Way v. Crouse, 415-69.
| Decision Date | 09 February 1970 |
| Docket Number | No. 415-69.,415-69. |
| Citation | 421 F.2d 145 |
| Parties | Theodore WAY, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leslie L. Conner, Oklahoma City, Okl., (Conner, Little & Conner, Oklahoma City, Okl., on the brief), for appellant.
Edward G. Collister, Jr., Asst. Atty. Gen., of Kansas (Kent Frizzell, Atty. Gen., Topeka, Kan., on the brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
Way is confined in the Kansas State Penitentiary, serving sentences imposed in October, 1967, upon his plea of guilty to second degree burglary, and possession of a firearm after conviction of a felony.
In a habeas corpus petition filed in the federal district court in April, 1969, he alleged that his appeal from the conviction and sentence had not yet been docketed in the Kansas Supreme Court, eighteen months after sentencing,1 and that he had been discriminatorily denied reasonable bail pending appeal.
Treating the claimed denial of bail as the sole substantive allegation, the court dismissed the petition on the ground that the claim had not been first presented to the state courts by a motion to vacate under K.S.A. 60-1507. Regarding the effectiveness of that remedy the court stated:
This court has previously addressed the problem of delays in state court appeals, albeit in connection with post-conviction litigation and not in direct appeals. In Jones v. Crouse, 360 F.2d 157 (10th Cir. 1966), we held that without knowing the facts and circumstances giving rise to a delay of six months in an appeal from denial of a § 1507 motion, the federal district court could not properly conclude that the petitioner's state remedies were adequate and effective. And we have repeatedly recognized that an inordinate, excessive and inexcusable delay may very well amount to a denial of due process cognizable in federal court. See, e. g., Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966), cert. denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967).
Just as a delay in the adjudication of a post-conviction appeal may work a denial of due process, so may a like delay in the determination of a direct appeal. The question presented here is in what court should petitioner seek vindication of his asserted constitutional grievance. In our...
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