                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 29, 2008
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 DELARICK HUNTER,

              Petitioner-Appellant,                      No. 08-3184
 v.                                                      (D. of Kan.)
 DAVID McKUNE, Warden, and                     (D.C. No. 5:07-CV-3142-SAC)
 STEPHEN N. SIX, Kansas Attorney
 General,

              Respondents-Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Delarick Hunter, a state prisoner proceeding pro se, 1 requests review of the

district court’s denial of his 28 U.S.C. § 2254 petition for habeas relief. We

construe this request as an application for a certificate of appealability (COA).



      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        We construe pro se filings liberally. See Van Deelen v. Johnson, 497
F.3d 1151, 1153 n.1 (10th Cir. 2007).
Because Hunter’s direct appeal is currently under adjudication in state court, we

DENY his application for a COA and DISMISS this appeal.

                                   I. Background

      A Kansas court convicted Hunter of two counts of battery against a law

enforcement officer and in May 2005 sentenced him to 152 months’

imprisonment. Believing his conviction resulted from constitutional error, Hunter

filed a timely pro se notice of appeal. Approximately six weeks later, he filed a

motion for appointment of appellate counsel.

      A series of delays beset Hunter’s direct appeal. Kansas’s Appellate

Defender Office was appointed in February 2006, but the entire office withdrew

shortly afterward due to a conflict of interest. The district court appointed

replacement appellate counsel in June 2006. For reasons unclear from the record,

replacement counsel failed to docket the direct appeal with the Kansas Court of

Appeals.

      This failure to docket the appeal came despite significant efforts by Hunter.

From August 2006 to May 2007, Hunter inquired about the status of his appeal

with the Kansas appellate courts, attempted without avail to contact counsel

numerous times, and filed a petition in state district court asking the court to

order his counsel to docket Hunter’s appeal and to file an appellate brief. 2 After


      2
          The record does not indicate whether the state district court ruled on this
motion.

                                          -2-
these efforts failed to advance the direct appeal, Hunter filed a disciplinary

complaint against his replacement counsel. In a March 2007 letter dismissing the

complaint, Kansas’s Office of the Disciplinary Administrator informed Hunter

that while “extenuating circumstance [sic] have kept [counsel] from

communicating . . . as much as he could,” he “promise[d] to increase his

communications” with Hunter. R., Vol. I, Doc. 21-2, Ex. D. Furthermore, the

office noted, no evidence existed that replacement counsel intentionally ignored

his client. The appeal was never docketed, however.

      In May 2007, Hunter sought federal habeas review under 28 U.S.C. § 2254.

In doing so, he argued his failure to exhaust state court remedies should be

excused due to the inordinate delay in the processing of his direct appeal, and that

this delay itself constituted a separate due process violation.

      The district court found Hunter had not met the exhaustion requirements of

§ 2254. In particular, Hunter failed to demonstrate Kansas appellate courts were

ineffective or unavailable to address his claims under § 2254(b)(1)(B). Docketing

the appeal out of time “remain[ed] a viable option under Kansas law,” and in the

event his current counsel would not advance the appeal, Hunter could ask the

state district court to appoint new counsel. 3 R., Vol. I, Doc. 23, at 3, 4. The


      3
         In his application for a COA before the district court and in his brief
before this court, Hunter asserted that in November 2006 he requested that
replacement counsel be removed and that new counsel be appointed. The record
does not include either this request or its denial.

                                          -3-
court then dismissed Hunter’s habeas petition without prejudice and in a

subsequent order denied a COA. The district court never addressed Hunter’s

separate due process claim.

      Between the time the district court denied habeas relief in June 2008 and

the time it denied a COA in July, the Kansas Court of Appeals docketed Hunter’s

direct appeal. R., Vol. I, Doc. 30, at 2 n.1. In its order denying a COA, the

district court noted that the Kansas appellate “Case Inquiry System” website

showed that in mid-June 2008, the Kansas Court of Appeals granted Hunter’s

motion to docket an appeal out of time and that Hunter’s direct appeal “is now

pending before that state appellate court.” Id.

      Presumably in response to this docketing of his direct appeal, Hunter no

longer argues he should be excused from exhausting his state remedies. Instead,

Hunter limits his appeal to the sole issue of whether Kansas’s three-year delay in

docketing his direct appeal separately violated his due process rights. See Harris

v. Champion, 15 F.3d 1538, 1557 (10th Cir. 1994) (Harris II) (“[D]elay in

adjudicating a state prisoner’s direct criminal appeal may . . . give rise to an

independent due process claim.” (citations omitted)). We construe this as a

request for a COA on this issue.

      Because the applicable remedy for this alleged due process violation has

already occurred—namely, the state court has docketed the direct appeal—we

decline to issue a COA.

                                          -4-
                                   II. Analysis

      Because the district court denied Hunter a COA, he may not appeal the

district court’s decision absent this court’s grant of a COA. 28 U.S.C.

§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). This

requires Hunter to show “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

      Hunter asserts Kansas’s inordinate delay in docketing his direct appeal

violated his due process rights. In Harris II, we held that inordinate delay in

adjudicating a defendant’s direct criminal appeal might give rise to an

independent due process violation. 15 F.3d at 1557. In determining if such a due

process violation occurred, we look to: (1) the length of delay; (2) the reason for

the delay and whether it was justified; (3) whether the defendant asserted his right

to a timely appeal; and (4) whether the delay prejudiced the defendant in relation

to specific interests sought to be protected by a timely appeal. See id. at 1559. A

rebuttable presumption of prejudice arises when the delay attributable to the

government exceeds two years. Harris v. Champion, 48 F.3d 1127, 1132 (10th

Cir. 1995) (Harris III). Here, the delay attributable to the government—and

government-appointed counsel especially—exceeded two years. Particularly

                                         -5-
troubling is the inability or unwillingness of Hunter’s appointed replacement

counsel to docket his client’s direct appeal.

      Nevertheless, even assuming for the sake of argument that all four

requirements have been fulfilled and Hunter’s due process rights were violated, a

COA should not issue because the relief to which he would be entitled has already

been granted.

      “Our cases have made clear that the remedy for a due process violation

caused by inordinate delay is . . . consideration of [the] defendant’s appeal.”

United States v. Wiktor, 146 F.3d 815, 819 (10th Cir. 1998); see also United

States v. Dago, 441 F.3d 1238, 1249 n.6 (10th Cir. 2006) (“The possibility that a

federal court will grant a state prisoner conditional habeas relief because of an

unconstitutional delay in resolving his direct appeal is intended simply to insure

that the appeal will be heard by the state court.” (quotation marks and citation

omitted)). The most appropriate remedy for a state’s violation of the due process

right to a timely appeal would therefore be “grant[ing] a conditional writ directing

the state to release the petitioner if it did not decide his appeal within a specified

period.” Reeves v. Little, 120 F.3d 1136, 1138 (10th Cir. 1997) (citing Harris II,

15 F.3d at 1566–67).

      As the district court noted in its order denying a COA, the Kansas Court of

Appeals recently granted Hunter’s motion to docket his direct appeal out of time

and appears ready to consider his claims. Therefore, even if we were to find a

                                          -6-
due process violation, the appropriate remedy would result in a review that is

already taking place.

      Though Hunter’s appeal was delayed, we have no reason to believe that the

state process, now begun, will not provide him with an effective remedy.

Therefore, absent a future delay that either warrants excusing exhaustion or

granting a conditional writ of habeas relief, Hunter must exhaust his state

remedies before seeking relief in federal court. See § 2254(b)(1)(A).

             *                         *                         *

       For the reasons above, we DENY Hunter’s request for a COA and

DISMISS this appeal.

                                       Entered for the Court

                                       Timothy M. Tymkovich
                                       Circuit Judge




                                           -7-
