920, 169 P.3d 307 (2007) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483, (2000)).

The KSC went on to find that the record was not sufficient to support the district court's finding regarding Mr. White's knowledge the end of the appeal process. In particular, the KSC agreed with the COA's criticism of the ADO for failing to file a petition for review in the absence of explicit directions from the client:

We also join the panel in expressing our concern over the practice by which the ADO considers silence to be permission to take no further action on a client's behalf. As the panel rightly noted, "silence was equally compatible with White having never received the letter at all, something that would have to be considered reasonably foreseeable especially within the corrections system." 

. . . .

Valuable rights may be lost when silence is treated as consent. A written communication waiving a petition for review better protects (1) the client's rights and (2) the judgment against a later attack based on a claim of ineffective assistance of counsel. Here, we are left with no paper trail to confirm whether White received notice and purposefully elected to waive his right to file a petition for review or a 60-1507 motion.

As a result, the KSC remanded to the district court to consider whether Mr. White received notice of the end of his appellate proceedings along with full consideration of his claims regarding the merits of his claims of error and his claims of innocence.

One consequence of this decision is that appellate counsel (at least appointed counsel) should probably file a petition for review in every case in which they receive an unfavorable decision from the COA unless they have a written waiver. And it is pretty much unheard of for a client to decide to waive that right--why would they? This decision is consistent with and confirms many appellate attorneys' practice (including within the ADO), which is to just file a petition for review in every case in which they have received an unfavorable COA decision.