                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          AUG 19 1998

                                  TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 PETER NINEMIRE,

          Petitioner-Appellant,
                                                        No. 98-3044
 v.
                                                  (D.C. No. 94-3492-DES)
                                                         (Kansas)
 ATTORNEY GENERAL OF KANSAS
 and STATE OF KANSAS,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, 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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

      Peter Ninemire brought this action for habeas corpus relief under 28 U.S.C.

§ 2254, asserting that he was denied the effective assistance of counsel by his

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
trial attorney’s failure to perfect his appeal and that he was denied due process

when the state courts refused to allow his appeal to be docketed out of time. The

federal district court denied relief, concluding that although Mr. Ninemire’s

counsel had been ineffective, Mr. Ninemire had suffered no prejudice because he

became a fugitive during the relevant time and thus subject to the State’s fugitive

waiver rule. Mr. Ninemire appeals and we affirm. 1

      As the State acknowledged below, the facts of this case are “rather unique.”

Rec., doc. 18 at 3. Mr. Ninemire was sentenced in state court on May 1, 1987,

and filed a notice of appeal that same day. For reasons that remain unexplained,

the journal entry of conviction and sentencing was not filed until September 5,

1989, over two years later. Under Kansas law, Mr. Ninemire had until September

27, 1989, to perfect his appeal by filing a docketing statement. The docketing

statement was not timely filed. Mr. Ninemire thereafter became a fugitive by

absenting himself from the state from November 1989 to February 1991 while

facing federal criminal charges.

      After his arrest in February 1991 on a federal bench warrant, Mr. Ninemire

sought leave to pursue an appeal of his state court conviction out of time, which


      1
         The district court denied Mr. Ninemire a certificate of appealability,
concluding that he had failed to make a substantial showing of the denial of a
constitutional right. We grant the certificate. Although we resolve the merits
adversely to Mr. Ninemire, it is undisputed that his counsel was ineffective and
that the facts in this case are unusual.

                                         -2-
the state appellate court denied. Mr. Ninemire then sought state post-conviction

relief, asserting that he had been denied effective assistance of counsel by his

attorney’s failure to timely file a docketing statement. The state district court

held a hearing and ruled that although counsel had been ineffective, Mr. Ninemire

had waived his right to appeal by becoming a fugitive after the journal entry was

filed. The state appellate court affirmed the ruling and the state supreme court

denied review.

      To succeed in establishing the denial of his constitutional right to the

effective assistance of counsel, Mr. Ninemire must establish both that his counsel

was ineffective and that he was prejudiced thereby. Strickland v. Washington,

466 U.S. 668 (1984). Mr. Ninemire contends the district court was incorrect in

concluding that he suffered no prejudice from his counsel’s ineffectiveness. The

crux of Mr. Ninemire’s argument is his assertion that the state courts erred in

holding that he waived his right to pursue an appeal by becoming a fugitive. Mr.

Ninemire contends his case falls within the Supreme Court’s analysis in Ortega-

Rodriguez v. United States, 507 U.S. 234 (1993), setting out circumstances in

which a fugitive waiver rule such as that applied here does not warrant dismissal

of an appeal. As we discuss briefly below, however, the facts in Mr. Ninemire’s

case are distinguishable from Ortega in critical respects.

      In Ortega, the defendant fled while his case was pending in district court


                                          -3-
and was recaptured before sentencing and appeal. See id. at 236. The Court

distinguished those circumstances from a situation in which, as here, a defendant

is a fugitive during the appellate process.

      [O]ur cases consistently and unequivocally approve dismissal as an
      appropriate sanction when a prisoner is a fugitive during “the
      ongoing appellate process.” Moreover, this rule is amply supported
      by a number of justifications. In addition to addressing
      [enforceability concerns], dismissal by an appellate court after a
      defendant has fled its jurisdiction serves an important deterrent
      function and advances an interest in efficient, dignified appellate
      practice.

Id. at 242 (citations omitted). The discussion in Ortega upon which Mr. Ninemire

relies is specifically limited to the factual situation “in which both flight and

recapture occur while the case is pending before the district court, so that a

defendant’s fugitive status at no time coincides with his appeal.” Id. at 244.

Ortega is thus not applicable here.

      Mr. Ninemire became a fugitive after he was sentenced and had filed a

notice of appeal and after the state had filed the journal entry of judgment which

triggered his ability to perfect his appeal by filing a docketing statement within

the specified time period. Even if his counsel had been effective and had timely

filed the docketing statement, Mr. Ninemire’s subsequent fugitive status would

have rendered the appeal subject to the state’s fugitive waiver rule. Accordingly,

Mr. Ninemire has failed to show he was prejudiced by his counsel’s

ineffectiveness.

                                          -4-
We AFFIRM the judgment of the district court.

                             ENTERED FOR THE COURT


                             Stephanie K. Seymour
                             Chief Judge




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