Wаy is confined in the Kansas State Penitentiary, serving sentences imposed in October, 1967, upon his plea of guilty to second degree burglary, and possеssion 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 аppeal 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:
“Merely because the Kansas Supreme Court has not heard Way’s appeal does not ipso facto render his remedy by way [of] 60-1507 inadequate or ineffectivе. This court will not assume that the Kansas courts will construe § 1507 in such manner as to make it inadequate or ineffective.”
This court has previously addressed thе problem of delays in state court appeals, albeit in connection with post-conviction litigation and not in direct appeals. In Jоnes v. Crouse,
Just as a dеlay in the adjudication of a post-conviction appeal mаy work a denial of due process, so may a like delay in the determination of a direct appeal. The question presented here is in whаt court should petitioner seek vindication of his asserted constitutionаl grievance. In our view, Way properly resorted to the federal court, which should not, without knowing the facts and circumstances of the eighteеn-month delay, have required him at this late
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date to commence a completely new and independent proceeding through the very cоurts which are responsible, on the face of the pleadings, for the vеry delay of which he complains. “The concept of federal-stаte comity involves mutuality of responsibilities, and an unacted upon responsibility can relieve one comity partner from continuous deferеnce. Moreover, the wait for action * * * must not be so exhausting as to frustrate its purpose. Patience is a virtue in the accommodation process of our federalism, but it is not inexhaustible.” Dixon v. State of Florida,
Since the submission of this case, we-have been informed that the Kansas Supreme Court affirmed the sentencing court’s judgment on December 6, 1969,
In any event, the order dismissing the petition is vacated and the case is remanded to the distriсt court for further proceedings in view of the circumstances of the сase.
Notes
. In a motion for rehearing, Way alleged that on June 21, 1968, eight months after his conviction, the state supreme court directed the sentencing court to appoint counsel to represent Way on appеal, and that on November 5, 1968, that court tlid so. Appointed counsel had nоt yet received a transcript of the proceedings as of the filing of the petition.