* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 19 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETER NINEMIRE, Petitioner-Appellant,

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



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Peter Ninemire brought this action for habeas corpu s relief under 28 U.S.C. § 2254, asserting that he was denied the effective assistance of counsel by his1 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. A lthough we resolve the merits adversely to Mr. Ninemire, it is undisputed that hi s counsel was ineffective and that the facts in this case are unusual. -2- trial attorney’s failure to perfect his appeal and that he was denied due process when the state courts refused to allow his appeal t o be docketed out of time. The federal district court denied relief, concluding th at although Mr. Ninemire’s counsel had been ineffective, Mr. Ninemire had suff ered 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 re asons 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 docketi ng statement. The docketing statement was not timely filed. Mr. Ninemire there after 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 benc h warrant, Mr. Ninemire sought leave to pursue an appeal of his state courtconviction out of time, which-3-

the state appellate court denied. Mr. Ninemire the n 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 state ment. 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 fugiti ve after the journal entry was filed. The state appellate court affirmed the ruli ng and the state supreme court denied review. To succeed in establishing the denial of his consti tutional 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 dis trict court was incorrect in concluding that he suffered no prejudice from his c ounsel’s ineffectiveness. The crux of Mr. Ninemire’s argument is his assertion th at the state courts erred in holding that he waived his right to pursue an appea l by becoming a fugitive. Mr. Ninemire contends his case falls within the Supreme Court’s analysis in OrtegaRodriguez v. United States , 507 U.S. 234 (1993), setting out circumstances in which a fugitive waiver rule such as that applied h ere does not warrant dismissal of an appeal. As we discuss briefly below, however , the facts in Mr. Ninemire’s case are distinguishable from Ortegain critical respects.
In Ortega , the defendant fled while his case was pending in district court-4-

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 addr essing [enforceability concerns], dismissal by an appellat e court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dig nified 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 th e district court, so that a defendant’s fugitive status at no time coincides wi th his appeal.” Id. at 244. Ortegais thus not applicable here. Mr. Ninemire became a fugitive after he was sentenc ed 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 fili ng a docketing statement within the specified time period. Even if his counsel hadbeen effective and had timely filed the docketing statement, Mr. Ninemire’s subse quent fugitive status would have rendered the appeal subject to the state’s fug itive waiver rule. Accordingly, Mr. Ninemire has failed to show he was prejudiced b y his counsel’s ineffectiveness.-5-

We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge