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Matthew Paul Markovich v. Randall Green

February 8, 2013

MATTHEW PAUL MARKOVICH, APPELLANT,
v.
RANDALL GREEN, ET AL., APPELLEES.



Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Under K.S.A. 22-4506(c), an indigent inmate has a statutory right to the appointment of appellate counsel upon the filing of a notice of appeal of the district court's ruling on a petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501.

The opinion of the court was delivered by: Buser, J.

Remanded with directions.

Before PIERRON, P.J., BUSER and LEBEN, JJ.

Mathew Paul Markovich, pro se, appeals the dismissal of his petition for habeas corpus filed pursuant to K.S.A. 60-1501. Among numerous claims of error, Markovich contends the district court's failure to appoint appellate counsel for him upon the filing of his appeal was a violation of K.S.A. 22-4506(c).

We conclude that under K.S.A. 22-4506(c), an indigent inmate has a statutory right to the appointment of appellate counsel upon the filing of a notice of appeal of the district court's ruling on a petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. Accordingly, we remand to the district court with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Markovich filed his K.S.A. 60-1501 petition for a writ of habeas corpus while incaracerated at the Ellsworth Correctional Facility. In the petition, he alleged numerous violations of his liberty interests at both the Ellsworth facility and the Larned Correctional Mental Health Facility. These violations primarily related to disciplinary actions taken by correctional authorities against Markovich and denial of program credits and good-time credits. Because Markovich had previously filed a federal civil rights case raising similar claims, the Ellsworth County District Court summarily dismissed the K.S.A. 60-1501 petition as duplicative.

Markovich appealed the dismissal to our court. See Markovich v. Green, No. 104,800, unpublished opinion filed February 25, 2011. Our court noted that Markovich's federal case was voluntarily dismissed without prejudice and without a decision on the merits. As a result, the Ellsworth County District Court's dismissal of the K.S.A. 60-1501 petition was reversed and the case was remanded for further proceedings. Slip op. at 5.

Upon remand, the Ellsworth County District Court appointed trial counsel for Markovich. When Markovich was moved to the Hutchison Correctional Facility, however, venue was transferred to the Reno County District Court. Consequently, the Ellsworth County District Court allowed Markovich's appointed counsel to withdraw.

Markovich asked the Reno County District Court to appoint trial counsel, but the court refused after reviewing the petition and concluding it did not contain substantial issues of law or triable issues of fact justifying the appointment. The Reno County District Court held several hearings on Markovich's K.S.A. 60-1501 petition. At the final hearing on September 27, 2011, the court dismissed the petition.

On October 4, 2011, Markovich filed a timely notice of appeal of the dismissal and a request for appointment of appellate counsel with the Reno County District Court. In support of his request, Markovich filed a statement of his inmate account to establish his indigency. The record does not show whether the Reno County District Court ruled on the request for appointed appellate counsel. Next, Markovich filed a motion for appellate counsel with our court, which initially denied the request. Markovich also petitioned our Supreme Court for ...


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