                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 27 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PATRICK C. LYNN,

                Petitioner-Appellant,

    v.                                                   No. 99-3208
                                                  (D.C. No. 99-CV-3153-DES)
    MICHAEL NELSON; ATTORNEY                               (D. Kan.)
    GENERAL OF KANSAS; THE
    KANSAS COURT OF APPEALS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Patrick C. Lynn was convicted in a Kansas state court in

November 1996 of aggravated kidnapping, aggravated burglary, aggravated

sodomy, and rape, and was sentenced in January 1997 to more than eighty-eight

years in prison. He perfected a direct appeal to the Kansas Court of Appeals. On

April 30, 1999, with his direct appeal having not been yet adjudicated, he filed a

petition for a writ of habeas corpus in the district court seeking leave from the

requirement that he first exhaust his claims in state court due to the delay in

adjudicating his direct appeal, asking the district court to provide a “surrogate”

direct appeal, and challenging his convictions on the same grounds he wanted to

raise on direct appeal. Following a response by the state, the district court

determined that Lynn should not be excused from the exhaustion requirement,         see

28 U.S.C. § 2254(b), and dismissed the petition without prejudice. Lynn filed a

notice of appeal from that decision, and the matter is now before us on his request

for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).

       Lynn is essentially contending that the Kansas courts have inordinately and

unjustifiably delayed the adjudication of his direct criminal appeal.   See Harris v.

Champion , 15 F.3d 1538, 1555 (10th Cir. 1994). Although the district court

viewed his petition as seeking relief only from the requirement that he exhaust his

claims, we regard his pro se petition and request for certificate of appealability as

also arguing that his due process rights have been violated. Delay in adjudicating


                                             -2-
a direct criminal appeal may give rise to both claims.      See id. at 1557. A delay of

more than two years gives rise to a rebuttable presumption of the

“(i) ineffectiveness of state appellate procedures sufficient to excuse exhaustion

on the petitioner’s underlying claims of unconstitutional trial error, and (ii)

prejudice necessary to support an independent constitutional claim of deprivation

of an effective direct appeal because of delay.”     Harris v. Champion , 48 F.3d

1127, 1132 (10th Cir. 1995).

       The district court recognized that the rebuttable presumption of ineffective

appellate process arose in this case. By the time Lynn filed his habeas petition,

his state appeal had been pending more than two years. The court concluded,

however, that the presumption was rebutted and the appellate process was not

ineffective because Lynn’s own actions caused the delay, and the delay was

therefore not unjustified. We agree with the district court’s conclusion.

       Following perfection of his direct appeal by trial counsel,   1
                                                                         an appellate

public defender was appointed to prosecute Lynn’s direct appeal to the Kansas

Court of Appeals. In August 1997, the appellate public defender was allowed to

withdraw because Lynn had filed an action against her under 42 U.S.C. § 1983

alleging ineffectiveness of counsel in handling his appeal and conspiracy with the



1
      Due to his disagreements with his earlier counsel, this was the third counsel
appointed to represent Lynn at trial.

                                            -3-
state attorney general.   2
                              The trial court apparently had difficulty finding

replacement counsel, but new counsel was appointed in December 1997. Second

counsel was allowed to withdraw in June 1998 after Lynn threatened to sue him

for malpractice. New counsel was again appointed, and although Lynn had

moved for a new attorney in December 1998, this third counsel filed an opening

brief on Lynn’s behalf in January 1999. Third counsel also moved for a remand

to the trial court for determination of Lynn’s competency. Lynn subsequently

moved again to dismiss the third counsel and to withdraw the opening brief. The

appellate court denied his motion to withdraw counsel’s brief, but permitted Lynn

to file a supplemental pro se brief. In March 1999, the court allowed the third

counsel to withdraw, but in April it denied Lynn’s request to file a supplemental

brief exceeding the fifty-page limit. Throughout this period, the court also

addressed a variety of other motions filed by Lynn pro se.

       Clearly, Lynn has been the primary cause of the delay in adjudicating his

direct appeal. His conclusory allegation that the delay has been caused by an

“increasing backlog” in the Kansas Court of Appeals is unpersuasive. He has




2
        This court affirmed the district court’s dismissal of this complaint for
failure to state a claim. See Lynn v. Kunen , No. 97-3287, 1998 WL 732804 (10th
Cir. Oct. 19, 1998) (unpublished).

                                              -4-
demonstrated neither that he should be excused from the exhaustion requirement

nor that his due process rights have been violated.   3



       Lynn has failed to make a substantial showing of the denial of a

constitutional right.   See 28 U.S.C. § 2253(c)(2). His request for a certificate of

appealability is DENIED, and the appeal is DISMISSED. The mandate shall issue

forthwith. Petitioner’s motion to expedite this matter, filed on March 22, 2000, is

denied as moot.



                                                          Entered for the Court



                                                          Robert H. Henry
                                                          Circuit Judge




3
      The fact that, according to Lynn’s “status reports,” the Kansas appellate
court has still not adjudicated his appeal as of January 3, 2000, does not change
our conclusion.

                                            -5-
