1 No . 115,487

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

M ATTHEW B. G RIFFIN , Appellant
,

v.

K ARI B RUFFETT , S ECRETARY OF THE K ANSAS D EPARTMENT ON A GING AND D ISABILITY S ERVICES , Appellee

.

SYLLABUS BY THE COUR T

1. Although K.S.A. 2015 Supp. 59

- 29a01(b) declares that all time requirements referenced in the Sexually Violent Predator Act (SVPA) are directory rather than mandatory, it is clear that persons confined under the SVPA are entitled to yearly review and recommitment. See K.S.A. 2015 Supp. 59

- 29a08. However, there is no requirement that the annual review hearing must be held prior to the anniversary date of the sexually violent predator's (SVP) original civil commitment.

2. Because a commitment under the SVPA is only valid for a year, absen t a court order of recommitment there must be a point at which each year becomes final for purposes of challenging confinement during that period.

3.
U pon receipt of the annual written notice of the right to petition for release
, a person confined as a n S VP is put on notice that a recommitment order is imminent. So
even if the court fails to enter a recommitment order , the filing of the annual evaluation2

and notice of right or waiver would be a sufficient indication of finality of the prior year's
commitme nt to start the 30

- day clock for filing any challenge to said commitment.

4. The third factor that is considered in the context of determining whether a showing of manifest injustice saves an untimely K.S.A. 60

- 1507 motion is whether the movant made a colorable claim of actual innocence. While there is no direct corollary to a claim
of actual innocence in the context of an untimely K.S.A. 2015 Supp. 60

- 1501 petition raised by a n SVP contesting his or her conti nued confinement, it is reasonable to require some showing that there has been a change in the petitioner's mental or physical health such that continued confinement is no longer necessary.

Appeal from Pawnee District Court; B RUCE T. G ATTERMAN , judge. Opinion filed Februa ry 10 , 201 7

. Affirmed

.

Matthew B. Griffin , appellant pro se

.

Bryan C. Clark , assistant solicitor general
, and Derek Schmidt , attorney general, for appellee.

B efore P IERRON , P.J., A TCHESON and A RNOLD

- B URGER , JJ.

A RNOLD

- B URG ER , J

. : In Kansas, as in a few other states, once you have completed your prison term on a sexually violent crime, the State may seek to have you involuntarily civilly committed to a state hospital upon a determination by a jury that you are a sexually violent predator. The United States Supreme Court has upheld this process
to be constitutional
, and our Suprem e Court has followed suit. Kansas v. Hendricks , 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); In re Care & Treatment of Hay , 263 Kan. 822, 953 P.2d 666 (1998). But a key part of the process is an annual review by a judge to determine whether the individual's mental status remains such that he or she is still a danger to society

. As t he U nited States Supreme Court stated in Hendricks , this3

prevents the civil commitment process from simply being another form of punishment for
the same offense

. 521 U.S. at 364.

Matthew B. Griffin has been involuntarily confined to Larned State Hospital for treatment as a sexually violent predator (SVP) since 2009. For 4 of the first 6 years of his confinement, even though an annual evaluation was completed by the State indicating the necessity for continued confinement, there was no judicial overview of that process as required by K.S.A. 2015 Supp. 59

- 29a08 . As a result, he filed a petition for a writ of habeas corpus claiming that his statutory and constitutional rights were so severely
violated that his confinement in the Sexual Predator Treatment Prog ram ( SPTP ) has been illegal since 2010 . He further asserts that the only possible remedy for the harm he has suffered is immediate release. The district court summarily dismissed the petition. Although we are troubled by the general lack of attention by the district court to the periodic review component of due pr ocess for persons confined under the Kansas Sexually Violent Predator Act ( SVPA ) , we must agree that summary dismissal was proper under the unique facts of this case, for the reasons we set out below.

F ACTUAL AND P ROCEDURAL H ISTORY

The facts are not in dispute and are outlined as set forth in the district court order denying Griffin's petition.

 January 2, 2009 : Griffin wa s determined to be an SVP and was committed to the SPTP at Larned State Hospital

.

 December 2009 : First annual examination completed finding that Griffin was not
a suitable candidate for transitional release.

 February 2010 : Griffin acknowledges receipt of the annual notice
, and the report was submitted to the Saline District Court but was never placed in the court file.4

 2010 : No court order was ever entered recommitting Griffin pursuant to the first annual report.

 February 2011 : Second annual examination completed.

 May 2011 : Griffin agreed to remain in treatment and waived his right to further proceedings.

 May 27, 2011 : Saline Count y District Court entered order continuing Griffin's
commitment to the SPTP.

 December 29, 2011 : Third annual examination completed finding that Griffin's mental abnormality or personality disorder had not so changed that it would be safe for him to be plac ed in transitional release.

 January 17, 2012 : Griffin acknowledged receipt of the annual notice and signed
below the follow ing statement: " ' If I desire to pur sue further proceedings in this matter, I understand that I must initiate those separately from this response. ' " The report was forwarded to the Saline District Court, but it does not appear in the
court file.

 2012 : No court order was ever entered recommitting Griffin pursuant to the third annual report.

 December 2012: Fourth annual examination wa s completed. Griffin acknowledged receipt of the annual notice and signed below the follow ing

statement: " ' If I desire to pur sue further proceedings in this matter, I understand that I must initiate those separately from this response. ' " The report was forwarded
to the Saline District Court and to Griffin's court

- appointed attorney, but it does not appear in the court file.

 2013 : No court order was entered recommitting Griffin pursuant to the fourth annual report.

 December 2013: Fifth annual examinatio n was completed finding that Griffin's mental abnormality or personality disorder had not so changed that it would be safe for him to be placed in transitional release. Griffin acknowledged receipt of5

the annual notice and signed below the follow ing statem ent: " ' If I desire to pur sue further proceedings in this matter, I understand that I must initiate those separately from this response. ' " The report was forwarded to the Saline District Court and to
Griffin's court

- appointed attorney, but it does not appe ar in the court file.

 2014 : No court order was ever entered recommitting Griffin pursuant to the f if th annual report.

 December 2014: Sixth annual examination was completed finding that Griffin's mental abnormality or personality disorder had not so chang ed that it would be safe for him to be placed in transitional release. Griffin was given notice regarding his right to petition for release. The report was forwarded to the Saline District
Court.

 March 30, 2015: A court order was entered continuing Griff in's commitment to the custody of the Secretary for control, care
, and treatment.

 April 28, 2015: Griffin's petition for writ of habeas corpus filed.

 November 30, 2015 : Seventh annual examination was completed, again finding
that Griffin's condition ha d not changed in any manner to warrant release.

 January 13, 2016 : The court issued an order noting that Griffin had been provided an independent evaluation
, and on January 11, 2016
, Griffin's attorney announced to the court that after reviewing the evalu ation, Griffin no longer
wished to seek transitional release related t o the 2014 (sixth) or 2015 (seventh) annual reports. Accordingly, he waived any objections as related to any right to a hearing he might be entitled to on those reports.

Griffin did not dispute the district court's fact findings on appeal. Instead, Griffin argues that his commitment was effectively vacated on January 2, 2010
, when the State
failed to hold the first annual review hearin g

— 1 year after his commitment to the S P TP

. Accordingl y, he contends that he has been unlawfully confined since tha t date.6

The district court summarily dismissed Griffin's petition finding: the claim of error in year 2, regarding the 2011 recommitment order, was not timely because there
was a final order en tered that year and Griffin did not appeal or file a petition at that time; Griffin generally failed to allege errors that were shocking to the conscience so that they could not be considered as part of a petition for habeas corpus; Griffin failed to prese nt evidence of ineffective assistance of counsel; and, Griffin failed to present sufficient evidence to overcome the presumption that the SVPA is constitutional. The district court
concluded :

"Further
, it is clear from th e record that Griffin has received a current examination of his mental condition every year from and after the date of his commitment, and most recently following appointment of counsel and receipt of independent examination withdrew his request to seek transitional release and no longer c hallenged the findings of the ann ual reports for 2014 and 2015."

Griffin appeals.

A NALYSIS

The district court did not err when it summarily dismissed Griffin's petition for a writ of habeas corpus.

In his petition for habeas corpus, Griffin alleged that the proper procedures for continuing his confinement were not followed during his first, second, third, fourth, fifth, and sixth years in the SPTP. As a result, he claimed that his statutory and constitutional rights were so severely violated that his confinement in the SPTP has been illegal since 2010 and that the only possible remedy for the harm he has suffered is immediate release. Griffin's first, second, and third issues on appeal repeat these claims and argue that the
district court erred in sum marily dismissing his petition. Because the arguments that Griffin makes in these sections overlap, they will be considered together here.7

To state a claim for relief under K.S.A. 60

- 1501, a petition must allege "shocking
and intolerable conduct or continu ing mistreatment of a constitutional stature." Johnson
v. State , 289 Kan. 642, 648, 215 P.3d 575 (2009). "[I]f, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from
incontrovert ible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists," then summary dismissal is proper. 289 Kan. at
648

- 49. An appellate court exercises unlimited review of a summary dismissal. 289 Kan.
at 649.

Moreover, "a patient in the custody of the secretary for aging and disability services pursuant to K.S.A. 59

- 29a01 et seq., and amendments thereto, shall file a petition for writ

. . . within 30 days from the date the action was final." K.S.A. 201 5 Supp. 60

- 1501 (c)

.

A general examination of the annual review process for persons confined under
the SVPA.

Griffin argues that the district court failed to follow the proper procedures for continuing his confinement in the SPTP which violated his right to procedural due process in a way that was shocking to the conscience. SVPs' procedural rights during the annual review process are outlined in and protected by K.S.A. 2015 Supp. 59

- 29a08. The

statu t e requires that each year, a psychological evaluation be made of each committed individual. This is typically done by someone employed by the Kansas Department of Aging and Disability Services (KDADS), but if a n SVP would like an independent
evaluation of his or her mental condition, he or she is entitled to re tain or request appointment of a qualified professional to perform it. The result of this examination is to be filed with the district court that committed the individual, along with a notice signed by the individual. The notice makes the person aware of h is or her right to petition the8

district court for release from the program even if the Secretary of the KDADS requests
recommitment based on the results of the annual evaluation.

Once it receives the evaluation and notice, the district court must conduc t a preliminary review hearing at which it determines whether the individual's mental status
remains such that he or she is still a danger to society. See In re Care & Treatment of
Burch , 296 Kan. 215, 220, 291 P.3d 78 (2012). The SVP is not entitled to be present at the hearing but may be represented by counsel. K.S.A. 2015 Supp. 59

- 29a08 (a) . If the district court concludes that there is probable cause to believe that the individual is no longer a danger, it must hold a full hearing on the matter at which the SVP is entitled to
be present with retained or court

- appointed counsel. K.S.A. 2015 Supp. 59

- 29a08(c)

. At that hearing, the burden is on the State to prove beyond a reasonable doubt that the SVP
is not safe to be released. In re Burch , 296 Kan. at 22 1 . If after either the preliminary hearing or the full hearing, the district court determines that the individual is not safe for release, the district court should enter an order recommitting the person to the program for another year. K.S.A. 201 5 Supp. 59

- 29a08 (d) . If the district court determines that the individual is safe to be placed in transitional release, the court will order the SVP to be so
moved. K.S.A. 201 5 Supp. 59

- 29a08 (e).

In short, K.S.A. 2015 Supp. 59

- 29a08 requires a yearly review of a co mmitted individual's progress in the treatment program, notice to the committed individual during the review process, and judicial oversight with the same constitutional protections afforded to persons during commitment proceedings under K.S.A. 2015 Supp. 59

- 29a06.

The Supreme Court of the United States considered whether the SVPA (K.S.A.
59

- 29a01 et seq. [Furse 1994 ]), including K.S.A. 59

- 29a08, was constitutional in
Hendricks , 521 U.S. 346. There, the Court found that the SVPA "comports with due

process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking." Hendricks , 521 U.S. at 371. Our9

Supreme Court has subsequently considered the SVPA's compliance directly and found that the act sufficiently protects individuals' rights. In re Care & Treatment of Hay , 263 Kan. 822, 831

- 33 , 953 P.2d 666 (1998). This court has reviewed the act even more recently and has emphasized that the SVPA is facially constitutional but that district courts must follow the statutory mandates or risk violating due process rights in
individual cases. See In re Care & Treatment of Zishka , 51 Kan. App. 2d 242, 246, 343 P.3d 558 (2015); In re Care & Treatment of Miles , 42 Kan. App. 2d 471, 476, 480, 213 P.3d 1077 (2009).

Failure to follow the statutory mandates may rise to the level of shocking to the conscience so that an individual's claim may survive summary dismissal if there is evidence of indifference by government actors to their statutory duties. Johnson , 289
Kan. at 6 53 . During 4 out of the 6 years Griffin complains that the district court took no action to review Griffin's confinement or to recommit him to the SPTP. This pattern of behavior is shocking to the conscience so that Griffin's claim survives this first procedural barrier.

While the district court was shockingly indifferent to its statutory and constitutional obligations in each of the 6 years Griffin challenged in his writ , other procedural barriers bar relief for all but year 6.

Griffin's claims are untimely for all but year 6 of his confinement.

During each of his first 6 years in the SPTP, the district court failed to follow the proper procedures

— outlined in K.S.A. 2015 Supp. 59

- 29a08

— to continue his confinement, thereby violating his right to procedural due process. In the first, third, fourth, and fifth years, the violations were particularly significant and egregious. During those years, psychological evaluations were completed and not ices were provided to and signed by Griffin; these documents were allegedly mailed to the district court each year10

but were never filed. Griffin did not receive a review hearing, or even in

- chambers review, and no order was entered by the district court re committing him to the program in any of these years. Clearly, Griffin was not afforded the basic statutory protections that are meant to ensure that the liberty of civilly committed individuals is not constrained any longer than is absolutely necessary to protect the general public.

Because there were no annual reviews held or orders entered recommitting Griffin in years 1, 3, 4, and 5, the district court concluded that Griffin's challenge was not untimely as to these years. But this result seems at odds w ith the otherwise strict time constraints for filing a K.S.A. 2015 Supp. 60

- 1501 petition. See K.S.A. 201 5 Supp. 60

- 1501(b) (setting a 30

- day time limit for filing a petition).

Although K.S.A. 2015 Supp. 59

- 29a01(b) declares that all time requirements
ref erenced in the SVPA are directory rather than mandatory, it is clear that persons confined under the act are entitled to yearly review and recommitment. See K.S.A. 201 5 Supp. 59

- 29a08. However, there is no requirement, as alleged by Griffin, that the annual review hearing must be held prior to the anniversary date of the SVP ' s original civil commitment. It is also undisputed that, without fail, Griffin received an annual evaluation. It is also undisputed that Griffin never requested a hearing despite r eceiving notification of his right to do so. But that said, clearly the State cannot completely stray from this mandate without violating the constitutional rights of those committed under
the act. See Hendricks , 521 U.S. at 364. In Hendricks , the United S tates Supreme Court based its holding that the Kansas SVPA did not unconstitutionally impinge on committed individuals' rights in part on its finding that the act contained sufficient procedural safeguards to protect SVPs ' rights. 521 U.S. at 364

- 66; see K .S.A. 201 5 Supp. 59

- 29a08.
One such safeguard is to limit "[t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding [to] one year." 521 U.S. at 364.
This limitation ensures that SVPs are not detained indefini tely and that they are not11

subject to continued confinement when their mental conditions have changed so that they are no longer a danger to society. 521 U.S. at 364.

Because a commitment is only valid for a year, there must be a point at which each year becomes final for purposes of challenging confinement during that period. However, because the SVPA is not clear on issues of timing and allows for some variance regarding the completion of recommitment proceedings, the date at which a year's commitment be comes final must be based on something other than a strict calendar year or number of days. " When statutes have been silent as to a period of time, courts
have read in a 'reasonable time' into the statutes." H.T.E., Inc. v. Tyler Tech nologies
., Inc. , 217 F . Supp. 2d 1255, 1261, n.9 (M.D. Fla. 2002). Accordingly, it would certainly be reasonable to conclude that in the absence of a clear court order indicating finality, a
commitment order for 1 year would be final, at the latest, on the date that a new
commi tment order is issued for the ensuing year. It is that act that begins the recommitment for a new year, making whatever happened in the prior year essentially
irrelevant or moot.

Upon receipt of the annual written notice of the right to petition for relea se, a person confined as an SVP is put on notice that a recommitment order is imminent

. So it would also be reasonable, in the absence of a clear court order indicating finality, to deem the day the annual evaluation and notice of right or waiver are filed to be the cutoff for challenging the prior year's commitment. So even if the court fails to enter a
recommitment order , the filing of the annual evaluation and notice of right or waiver would be a sufficient indication of finality of the prior year's comm itment to start the 30

- day clock for filing any challeng e to said commitment.

Making the day the annual evaluation and notice are filed the cutoff for challenging the prior year's commitment ensures that a number of competing interests are honored. First, it recognizes the need for finality. Second, it ensures an opportunity for a12

meaningful remedy. When review and recommitment occurs yearly, errors need to be addressed quickly for remedies to be meaningful. When, as here, a n SVP challenges a
commitment or lack thereof several years in the past, it is difficult to fashion a remedy. Simply ordering a hearing at that point is meaningless because even if the court were to find that during a prior year the SVP's mental condition had improved such that
transitio nal release was appropriate at that time, the fact that the SVP was recommitted to a lower level in the program in the current year would control and the individual wou ld
remain in full confinement. This is because the SPTP allows for SVPs to progress and regress in the program

— the direction of progress is not linear. See K.S.A. 201 5 Supp.
59

- 29a08(f), (g). Even a n SVP who is granted conditional release is subject to a return to full confinement if it is determined that changes in his or her mental conditio n warrant it.
See K.S.A. 201 5 Supp. 59

- 29a19.

Here, for instance, perhaps transitional release was appropriate for Griffin even as recently as his fifth year in the program (generally calendar year 2014). If Griffin had
been moved into transitional releas e at that time, if he regressed in his sixth year, he could have been removed from transitional release and placed back at a lower step in the program. Since Griffin was recommitted for a sixth year to full confinement upon his stipulation without an evide ntiary hearing, it is safe to assume that if he had been placed in transitional release in his fifth year, he would have been withdrawn from transitional release in his sixth. Therefore, a hearing on Griffin's fifth (or fourth, third, etc.) year
status aft er his sixth year recommitment would not benefit him because his current evaluation would trump it in terms of his placement within the program.

Finally, making the filing of a ne w evaluation and notice the cut off point to begin
the 30

- day limit for a cha llenge to the previous year's commitment is ideal because it provides SVPs with some notice that the time to challenge is now or never. Even if a district court and/or attorney completely fails to communicate with a committed person during a year's annual review process, as allegedly happened here, the SVP must13

participate in the evaluation of his or her mental condition and must sign the annual notice form before it is filed with the district court. If these events are taking place for a new year and the S VP has not received a review for the previous year, it should set off alarm bells notifying the SVP that the district court may be planning on foregoing the annual review entirely, thereby prompting him or her to act.

Here, the 30

- day time frame for Griff in to file a 60

- 1501 petition challenging his confinement during the first year began to run on May 27, 2011, when the second annual evaluation and notice were filed with the district court. Griffin, however, did not take any action challenging his first y ear's confinement until April 28, 2015

— almost 4 years after the time to file a petition expired. Since nothing was ever filed with the district court during years 3, 4, and 5, even if we assume that the statute of limitations did not begin running for any of these years until Griffin's sixth evaluation and notice were filed with the district court on February 2, 2015
, the petition was filed more than 30 days after the termination of appellate jurisdiction.

This court discussed a similar fact pattern in In re Care & Treatment of Howard
, No. 108,552, 2014 WL 113428 (Kan. App.) (unpublished opinion), rev. denied 301 Kan. 1046 (2014). Howard filed a motion in 2012 alleging that the district court failed to hold annual review hearings as required by the SVPA in 2005, 2006, and 2007, and seeking immediate release. This court began its analysis by noting that Howard failed to file direct appeals challenging his continued commitment after each year's annual review and that fact alone may have been grounds for dismis sal of Howard's petition because a 60

- 1501 petition should not be used as a substitute for direct appeal. 2014 WL 113428, at *3. Without deciding whether Howard's petition should have been dismissed for that reason, the court went on to consider the timing requirements of K.S.A. 2012 Supp. 60

- 1501 and found that Howard failed to timely file his petition. 2014 WL 113428, at *3. This court
reasoned:14 "In order for Howard's petition to be considered timely under K.S.A. 60

- 1501 , he needed to file it within 1 year of the termination of appellate jurisdiction. But Howard did not appeal any of the annual reviews he received from 2005 to 2008; thus, appellate jurisdiction to review these proceedings expired when he failed to file a notice of appeal within 30 days from the determination that he remained a sexually violent predator. See K.S.A. 2012 Supp. 59

- 2401 a (b); K.S.A. 2012 Supp. 60

- 2103." 2014 WL 113428, at *3.

But see K.S.A. 2012 Supp. 60

- 1501(c) (reducing the time limit to file a 60

- 1501 petition from 1 year to 30 days after an action is final). Additionally, the Howard court made note that, while the time limit to file may be extended by a showing of manifest injustice, Howard did not allege man ifest injustice at the district court level or attempt to explain on appeal why he waited until years after the alleged due process violations to seek judicial review. 2014 WL 113428, at * 4

.

Like Howard, Griffin waited until after the statutory time for filing a 60

- 1501 petition ran before challenging the process, or, in this case, absence of process, that was
used to continue his confinement. See K.S.A. 201 5 Supp. 60

- 1501(c). Thus, Griffin's claims can only be considered if he has shown that he would suf fer manifest injustice if
denied relief.

Griffin has failed to establish manifest injustice as to the first 5 years of his

confinement sufficient to overcome the untimeliness of his petition.

Manifest injustice has been interpreted to mean obviously unf air or shocking to the
conscience. Vontress v. State , 299 Kan. 607, 614, 325 P.3d 114 (2014). When determining whether a movant has suffered manifest injustice, courts should look at the totality of the circumstances, giving special consideration to whethe r: (1) there are "persuasive reasons or circumstances" that prevented the movant from timely filing; and, (2) the movant 's claim raises "substantial issues of law or fact deserving the district court's consideration." 299 Kan. at 616. Also, in the context of a 60

- 1507 motion, the15

context in which this test was developed, courts are to consider whether the movant " set[] forth a colorable claim of actual innocence; i.e. , factual, not legal innocence. " 299 Kan. at
616.

Griffin did not allege manifest injusti ce in his initial 60

- 1501 petition, but he did raise the issue before the district court in a memorandum replying to the State's answer. There, he argued that the district court's indifference to its statutory obligations of review
and recommitment was sho cking so that it was appropriate to allow an untimely petition. Additionally, Griffin argued that it would be unfair for the district court to reject his petition as untimely because he did not have the benefit of an attorney assisting him or advising him of timing restrictions on filing an action. Finally, Griffin alleged that he was never served with notice of the district court's orders recommitting him so he was unaware when the time periods for bringing an action began to run.

So to determine if Grif

fin has presented sufficient evidence to establish manifest injustice, we next review the factors outlined in Vontress

.

Vontress factor 1, justification for the delay, weighs against Griffin.

The first Vontress factor is whether there are persuasive reasons justifying Griffin's delay in filing his 60

- 1501 petition. See 299 Kan. at 616. Griffin contends that one of the reasons for the delay is that he was never notified when the district court took
action related to his continued confinement so he did not know when the time was ripe to file an appeal or a petition for writ of habeas corpus. If true, this lack of notice is disturbing. K.S.A. 201 5 Supp. 60

- 258 requires the clerk of the district court in which a judg ment or journal entry is entered to serve copies of the judgment on the attorneys of record within 3 days of filing; if a party is pro se, he or she should be served the notice directly. It appears from the record that Griffin was represented by counsel du ring years 4, 5, 6, and 7. He does not allege he was denied counsel in year 1, and in year 2 he16

waived his right to further proceedings. It is unclear from the record whether he was represented in year 3
, so at a minimum in year 3 notice should have been s ent directly to
him

.

While the district court's failure to take action, including providing status updates, in each of these years seems like a reasonable justification for some delay in Griffin's filing of a 60

- 1501 petition, it is only a justification f or some delay. See White v. State
, No. 114,284, 2016 WL 3202889, at *4 (Kan. App. 2016) (unpublished opinion), petition for rev. filed June 21, 2016. There is an "outer limit as to how long [ an SVP] reasonably might wait to hear from his or her lawyer [or the district court] about the status of" an annual review. 2016 WL 3202889, at *4. Beyond that point, it seems reasonable to hold the SVP responsible for making an inquiry into the status of his or her own fate. Since reviews are conducted yearly in accord ance with the SVPA, 1 year seems to be the outer limit of a reasonable period for a committed individual to wait for the results of an annual hearing

— beyond that a new annual review to recommit the individual will be complete, making the results of the pre vious review irrelevant. If the SVP has opted to represent
himself or herself , it may be that the outer limit is shorter since he or she bears more responsibility for the litigation. See 2016 WL 3202889, at *3.

Here, Griffin was at least provided with yearly evaluations and he signed notices in each of the challenged years. Having signed the notice, Griffin was aware that proceedings were underway to continue his confinement. Armed with this knowledge, Griffin bore some responsibility for conducting an independent inquiry into the status of the proceedings if he was interested in challenging his recommitment. The failure of the district court to notify Griffin does not excuse Griffin's delay in filing a petition challenging his conf

inement in years 1, 3, 4, or 5.

Year 2 was slightly better in terms of the process that was afforded Griffin. In the second year, Griffin received an evaluation and signed a notice, both of which were filed17

with the district court. The district court then entered an order reco mmitting Griffin to the program for another year. Nevertheless, Griffin was entitled to a hearing as part of his
annual review which he never received. See In re Burch , 296 Kan. at 220.

Because an order was entered for this year, the issue of finality is clearer. The review process became final 30 days after the order recommitting Griffin was filed.
Howard , 2014 WL 113428, at *3. The order was filed May 27, 2011, so it became final on June 26, 2011, and the time for filing a 60

- 1501 petition began to run. In order to be considered timely, a petition challenging the order should have been filed by July 26, 2011. Griffin provides no justification for the 4

- year delay between the entry of the order recommitting him and his challenge to it

.

In sum justification for the delay weighs against Griffin when conducting the
Vontress analysis as to the first 5 years of his confinement.

Vontress factor 2, substantial issues of law or fact deserving the court's attention, weighs in Griffin's favor.

T he second factor is whether Griffin's claim raises substantial issues of law or fact deserving of the district court's attention. Vontress , 299 Kan. at 616. This factor asks the reviewing court to consider whether the petitioner's claim has merit without a ctually ruling on it. See White , 2016 WL 3202889, at *4. Griffin takes issue with the procedure, or lack thereof, which was used to continue his confinement in the SPTP

— arguing that the district court completely failed to provide judicial review during his first, third, fourth, and fifth years in the program. In addition, Griffin takes issue with the procedure that was used to recommit him to a second year in the SPTP, specifically the district court's failure to provide a hearing before ordering recommitme nt.18

Griffin's claim is clearly worthy of consideration. He raises legal questions regarding the district court's constitutional and statutory duties to provide judicial review
of a n SVP's progress and makes factual allegations that, if proved, could ent itle him to relief, although we express no opinion regarding the viability or success of such claims. Thus, this second factor weighs in favor of untimely consideration of Griffin's claim.

Vontress factor 3, evidence that continued confinement is no longe r necessary, weighs against Griffin.

The third factor that is considered in the context of determin in g whether a showing of manifest injustice saves an untimely 60

- 1507 motion is whether the movant made a
colorable claim of actual innocence. Vontress , 299 Kan. at 616. While there is no direct corollary to a claim of actual innocence in the context of a 60

- 1501 petition raised by a n SVP contesting his or her continued confinement, it is reasonable to require some showing that there has been a change in the petition er's mental or physical health such that continued confinement is no longer necessary. See 299 Kan. at 610 (noting Judge Leben's conclusion that the reason for considering this factor is that "a [K.S.A. 60

- 1507] motion's merits could establish manifest injustice in some circumstances, e.g. , an inmate showing actual innocence"). Griffin makes no such argument. Rather than arguing that he was entitled to release because proper proceedings during the challenged years would have revealed that he was no longer a danger and is entitled to release on that basis, he argued that he is entitled to immediate release simply because his procedural rights were violated. In fact, after an independent evaluation in January 2 016, Griffin indicated that he was no longer seeking transitional release. Moreover, the occurrence or nonoccurrence of annual reviews for Griffin created no prejudice upon his ability to challenge his continued confinement in subsequent annual reviews. Th us, this third factor also weighs against finding manifest injustice here.19

Balancing these results, two out of the three Vontress factors clearly weigh against finding manifest injustice. Because Griffin has failed to adequately explain his long delay
in challenging the district court's actions and because he makes no claim that release is necessary based on actual changes to his condition, he has failed to establish that manifest injustice results from a dismissal of his petition.

Since he failed to esta blish that manifest injustice would result from the district court's failure to consider his untimely filed petition for habeas corpus as it relates to his first, second, third, fourth, and fifth annual reviews, the district court properly denied
Griffin r elief.

The district court did not err in finding that Griffin was not entitled to relief for year 6, even though that claim was timely.

The review that Griffin received in his sixth year in the SPTP is identical to that
received in his second: an evaluation of his mental state was made, Griffin was presented with a notice form which he refused to sign, the necessary documents were filed with the district court, and the district court entered an order recommitting Griffin for another year
without fi rst holding a hearing. Year 6 is unique, however, in that Griffin's petition for habeas corpus was filed just 29 days after the district court entered the order recommitting him , so it was timely.

Even though we have determined that Griffin's claim as to his sixth annual review is timely, we cannot ignore th e fact that Griffin explicitly waived any hearing for his sixth annual review. On January 11
, 2016, Griffin's appointed counsel informed the court that after receiving an independent evaluation, Griffin waived the right to seek transitional release. Based on Griffin's waiver and the findings of the 2014 ( sixth ) annual report and
2015 ( seventh ) annual report and the independent evaluation, the district court found that Griffin's condition had not so chang ed that he would be safe to be p laced in transitional20

release. This order was signed by both the State and Griffin's court

- appointed attorney. Griffin does not address this waiver in his appellate brief, nor does he contend that court

appointed counsel was ineffective or acted without authority in waiving the district
court's consideration of Griffin for transitional release. It was after this waiver that the district court summarily denied Griffin's petition . The court referred to this waiver in its
order. Based on this explicit waiver, we agree with the district court finding that Griffin
fails to state a claim for y ear 6 of his confinement.

The district court did not err when it determined that Griffin failed to prove ineffective assistance of counsel.

Griffin next argues that he was denied his right to effective assistance of counsel
dur ing each of his annual reviews.

Clearly, Griffin is entitled to effective assistance of counsel and he may challenge the effectiveness of counsel through a collateral attack using K.S.A. 2015 Supp. 60

- 1501.
See In re Care & Treatment of Ontiberos , 295 Kan. 10, 27, 287 P.3d 855 (2012). T o prevail on a claim of ineffective assistance of counsel, one entitled to counsel must establish (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e. , that there is a reasonable probabi lity the result would be different absent the deficient performance. A reasonable probability means a probability sufficient to undermine confidence in the outcome. See 295 Kan. at 31

- 32.

As discussed above, Griffin's collateral challenge is untimely for all but the sixth year. Moreover, even if we were to consider his challenge and assume counsel was
ineffective in all of the claimed years, he is still required to show prejudice by demonstrating that there is a reasonable probability that, but for counsel 's deficient performance, the result of the proceed ing would have been different. Griffin has failed to proffer any evidence, for any of the challenged years, that the res ult would have been21

different. In fact, he agreed that he was not eligible for transi tional release for 2014 or 2015. Accordingly, the district court did not err in summarily denying his claim.

Because the petition was summarily dismissed, the district court did not err when it refused to appoint counsel to assist Griffin

.

Finally, Griff

in argues that the district court erred when it failed to appoint counsel

to represent him in this matter. At the same time, Griffin recognizes that the right to
counsel in a K.S.A. 2015 Supp. 60

- 1501 proceeding only attaches after the district court
has d etermined that the petition cannot be summarily dismissed. Because the district court summarily dismissed Griffin's petition, it was unnecessary for it to appoint counsel to represent him. See Merryfield v. State , 44 Kan. App. 2d 817, 82 6 , 241 P.3d 573 (20 10).

In conclusion, we are deeply troubled by the general lack of attention by the district court to the periodic review component of due process for persons confined under the SVPA. We are also troubled by the difficulty of obtaining any meaningful remed y for
such inaction under the traditional K.S.A. 2015 Supp. 60

- 1501 process. If a n SVP obtains a proper hearing and the S tate is unable to show that the SVP ' s mental condition is such
that it is not safe to release him or her, the ultimate relief afforded by the statute is placement in the transitional release program, not unconditional release. K.S.A. 2015 Supp. 59

- 29a08(d). If a hearing is not provided in 1 year, but provided the next year, our court has routinely found that the new hearing makes the fail ure to provide the prior hearing irrelevant or moot. See In re Mellon
, No. 114,923, 2016 WL 5844593 , *4 ( Kan. App. 2016) ( unpublished opinion )

.

Griffin's claim, at its core, is that he has been unlawfully confined since 2010 and
he is entitled to uncondit ional release. But granting Griffin unconditional release
, absent a finding that his mental abnormality or personality disorder has changed such that he is22

safe to be placed in transitional release because he is unlikely to engage in acts of sexual
violenc e, is clearly not the appropriate sta tutory or equitable remedy. This is particularly true in light of the fact that subsequent, unchallenged evaluations and court orders find he is not appropr iate for transitional release. Release of a sexually violent pe rson contravenes the purpose of the SVPA and the sa fety of the public.

Absent clarification by the legislature as to timing and procedure required for annual hearings (both the first and second hearings set out in K.S.A. 20 15 Supp. 59

- 29a08 [ a ] and [ c ] ), w e tend to agree with the Wisconsin Supreme Court that perhaps other means of challenging such inaction as experienced here are more appropriate. See In re Commitment of Beyer , 287 Wis. 2d 1, 33, 707 N.W.2d 509 (2006). When the delay in hearing is caused by the district court's failure to act, a more appropriate remedy may be under a writ of mandamus to compel the court to take immediate action. Such a remedy helps to ensure that a n SVP "receives the process due to him w hile protecting the public from the discharge of dangerous persons and promoting effective treatmen t of sexually violent persons." 287 Wis. 2d at 33. In addition, KDADS, as the agency charged with enforcing the SVPA
, also has responsibility to make sure t he court has received and filed the annual reports the age ncy completes and sends to it. An attorney filing a document
with the court makes sure that the court has received and file

- stamped the document. We should expect no less from an agency of the State that is statutorily required to file important documents with the court that impose certain responsibility on the court for action. Both KDADS and the Attorney General's Office play an essential role in the

process. Adequate case management tools need to be in place or risk the filing of mandamus actions or even actions for proper redress under 42 U.S.C. § 1983 (2016) . The goal is to make sure the SVP receives all the process due him or her under our
constitution and our statutes. Just as we have found an SVP should not be allowed to sit on his or her rights and then claim the deprivation of rights 6 years earlier, the court and
KDADS should not be able to s hirk their responsibilities by eventually providing a hearing that was due all along

.23

Affirmed.

* * *

A TCHESON , J. , concurring: I concur in the result affirming the dismissal of Matthew B. Griffin's petition for habeas corpus relief under K.S.A. 2015 Supp. 60

- 1501. Griffin has failed to show any legal basis for the relief he seeks

—his release from

trea tment and detention as a sexually violent predator. See K.S.A. 2015 Supp. 59

- 29a01
et seq.