text:
1. A defendant who has been convicted of a felony and has appealed directly from that conviction has a statutory right to effective assistance of counsel when filing a petition for review in the direct appeal.
2. When a claim is made that counsel was ineffective for failing to file a petition for review following a negative outcome in a direct appeal from a felony conviction and sentence, the standards or test to be applied are: (1) If a defendant has requested that a petition for review be filed and the petition was not filed, the appellate attorney provided ineffective assistance; (2) a defendant who explicitly tells his or her attorney not to file a petition for review cannot later complain that, by following instructions, counsel performed deficiently; (3) in other situations, such as where counsel has not consulted with a defendant or a defendant's directions are unclear, the defendant must show (a) counsel's representation fell below an objective standard of reasonableness, considering all the circumstances; and (b) the defendant would have directed the filing of the petition for review. A defendant need not show that a different result would have been achieved but for counsel's performance.
3. If the defendant in this case can establish ineffective assistance of counsel in the failure to file a petition for review in his direct appeal, the appropriate remedy is to allow the filing of a petition for review out of time.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 2, 2006. Appeal from Johnson district court; STEPHEN R. TATUM, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded with directions. Modified opinion filed October 15, 2007.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Brent Getty and Heather Cessna, of the same office, were with him on the briefs for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.
Jean Gilles Phillips, Elizabeth Seale Cateforis, and Alice C. White, of University of Kansas School of Law, of Lawrence, were on the brief for amicus curiae The Paul E. Wilson Defender Project.
The opinion of the court was delivered by
LUCKERT, J.: This case raises two principal questions. First, does a criminal defendant whose felony conviction and sentence have been affirmed by the Court of Appeals have a right to effective assistance of appellate counsel when filing a petition requesting this court's discretionary review of the Court of Appeals' decision? Second, if a defendant does have such a right in a direct appeal, is the right denied when counsel fails to file a petition after the defendant has requested that a petition be filed? To resolve the second question, we must decide whether the traditional analysis for ineffective assistance of counsel, a modified version of that test, or an entirely different test will be applied. Our analysis requires us to consider several ancillary issues regarding the procedure and remedy to be applied.
A review of the procedural history of this case explains more fully the context of the issues. In 1997, Mark Weldon Kargus was charged with aggravated kidnapping and rape. The district court appointed counsel who withdrew after Kargus retained private counsel. Following a jury trial, Kargus was convicted as charged and sentenced. The Court of Appeals affirmed his convictions on direct appeal in State v. Kargus, No. 82,486, unpublished opinion filed June 2, 2000. A petition seeking review of that decision was not filed.
In March 2003, Kargus filed a pro se K.S.A. 60-1507 motion in which he argued, inter alia, that he received ineffective assistance of appellate counsel in the direct appeal because his attorney failed to file a petition for review despite Kargus' request that one be filed. The district court found that a petitioner does not have a constitutional right to counsel for the purpose of pursuing a discretionary review in the Kansas Supreme Court and summarily denied Kargus' K.S.A. 60-1507 motion.
Kargus appealed to the Court of Appeals. A Court of Appeals panel determined Kargus' right to effective appellate counsel on direct appeal extended to the petition for review phase of the appeal. Based upon Kargus' argument that his appellate counsel was ineffective for failing to file a petition for review after Kargus had asked his attorney to do so, the Court of Appeals determined the representation was ineffective and prejudicial because "filing a petition for review would have been successful at least to the extent of exhausting State remedies and thereby preserving the issue for federal habeas review." Kargus v. State, No. 92,432, unpublished opinion filed June 2, 2006, slip op. at 3. The panel observed that there was no evidence received from Kargus' appellate counsel, despite Kargus' allegation that he personally requested his attorney file a petition for review. Thus, the Court of Appeals determined that the district court should have conducted an evidentiary hearing on this matter. The case was reversed and remanded for an evidentiary hearing to determine whether an untimely petition for review should be permitted.
The State filed a petition for review, asking this court to resolve an apparent conflict between the holding in Kargus and other Court of Appeals' decisions, both published and unpublished. In particular, the State pointed to a decision of a different Court of Appeals panel in Swenson v. State, 35 Kan. App. 2d 709, 135 P.3d 157 (2006). Swenson was filed 2 weeks before Kargus. The Swenson panel agreed that the defendant had the right to effective assistance of counsel in seeking review of a Court of Appeals' decision. 35 Kan. App. 2d at 726. However, the Swenson panel employed a different analysis than that used by the Kargus panel when determining whether the failure to file a petition resulted in ineffective assistance of counsel. The Swenson panel held that, even if the defendant's appellate counsel was deficient in failing to file a timely petition for review, the defendant failed to meet the prejudice prong of the test for ineffective assistance of counsel because the petition would not have been granted. 35 Kan. App. 2d at 726-27.
We granted the State's petition for review in this case and the defendant's petition for review in Swenson v. State, No. 94,207, this day decided.
On our review of the Court of Appeals' decision in this case, the State argues that we should adopt the Swenson panel's analysis and conclude that a defendant's claim of ineffective assistance of counsel must fail where the defendant cannot show prejudice by appellate counsel's failure to file a discretionary petition for review. The defendant and a brief of amicus curiae, filed by counsel representing the Paul E. Wilson Defender Project, argue there is a right to effective assistance of counsel in pursuing a petition for review and a failure to file a petition for review is either presumptively prejudicial or a structural error that automatically results in a determination of ineffective assistance of counsel.
Right to Effective Assistance of Counsel
The first consideration is the question of law of whether Kargus had the right to effective assistance of counsel in pursuing discretionary review of the Court of Appeals' decision in his direct appeal. The district court ruled that there is no constitutional right to counsel in order to pursue a discretionary review before this court, citing Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993).
In Foy, the appellant argued his counsel was ineffective for failing to inform him that he could petition for review to this court. The Foy court observed that this court's decision whether to review a Court of Appeals' decision is discretionary. 17 Kan. App. 2d at 775-76; see K.S.A. 20-3018(b); K.S.A. 2006 Supp. 22-3602(e); Supreme Court Rule 8.03 (2006 Kan. Ct. R. Annot. 62). It further noted that, in Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982), the United States Supreme Court held that a criminal defendant could not be deprived of effective assistance of counsel for retained counsel's failure to file a timely application for review in the Florida Supreme Court because the defendant had no constitutional right to counsel in a discretionary appeal. Foy, 17 Kan. App. 2d at 775-76.
In addition to Wainwright, the Foy court cited Robinson v. State, 13 Kan. App. 2d 244, 250, 767 P.2d 851, rev. denied 244 Kan. 738 (1989), where it was held that the dismissal of the defendant's appeal of the denial of his K.S.A. 60-1507 motion due to the failure of his attorney to timely perfect the appeal did not violate the defendant's due process rights because the constitutional right to counsel does not exist in state postconviction proceedings. Foy, likewise, held that the appellant did not have a constitutional right to counsel to pursue a discretionary review in the Kansas Supreme Court. Consequently, the panel held that Foy was not denied effective assistance of counsel when his attorney failed to file a petition for review or failed to let him know that he had the option to do so. 17 Kan. App. 2d 775, Syl.
Ten years later, this court overruled Robinson in deciding Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004), the case on which Kargus relies to argue that he has a right to counsel. In Brown, this court held that, although there is no constitutional right to appointed counsel to pursue a K.S.A. 60-1507 motion, there is a statutory right under certain circumstances to counsel for collateral attacks and such a right includes a right to have the effective assistance of counsel. 278 Kan. 481, Syl.; see K.S.A. 2006 Supp. 22-4522(e)(4).
The Brown court looked to other jurisdictions where courts held that some standard of competence is required by appointed counsel and quoted the following from Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965):
"'Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.'" Brown, 278 Kan. at 484.
This court agreed with the Tenth Circuit Court of Appeals' analysis.
In overruling Robinson and its progeny, this court held that, where there was a statutory right to counsel, there was a right that counsel be effective and competent. It was also pointed out that it would be impossible for Brown to obtain postconviction relief if he was not permitted to file his appeal out of time. Because Brown's counsel did not timely inform him of the right to appeal the denial of his K.S.A. 60-1507 motion, this court held he should be permitted to file his appeal out of time. 278 Kan. at 484-85.
In this case, the Court of Appeals implicitly expanded the Brown analysis to Kargus' case, observing that "Foy's analysis has changed since Brown." In support of this reasoning, the panel recognized that another unpublished Court of Appeals' decision, Swarthout v. State, Nos. 93,133 and 93,134, unpublished opinion filed May 13, 2005, relied on Brown and held that counsel's failure to file a petition for review denied Swarthout's statutory right to effective assistance of counsel.
In its petition for review, the State distinguishes Brown because it dealt with a defendant's appeal of the denial of his K.S.A. 60-1507 motion, whereas the present case deals with the discretionary review of a Court of Appeals' decision in a direct appeal from a conviction. The State further notes that nowhere in Brown did this court specifically state that we were overruling Foy.
While the State is correct that Brown did not overrule Foy, it is incorrect in implying that Foy must be overruled to reach the conclusion suggested by Kargus. The Foy panel considered only the issue of whether there was a constitutional right to counsel. The panel did not discuss a statutory right, and Kargus argues that, like the situation in Brown, he was statutorily entitled to effective assistance of counsel in pursuit of his petition for review. Brown, however, did not address the question now before us. In fact, no decision of this court specifically addresses the issue of whether there is a statutory right to counsel when filing a petition for review.
The determination of whether there exists a statutory right to counsel for the purpose of filing a petition for review requires construction of statutes relating to appellate procedure and appointment of counsel. "The interpretation of a statute is a question of law over which this court has unlimited review." State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The general rules we apply when construing statutes are well-settled:
"The fundamental rule of statutory construction, to which all other rules are
is that the intent of the legislature governs. An appellate court may consider various aspects of a
statute in attempting to determine the legislative intent. The court must first look at the intent as
expressed in the language of the statute. When the language is plain and unambiguous, an
appellate court is bound to implement the expressed intent. Ordinary words are to be given their
ordinary meanings without adding something that is not readily found in the statute or
that which is readily found therein. An appellate court must consider all of the provisions of a
statute in pari materia rather than in isolation, and these provisions must be
reconciled, if
possible, to make them consistent and harmonious. As a general rule, statutes should be
interpreted to avoid unreasonable results." State v. McElroy, 281 Kan. 256, Syl.
¶ 4, 130 P.3d 100 (2006).
In applying these rules to the question before us, we cannot look to one specific statute for the answer; no one statutory provision explicitly states whether a defendant has a right to counsel when seeking this court's review of a Court of Appeals' decision in a direct appeal of a felony conviction and sentence. However, there are several provisions which, when read together, lead us to the conclusion that there is such a statutory right.
First, K.S.A. 2006 Supp. 22-4503(a) provides that a defendant charged with a felony "is entitled to have assistance of counsel at every stage of the proceedings against such defendant." (Emphasis added.) K.S.A. 2006 Supp. 22-4505(b) makes it clear that this reference includes the right of indigent defendants to have the assistance of appointed counsel during a direct appeal. That statute directs that, after determining a felony defendant is not financially able to employ counsel, "the court shall appoint counsel from the panel for indigents' defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents' defense services, to represent the defendant and to perfect and handle the appeal." (Emphasis added.) K.S.A. 2006 Supp. 22-4505(b). Several other statutory provisions reference a defendant's right to appeal and the right to have appointed counsel, some in the context of imposing a duty upon the trial court to inform the defendant of those rights. See, e.g., K.S.A. 22-3424(f) ("After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis"); K.S.A. 2006 Supp. 22-4505(a) (trial court "shall inform the defendant of such defendant's right to appeal the conviction to the appellate court having jurisdiction and that if the defendant is financially unable to pay the costs of such appeal," the defendant may request appointed counsel).
These statutes do not explicitly mention petitions for review. Consequently, we must determine whether the legislature intended to provide the right to counsel for purposes of filing a petition for review when it granted the right to counsel during "every stage of the proceedings," K.S.A. 2006 Supp. 22-4503(a), and required judges to appoint counsel to "handle the appeal" for indigent defendants, K.S.A. 2006 Supp. 22-4505(b). Important to our consideration of this question is another statutory provision, K.S.A. 20-3018(b), which states that, when the Court of Appeals has initial jurisdiction, "[a]ny party aggrieved by a decision" of that court "may petition the supreme court for review within thirty (30) days after the date of such decision." Thus, while the determination of whether review will be granted is discretionary with this court, the right to petition for review is not qualified or contingent. See K.S.A. 20-3018(b); K.S.A. 2006 Supp. 22-3602(d). It is a right which is a part of "the appeal" and one of the stages in the proceedings to which the right to counsel attaches.
To construe these statutes otherwise, i.e., to determine that the right to counsel terminates once the criminal defendant's appeal has been decided by the Court of Appeals, would lead to the unreasonable result that an indigent criminal defendant would be left to pursue his or her case pro se in the Kansas Supreme Court. If such was the intent, an appellate attorney would have the obligation merely to inform the defendant of the fact that his or her conviction has been affirmed by the Court of Appeals and that the defendant could pursue discretionary review on his or her own. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. 1997) (no constitutional or statutory right to counsel on discretionary appeal; counsel need only inform defendant of result of direct appeal and availability of discretionary review). Alternatively, if the conviction had been reversed and the State sought review, a defendant would be left to argue pro se why the Court of Appeals' decision was correctly decided. Clearly, however, the State's continuation of the appellate process would be a continuation of proceedings against the defendant. Moreover, whether the petition was filed by a defendant or the State, the legislature clearly intended a defendant would have a right to be represented by counsel when a petition for review is granted by this court. That being so, it is difficult to surmise why the Kansas Legislature would intend to leave a criminal defendant without counsel in his or her efforts to petition for review. In fact, to read K.S.A. 2006 Supp. 22-4505(b) as providing a right to counsel in proceedings before the Court of Appeals but not in proceedings in which this court reviews a Court of Appeals' decision leads to an illogical result, and statutes are to be construed to avoid unreasonable results. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005).
We conclude, therefore, that the Kansas Legislature intended that a defendant's right to counsel in the direct appeal of a felony conviction extends to all levels of the state appellate process, including the filing of the petition for review.
That statutory right to counsel includes the right to effective assistance of counsel. Cf. Brown, 278 Kan. at 484. We hold that Kargus, as a convicted felon who appealed directly from his conviction and sentence, had the statutory right to effective assistance of counsel when filing a petition for review in his direct appeal.
Ineffective Assistance of Counsel
Based upon our conclusion that Kargus was entitled to have effective assistance of counsel in pursuing a petition for review in his direct appeal, the next step is to determine whether his appellate counsel was ineffective for failing to file a petition for review after Kargus had allegedly requested the filing. Before reaching this ultimate issue we must answer an antecedent question: What standard applies or what test is utilized to make a determination of ineffective assistance of counsel when the complaint is that counsel failed to file a petition for review?
As we have noted, the State argues we should employ a test that would require Kargus to establish that his appellate counsel's conduct caused him prejudice. To do so, the State argues Kargus must show his petition for review would have been granted.
The State's argument follows a traditional analysis of ineffective assistance of counsel claims that applies when it is alleged that counsel committed specific errors during the course of a proceeding. Under this analysis, to establish denial of effective assistance of counsel, a defendant must show: (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985); see also State v. Mathis, 281 Kan. 99, 109-10, 130 P.3d 14 (2006); State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004). The performance and prejudice prongs of this traditional Strickland ineffective assistance of counsel inquiry are each mixed questions of law and fact and, on appeal, require de novo review. State v. Griffin, 279 Kan. 634, 643, 112 P.3d 862 (2005).
Under the performance prong of the traditional Strickland test, a defendant must show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. In making this determination courts apply a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Consistent with this presumption, judicial scrutiny of counsel's performance is highly deferential, and every effort is made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Under the prejudice prong of the traditional Strickland ineffective assistance of counsel test, the defendant is required to establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. 283 Kan. at 90.
The State suggests that because Kargus failed to establish a reasonable probability that his petition for review would have been granted, especially in light of what the Court of Appeals characterized on direct appeal as "overwhelming evidence," he failed to establish prejudice, and we must conclude he failed to meet his burden.
In response to this argument, Kargus does not focus on the merits of the prejudice argument but argues the failure to file a petition for review is presumptively prejudicial or, alternatively, that we should find structural error requiring automatic reversal. In making this argument, Kargus notes that the traditional Strickland prejudice analysis does not apply in circumstances where counsel fails to provide any assistance in a phase of the proceeding. Within the context of an appellate proceeding, a counsel's failure to provide any assistance arises typically because counsel fails to file a timely notice of appeal. The case law that has developed regarding the failure to file a notice of appeal explains Kargus' argument.
The leading case regarding the test for ineffective assistance of counsel when a direct appeal is not timely filed is Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). Flores-Ortega arose after the defendant's counsel failed to timely file a notice of appeal even though she had stated at the sentencing hearing that she would do so. After counsel's failure to act, the defendant attempted to file a late notice of appeal, but it was rejected as untimely, and his efforts to secure state habeas relief were unsuccessful. The defendant then filed a federal habeas petition, alleging ineffective assistance of counsel based on his trial counsel's failure to file a notice of appeal after promising to do so.
The Court considered how to apply the traditional Strickland ineffective assistance of counsel test in this context. In doing so, it discussed both prongs of the Strickland analysis. Regarding the first prong of the test, the court stated:
"We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, [23 L. Ed. 2d 340, 89 S. Ct. 1715] (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 143 L. Ed. 2d 18, 119 S. Ct. 961 (1999) ('[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit'). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." Flores-Ortega, 528 U.S. at 477.
The facts in Flores-Ortega did not fall at either end of the spectrum; rather, the defendant had not given clear directions of whether to file an appeal. Under those circumstances, the Court refused to adopt a bright-line rule and concluded a case-by-case evaluation was necessary. The inquiry must begin with the question of whether counsel consulted with his or her client.
"If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. [Citation omitted]. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?" 528 U.S. at 478.
Noting that this question was unanswered under the facts, the Court moved to a discussion of the prejudice prong of the traditional Strickland test. Under the prejudice test of Strickland, as summarized by the Flores-Ortega Court, courts
"'normally apply a "strong presumption of reliability" to judicial proceedings and require a defendant to overcome that presumption' [citations omitted] by 'show[ing] how specific errors of counsel undermined the reliability of the finding of guilt.' [Citation omitted.] Thus, in cases involving mere 'attorney error,' we require the defendant to demonstrate that the errors 'actually had an adverse effect on the defense.' [Citations omitted.]" 528 U.S. at 482.
The Court concluded that the traditional Strickland approach of applying a presumption of reliability did not apply when counsel failed to file an appeal.
"In some cases, however, the defendant alleges not that counsel made specific errors in the course of representation, but rather that during the judicial proceeding he was–either actually or constructively–denied the assistance of counsel altogether. 'The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage.' [Citation omitted.] The same is true on appeal. [Citation omitted.] Under such circumstances, '[n]o specific showing of prejudice [is] required,' because 'the adversary process itself [is] presumptively unreliable.' [Citations omitted.]
"Today's case is unusual in that counsel's alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel's deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel's deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether . . . . [T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because 'the adversary process itself' has been rendered 'presumptively unreliable.' [Citation omitted.] The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any '"presumption of reliability'" [citation omitted] to judicial proceedings that never took place." Flores-Ortega, 528 U.S. at 483.
Under this line of authority, the federal courts have concluded that the right to a direct appeal of a criminal conviction "cannot effectively be replaced by a collateral prejudice assessment." United States v. Snitz, 342 F.3d 1154, 1157 (10th Cir. 2003). In other words, the collateral review sought by the State in this case and applied by the panel in Swenson would not occur under the Flores-Ortega line of cases; rather, prejudice would be presumed.
A presumption of prejudice is not the same, however, as finding prejudice per se. The Flores-Ortega Court rejected that position, stating:
"[A] per se prejudice rule ignores the critical requirement that counsel's
deficient performance
must actually cause the forfeiture of the defendant's appeal. If the defendant cannot demonstrate
that, but for counsel's deficient performance, he would have appealed, counsel's deficient
performance has not deprived him of anything, and he is not entitled to relief. [Citation omitted.]
Accordingly, we hold that, to show prejudice in these circumstances, a defendant must
demonstrate that there is a reasonable probability that, but for counsel's deficient failure to
with him about an appeal, he would have timely appealed." Flores-Ortega, 528 U.S.
at 484.
Considering this test in the context of the parties' arguments, it is apparent that the Flores-Ortega opinion, at a minimum, provides an example of the application of the presumptive prejudice test when counsel fails to perform at all and, arguably, provides support for application of such a test when counsel fails to file a petition for review.
There are, however, several considerations in determining whether Flores-Ortega should be applied in this case. First, Flores-Ortega dealt with a constitutional right to counsel at a critical stage of a proceeding. In contrast, this case involves a statutory right and one which, given the discretionary nature of whether the petition is granted or denied, would not be considered critical. See Wainwright, 455 U.S. at 587-88. Thus, some of the rationale and language of the Flores-Ortega decision is not applicable to this case.
Still, the critical distinction between Flores-Ortega and Strickland suggests that Flores-Ortega's analysis is the more appropriate test to be applied in this case. That distinction is that Flores-Ortega applies when counsel's performance causes a forfeiture of a proceeding and Strickland applies when counsel's alleged deficient performance occurs during the course of a proceeding and the deficient performance renders the proceeding unfair. Regardless of whether the right to counsel is statutory or constitutional, when felony charges place liberty at issue, and there is a right to effective assistance of counsel at a specific stage of the proceeding that is forfeited because counsel failed to protect the defendant's right to the proceeding, the Flores-Ortega test applies.
The second consideration is that Kansas has never directly applied Flores-Ortega to determine whether an attorney was ineffective in failing to file an appeal. The decision has been cited in our cases but not in the same factual context that it arose. See Bledsoe, 283 Kan. at 94 (counsel's "performance falls short when measured against the yardstick of objective reasonableness"); State v. Muriithi, 273 Kan. 952, 962, 46 P.3d 1145 (2002) (noting that states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented and that "[n]either the legislature nor the courts of this state have shown any inclination to deviate from the case-by-case reasonableness standard of Strickland and Chamberlain [v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985)]").
Rather, Kansas has taken a somewhat different approach in dealing with a failure to file an appeal. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), we recognized that in the interest of fundamental fairness an untimely appeal will be allowed in those cases where a defendant was either: (1) not informed of his or her appellate rights; (2) not furnished with an attorney to perfect an appeal; or (3) furnished with an attorney for that purpose who failed to perfect and complete an appeal. 230 Kan. at 735-36 (relying on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 [1972]). If one of these exceptions applies, the traditional two-step Strickland analysis is not utilized.
Like the Strickland analysis, the Ortiz standard can, in limited circumstances, require a two-step process. The first step of the Ortiz analysis focuses upon the three exceptions and is applied in every Ortiz analysis. Under the second step, "'A defendant properly informed of his appellate rights may not "let the matter rest" . . . and then claim that he did not waive his rights to appeal.'" 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130, 137 [5th Cir. 1979]). This showing is a type of prejudice requirement. In Ortiz, the defendant signed a written waiver of his right to appeal and he was, therefore, denied relief. 230 Kan. at 736.
Under different facts, however, a court must permit an appeal out of time if any of the narrow Ortiz exceptional circumstances are met and, when required, prejudice is established. See State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005); State v. Willingham, 266 Kan. 98, 99-102, 967 P.2d 1079 (1998).
While this Ortiz standard has some similarities to the Flores-Ortega standard, there are also differences. These differences may be explained, in part, by the historical and precedential background of the cases and the difference in federal and Kansas rules of procedure. Historically, it is important to note that Ortiz was decided in 1982, 2 years before Strickland. The difference in precedent is, therefore, understandable. The Ortiz court cited this court's previous decision of Brizendine, 210 Kan. 241, as authority for the holding.
In Brizendine, the defendant was convicted by a jury of burglary. He subsequently told his attorney he wished to appeal the conviction, but due to some misunderstanding between client and counsel, no appeal was ever filed. The Brizendine court held that the defendant had the option of taking an appeal out of time due to his counsel's error. As support for this holding, Brizendine cited
"a number of federal cases involving similar factual situations where an accused was denied effective assistance of counsel thereby resulting in the denial of an appeal from a conviction. In each case the court held that an outright discharge of the prisoner was not proper but rather he was entitled to an opportunity to take an out-of-time appeal from his original conviction. (Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 [1967]; Atilus v. United States, 406 F.2d 694 [1969]; Benoit v. Wingo, 423 F.2d 880 [1970]; Kent v. United States, 423 F.2d 1050 [1970].)" Brizendine, 210 Kan. at 244.
Since 1972 when Brizendine was decided and even since 1982 when Ortiz was decided, federal cases have refined the analysis relating to ineffective assistance of counsel claims. Part of this refinement includes the adoption of the Strickland test in 1984 and application of the Strickland test to those Anders-type situations which served as the basis for the holding in Brizendine. See Smith v. Robbins, 528 U.S. 259, 145 L. Ed. 2d 756, 120 S. Ct. 746 (2000); see also Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967) (procedure allowing appellate counsel to withdraw upon filing letter stating that appeal had "no merit" and allowing appellate court to affirm conviction based upon a review of the record did not comport with fair procedure and lacked substantial equality required by the Fourteenth Amendment).
In contrast, Kansas cases applying Ortiz have remained steadfast to the analysis of Ortiz and the federal precedent existing at the time. Consistent with the pre-Ortiz federal jurisprudence, Ortiz combines rationales relating to the duties of counsel and the duties of judges. At the time many of the federal cases cited in Brizendine and Ortiz were decided, Fed. R. Crim. Proc. 32(a)(2) included language identical to K.S.A. 22-3424(5) (Weeks) (now K.S.A. 22-3424[f]). As we noted previously, K.S.A. 22-3424(f) states: "After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis." See also K.S.A. 2006 Supp. 22-4505(a) (trial court "shall inform the defendant of such defendant's right to appeal the conviction to the appellate court having jurisdiction and that if the defendant is financially unable to pay the costs of such appeal," the defendant may request appointed counsel).
Ortiz did not cite to these Kansas statutes, although both were in effect at the time. K.S.A. 22-3424 was enacted in 1970. See L. 1970, ch. 129, sec. 22-3424. Although there were minor amendments to K.S.A. 22-3424 in 1991, 1993, and 1995, since 1995 subsection (f) has remained the same. See L. 1995, ch. 257, sec. 3. K.S.A. 22-4505 was enacted in 1969. See L. 1969, ch. 291, sec. 5. The statute was amended in 1976, 1982, and 1997, but subsection (a) has remained substantially the same. More recently we have cited these statutes as a basis for the Ortiz holding. E.g., Phinney, 280 Kan. at 402; Willingham, 266 Kan. at 100.
In the meantime, federal procedure has diverged. Fed. R. Crim. Proc. 32(a)(2) is now limited to offenses committed before November 1, 1987. The change in procedural requirements may explain, at least in part, the divergence in case law; the federal cases have focused solely upon the obligations of counsel while Kansas cases continue to blend the discussion of the duties of counsel and the duties of judges in informing a defendant regarding the right to appeal. See Willingham, 266 Kan. at 100.
Kansas' loyalty to the Ortiz analysis is not contrary to federal jurisprudence, which does not require a lockstep approach as long as a state's procedures ensure that criminal defendants are well represented. Flores-Ortega, 528 U.S. at 479; Muriithi, 273 Kan. at 962. Ortiz ensures effective representation, allowing the filing of the appeal out of time and, as we have discussed, the divergence is in part due to different requirements of our state statutes.
This discussion of the Strickland, Flores-Ortega, and Ortiz tests frames the question before us: Will we apply the traditional Strickland test and require a showing that the result was affected by counsel's performance, the Flores-Ortega analysis, the Ortiz analysis, or will we find per se or structural error?
We conclude the traditional Strickland test should not be applied. As previously noted, Strickland is designed to deal with specific claims that counsel's performance during a proceeding was deficient. Flores-Ortega and Ortiz consider the claim in the context of a failure to preserve the right to a proceeding, i.e., a complete forfeiture of a right. We agree with the federal court's analysis that under such circumstances the collateral prejudice review required by Strickland does not provide an adequate remedy.
In considering whether to apply Flores-Ortega or Ortiz, we note that in a situation such as alleged here–where Kargus says he told counsel to file a petition for review–the tests applied in the two cases can lead to the same outcome. On the one hand, if the Flores-Ortega analysis was applied in this case, a court could find that appellate counsel's performance fell below an objective standard of reasonableness. This conclusion would be appropriate because, if counsel did not follow Kargus' directive, the failure to file a petition for review ended the direct appeal that Kargus wished to continue and deprived this court of jurisdiction to review the Court of Appeals' decision directly. To continue the direct appeal, K.S.A. 20-3018(b) requires that a petition for review be filed within 30 days of the Court of Appeals' decision, and Supreme Court Rule 8.03 (2006 Kan. Ct. R. Annot. 62) clarifies that the 30-day time period is jurisdictional. Because the 30-day deadline is jurisdictional, there cannot be a strategic reason to miss the deadline if this court's review is desired. See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996) (counsel's conduct deficient for failing to submit petition for review before 30-day deadline which was jurisdictional).
As to the second prong of the test, i.e., prejudice, if the decision in Flores-Ortega applies, Kargus would not have to show that ultimately his appeal would have been successful. Rather, there would be a presumption of prejudice.
On the other hand, under the Ortiz analysis, we would apply the third exception–Kargus alleges his attorney failed to complete the appeal. Based upon the statutory language providing that "[a]ny party aggrieved by a decision" of the Court of Appeals "may petition the supreme court for review within thirty (30) days after the date of such decision," K.S.A. 20-3018(b), if Kargus asked his attorney to file the petition, he had a right to have counsel comply with that request. His request to file the petition and his attorney's failure to do so would satisfy the Ortiz prejudice requirement.
As this analysis indicates, the two lines of cases agree that when a defendant, such as Kargus, has directed a filing and counsel fails to follow that direction, counsel's performance deviates from an objective standard of reasonableness. Under either test, if the evidence supports Kargus' allegation that he requested the filing of a petition for review, he would have established ineffective assistance of counsel. Additionally, the two cases intersect at the stage of the prejudice analysis–a showing that Kargus would have filed the petition for review is sufficient to establish prejudice under either Flores-Ortega or Ortiz' test.
If, however, on remand the evidence at a hearing shows that there was not clear direction from Kargus or there is no evidence of any communication between Kargus and counsel regarding the petition for review, which of the two tests should apply?
Application of Ortiz in such a situation is problematic. As discussed, the rationale for Ortiz is based largely on the statutory requirements that a defendant be informed by the court of his or her right to appeal. We have never extended that requirement to mean that a sentencing judge must explain appellate procedure, including the right to file a petition for review if appellate jurisdiction is initially vested in the Court of Appeals and the results of the Court of Appeals' decision are adverse to the defendant. We do not intend by this decision today to impose that duty.
Additionally, however, Ortiz does relate to counsel's failure to perfect and complete the appeal. In this regard, we do not find it appropriate to extend the third Ortiz exception–where counsel fails to complete an appeal–to mean that a petition for review must be filed automatically in all cases in which an appeal has been taken. Although we have held that the petition is part of the appeal process and a segment of that process to which parties aggrieved by a Court of Appeals' decision may avail themselves, the petition for review phase is a different stage of the appeal and many considerations must be taken into account in the determination of whether to file a petition for review. If we were to extend the third exception of completing an appeal to require an automatic filing of a petition for review, we would, in effect, be saying a structural error had occurred. We have never found the failure to file an appeal to be structural error; given that consideration, there would be no basis to reach that conclusion with regard to a particular phase of an appeal. Therefore, Ortiz provides no guidance on how to deal with any situation other than, arguably, where counsel failed to follow directions to file the petition for review.
The amicus curiae and Kargus suggest an alternative to fill the void: find the conduct per se unreasonable. Although made in the context of a prejudice argument, the argument suggests the failure to file a petition is per se unreasonable because a prisoner's state remedies are not exhausted and, as a result, federal habeas relief is unavailable. It is this exhaustion requirement that the Court of Appeals panel relied upon to find prejudice when applying a traditional Strickland analysis.
The exhaustion requirement arises from 28 U.S.C. § 2254(b)(1)(A) (2000) which limits the availability of relief to cases where the applicant has exhausted state remedies or 28 U.S.C. § 2254(b)(1) "(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant."
Although there are cases applying the narrow exceptions recognized in 28 U.S.C. § 2254(b)(1)(B), federal courts generally do not grant an application for relief under 28 U.S.C. § 2254 unless the applicant has exhausted the remedies available in the state courts. See Coleman v. Thompson, 501 U.S. 722, 731, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Claims asserted in a petition under § 2254 are exhausted if the petitioner "fairly presented" the claims to each level of the state courts. E.g., Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000); Parkhurst v. Shillinger, 128 F.3d 1366, 1368 (10th Cir. 1997); see also O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 144 L. Ed. 2d 1, 119 S. Ct. 1728 (1999) (recognizing exhaustion requirement of 28 U.S.C. § 2254 as a rule of comity, designed to permit state courts to have a fair opportunity to address their alleged violation of federal constitutional law before those errors are considered by the federal courts); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (citing Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 [1971]) (same); Ex Parte Royall, 117 U.S. 241, 251-52, 29 L. Ed. 868, 6 S. Ct. 734 [1886]) (same); Moore v. Quarterman, 454 F.3d 484, 491 (5th Cir. 2006) (exhaustion requirement is not jurisdictional but reflects policy of federal-state comity).
These authorities give credence to Kargus' argument. His argument, however, ignores that there are exceptions to the exhaustion requirement, albeit narrow ones. Where exceptions exist, it is inappropriate to adopt a per se rule.
These conclusions bring us back full circle to the need for a determination of what is objectively reasonable conduct of counsel at the petition for review stage of the proceeding. Flores-Ortega provides a measuring stick for that determination; Ortiz does not. Consequently, we conclude the Flores-Ortega test provides a framework to be applied here.
We hold that when a claim is made that counsel was ineffective for failing to file a petition for review following a negative outcome in a direct appeal from a felony conviction and sentence, the standards or test to be applied are: (1) If a defendant has requested that a petition for review be filed and the petition was not filed, the appellate attorney provided ineffective assistance; (2) a defendant who explicitly tells his or her attorney not to file a petition for review cannot later complain that, by following instructions, counsel performed deficiently; (3) in other situations, such as where counsel has not consulted with a defendant or a defendant's directions are unclear, the defendant must show (a) counsel's representation fell below an objective standard of reasonableness, considering all the circumstances; and (b) the defendant would have directed the filing of the petition for review. A defendant need not show that a different result would have been achieved but for counsel's performance.
To avoid the difficulties of proof inherent in the determination of which of these three categories applies, we strongly urge counsel to follow the teaching of K.A.R. 105-3-9(a)(3) which directs counsel to "file notice of appeal in a timely manner, unless a waiver of the right to appeal has been signed by the defendant." The guidance, although not directly applicable, is sound: Written communications document the exchange between counsel and the defendant. It would be prudent for counsel to document any such exchange regarding filing of a petition for review.
In this case we have no idea if there is written communication or any communication. No evidence has been presented and no findings of fact have been made. Consequently, the test we adopt today cannot be applied on the record before us. Typically, such a situation would cause us to remand the case so that the district court can conduct a hearing.
Before we remand the case, however, we must determine whether the district court could grant the relief requested by Kargus. Kargus argues that once he establishes that he requested counsel to file a petition for review, the district court has the power to grant relief under a K.S.A. 60-1507 motion and, in doing so, grant jurisdiction to allow the filing of a petition for review within 30 days of the district court's ruling. This remedy would be consistent with the remedy allowed in Ortiz for out-of-time direct appeals. See 230 Kan. at 735. Ortiz obtained the remedy by filing a motion pursuant to K.S.A. 60-1507. See also State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258, 548 N.W.2d 45 (1996) (on claim of ineffective assistance of counsel in filing for discretionary review, relief granted in case; denied retroactively to other defendants in similar circumstances). We conclude, therefore, that the relief should be granted to Kargus and to the defendant in the companion case Swenson v. State, No. 94,207, this day decided. We do not reach the question of application of this decision to other defendants.
To implement the holdings of this decision, this case is remanded for an evidentiary hearing. If on remand the district court determines that Kargus has established ineffective assistance of counsel, the district court should allow counsel 30 days in which to file a petition for review from the Court of Appeals' unpublished decision filed June 2, 2000. See Ortiz, 230 Kan. at 735.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded with directions.
JOHNSON, J., not participating.
BRAZIL, S.J., assigned.1
1REPORTER'S NOTE: Senior Judge J. Patrick Brazil was appointed to hear case No. 92,432 vice Justice Johnson pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616.


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Robzula wrote:I want something like the Town line, but in Space. No guns, no bad guys, no conflict, just people (humans AND aliens) trying to make their way in everyday life... in space!
My understanding is anything goes. Anything that LEGO would conceivably make at least.Robzula wrote:This is just original themes, right?
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The 27th annual "A Country Christmas" at the Opryland Hotel, Nashville, Tennessee
More than 2 million lights and other decorations ornament the hotel and grounds during the holiday season.
The hotel has just reopened in time for the holiday season. Nashville experienced a devastating flood in early May of this year and the hotel suffered more than $200 million dollars in damages. Parts of the complex were under approximately 3 meters (10 feet) of water.
The United States is one of the most diverse countries on earth, jam packed full of amazing sights from St. Patrick's cathedral in New York to Mount Hollywood California.The Northeast region is where it all started. Thirteen British colonies fought the American Revolution from here and won their independence in the first successful colonial rebellion in history. Take a look at these rolling hills carpeted with foliage along the Hudson river here, north of New York City.The American south is known for its polite people and slow pace of life. Probably they move slowly because it's so hot. Southerners tend not to trust people from "up north" because they talk too fast. Here's a cemetery in Georgia where you can find graves of soldiers from the Civil War.The West Coast is sort of like another country that exists to make the east coast jealous. California is full of nothing but grizzly old miners digging for gold, a few gangster rappers, and then actors. That is to say, the West Coast functions as the imagination of the US, like a weird little brother who teases everybody then gets famous for making freaky art.The central part of the country is flat farmland all the way over to the Rocky Mountains. Up in the northwest corner you can find creative people in places like Portland and Seattle, along with awesome snowboarding and good beer. Text by Steve Smith.


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The 10 Cases, we hope, is an unpretentious little Bistro with wine as its main focus. We only ever buy 10 cases of the wines that you will find on our list in order to constantly try new things rather than settle for a list of old favourites.
We only have 10 tables, which you can book for lunch or dinner, and a small bar if you prefer a drink and a nibble. We are sadly, due to our size, unable to accommodate tables any larger than 6 in the restaurant, although we do have a private dining room which can seat up to 14 if you should wish.
Our Head Chef, Charles Lee, who has spent significant time training under some of London's most established chefs, produces a constantly changing seasonal menu. Its main focus is on the 3 starters, mains and desserts, as well as a list of daily specials but there is also a wide-ranging menu of little plates for the bar if you feel that way inclined.


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No silver tongue, but Romney gets job done
TAMPA, Fla. — Mitt Romney's acceptance speech won't find its way into any pantheon of memorable convention addresses, but the Republican accepted his party's nomination with remarks that will help him with swing voters in two important ways.
Facing grim polling data about his personal appeal, the usually detached Romney finally offered a glimpse of raw emotion as he discussed his late parents and spoke of his love for his own five sons. Choking up on two occasions, Romney revealed a personal side his aides have been trying to find since he began running for president more than five years ago.
Story Continued Below
Further, the GOP standard-bearer articulated some of the most compelling lines of attack on President Barack Obama he's yet to deliver. Romney, grasping for an edge against a history-making incumbent who scores poorly on the economy but remains well-liked, seemed to find a new implicit message for voters: You redeemed America's promise in 2008, it felt good, but it's OK to let him go.
( Also on POLITICO: The filter: How the media will measure Mitt)
Romney doesn't have a silver tongue. The roof of the convention hall here was never in danger of being brought down by the crowd. But he showed that he was capable of delivering a solid but not spectacular speech with the pressure on. The broad consensus among Romney watchers: about as good as the CEO-turned-governor was going to do.
"It had to be the speech of his political career," said Kevin DeMenna, an Arizona delegate.
What was noticeably lacking, though, was much of an explanation of his policies and how they'd help improve the lives of Americans. This was an introduction more of Romney the man than any attempt to sell a recovery plan.
( PHOTOS: Scenes from the RNC)
It may be enough to give him a boost against Obama, but with the Democrats convening in Charlotte, N.C., next week, Romney's immediate bounce could be short-lived. What Romney officials and other senior GOP officials hope they did this week was cross an acceptability threshold with voters who still have hazy impressions of the Republican.
Yet, befitting a campaign that has been marred by gaffes, Romney's evening wasn't without an awkward moment. The campaign distracted from its own candidate's big night and the convention finale by sending the 82-year-old Clint Eastwood onstage between a touching video about Romney and Florida Sen. Marco Rubio's stirring introducing of the nominee. Eastwood ad-libbed a bizarre stand-up routine in which he pretended to have a dialogue with Obama, as played by an empty stool. Few veteran convention watchers could recall such an odd performance.
"Bill Clinton introducing Michael Dukakis just went to a distant second place as a bizarre moment," emailed NBC's Tom Brokaw, who attended his first convention in 1968.
( Also on POLITICO: RNC 2012: 8 Takeaways)
What Romney advisers hope will be better remembered by up-for-grabs voters were the parts of the former Massachusetts governor's speech that showed a beating heart behind the candidate's stiff exterior.


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Young folks go to Japanese net cafes to surf the web, play video games, read comics, and guzzle soda. Old dudes? Generally speaking, old dudes do not go to internet cafes. Old dudes, generally speaking, go to bars.
Leave it to Japan's most wildly inventive net cafe chain to figure out how to attract salarymen to net cafes like bees on honey.
Net cafe chain Manboo! has always tried to offer more than just computers, video games, and comics. Back in 2004, one branch even rolled out a nail salon for young women to get a manicure.
Now, the Manboo! in Tokyo's Kanda, dubbed Manboo! Plus, is starting a new shoe shine service: sexy shoe shines. According to Manboo!, the shine staffers are all females in their 20s, and they all dress in skirts, low-cut tops, open-back jackets, and glasses. The service was kicked off so that Manboo! can further differentiate itself from other net cafes.
Males who wish to partake need to pay ¥400 (US$4.92) to enter Manboo! for one hour to read magazines, surf the web, play PC games, and watch dirty movies. Female customers are only ¥300 ($3.69), and their booths are located on a separate floor from the male customers. Manboo! Plus is currently running a special "grand opening" deal: the entrance fee for everyone is ¥100 ($1.23) for one hour.
Other free services include showers, phone chargers, and slacks pressing.
Website ZakZak checked out the shoe shine service, noting that a 21 year-old woman who resembled actress Misako Yasuda showed up in secretarial garb, ready to shine his shoes.
The shoeshine room is gaudy and sleazy looking, but that's probably the point.
"I love talking about manga and anime," she told the reporter. "It's nice when you can talk about fun things while shining."
Japanese nightlife is dotted by red light districts, and this shoe shining service seems to blur the line between improper "sexy night clubs" and proper shoe care. The whole thing reeks of the "no-pan kissa" (no panty coffee shops) of the 1980s. Titillation, not sex, is the goal here.
It's highly doubtful that anything more than shining is offered, but Manboo! is clearly taking the trappings of Japanese fuzoku (prostitution) and reworking them into PG-13 for an internet cafe.
In Tokyo, where the nights are seemingly endless, it seems that in some parts of town, manicures just won't cut it—not when your competition is offering way more than polished loafers.
日本初!セクシー系ネットカフェに潜入!胸の谷間がまぶしい~ [ZakZak]


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Sweep By Stingy Pitching
Stingy pitching, solid defense and timely hitting added up to a three-game sweep of the Braves, putting the Phillies closer to a fourth straight division title. The sweep was the first for the Phillies against the Braves since 2001 when they also took a three-game series. That was at the Vet.
Roy-O continued his brilliant mound work last night as the Phillies won their sixth 1-0 game of the season.
Numbers for the big three starters in the series:
22 innings
14 hits
4 runs, all earned
4 walks
17 strikeouts
319 pitches
212 strikes
The bullpen (Madson and Lidge were the only relievers needed)
5 innings
2 hits
0 runs
1 walk
4 strikes
How good was the pitching? Well the Braves were 2-for-9 with runners in scoring position. That's not one game but a three-game total.
Elias Sports Bureau
**The combined 1-hitter (Roy-O- Madson, Brad) last night was the first time since 1954 the Phillies held the Braves to one hit (or no hits). On April 29, 1954, Robin Roberts 1-hit the Braves in Milwaukee.
**The Phillies have won each of Roy-O's last 10 starts, their longest winning streak behind any starting pitcher since 1993, when they won 11 in a row behind Tommy Greene.
**Last night was the 33rd time the Phillies have been held to one run or less this season. What is more amazing, the Phillies have 92 wins.
**Phillies are 28-15 in one-run decisions, 18-5 at Citizens Bank Park.
Final Series
Last three home games of the regular series starts Friday night with the Mets in town.
ComcastSportsNet set a new record for ratings on Monday night (14.0), broke that mark Tuesday night (15.0) and then broke it again Wednesday night (15.2). All this despite a quarterback controversy!


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abc 123, rk wishes he had jeans like me
Quote from: squints on March 30, 2011, 03:56:03 PMabc 123, rk wishes he had jeans like meLOL. But fer realz, us grown ass men need to leave these little girls alone. Just let them be! That awkward stage we all go through is usually confined to our parents VHS tapes, but YouTube has made it so everyone's awkward stage is always on display.


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Here is my most recent video i hope you like it
You can find the answer in the comments on the video.SaulOhio wrote:Great video! Spectacularly beautiful location, great conditions. I envy you.
How does that swiveling helmet camera mount work?
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Politico has pretty much made our day with this one. It's like the DC Summer Interns blog finished college, got a Masters in political science from GW and ended up at the desk of Rep. Jim McDermott (D-Wash.). An exec assistant at a lobbying firm e-mailed the congressman's scheduler/office manager Elizabeth Becton, addressing her as Liz.
And here, all hell breaks loose.
Becton seems to have gone off on a mad tangent, as 19 (yes, 19!) e-mails unravel before our delighted eyes, with the assistant apologizing, oh, in about 17.5 of them. Becton refuses to let it drop, falling into a paranoid hysteria that someone "tricked" the assistant into calling her Liz because THEY KNEW IT WAS SO SO WRONG.
"I REALLY want to know who told you to call me that."
The snippy one-line e-mails go on for awhile, with our dear buddy Liz repeatedly demanding to know who told this person that Liz is a common nickname for Elizabeth, or something. Brace yourself for the big finish....
"Let me put it this way, they don't know me and perhaps they were PRETENDING to know me better than they do and pretended that I go by Liz. They did YOU a disservice.
In the future, you should be VERY careful about such things. People like to brag about their connections in DC. It's a past time for some. It's also dangerous to eaves drop, as you have just found out.
Quit apologizing and never call me anything but Elizabeth again. Also, make sure you correct anyone who attempts to call me by any other name but Elizabeth. Are we clear on this? Like I said, it's a hot button for me.
And please don't call the office and not leave a message. My colleague told me you called while I was away at the Ladies' room. I do sometimes leave my desk."
OK OK OK just stop e-mailing about this and schedule the poor kid's damn meeting!
Politico reports, "McDermott spokesman Mike DeCesare told us Tuesday, 'An apology is being issued as we speak,' adding, 'This isn't reflective of the way we do business in this office.'" Sure, sure. If that's not normally the way you do business, what funny thing are we going to have to read NEXT week?
Please read this hilarious e-mail chain if you have the emotional fortitude.
Oh, by the way -- LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ LIZ! OK?


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You might remember my post a few weeks ago talking about submitting pictures to Threadless for STP's or Street Steam Points. Well, I'm at it again. In my quest to upload photos of all of my Threadless tees, I've added four more and am now just waiting for them to get approved. I've added Threadless by Simon Noynay aka KID_Z, Spoilt by Olly Moss, X-Ray Goggles Work by Tony Aguero, and They're, Their, There by  Florencio Zavala. You can also view these on my Flickr, be sure to add me!
Do you have some Tee-Riffic photos that you'd like to upload to Threadless? If so, then go here to do just that!Â


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Our commitment to you is simple: we deliver marketing and service of exemplary quality, regardless of your home's price range.
In today's market, local, national and international exposure is now paramount: it is what attracts the most qualified buyers, and the highest price for your home.
At Sotheby's International Realty Canada, our claim of global exposure is supported by substance. We market Canadian homes in every neighbourhood and price range to over 16.7 million annual unique visitors on sothebysrealty.com, 2.8 million unique visitors on sothebysrealty.ca, as well as through wallstreetjournal.com, newyorktimes.com, juwai.com, ft.com, jamesedition.com, luxuryestate.com, mansionglobal.com, mansionglobal.com, plus dozens of premier websites and international publications. We are the only real estate company in Canada to deliver over 1.1 billion annual online impressions in an era where over 87% of homebuyers are using the Internet in their real estate search (National Association of REALTORS®, 2015).
Learn how our marketing program measures against the competition's
Highlight unique features of your property with high-resolution, professional photos.
Distinguish your home with professionally printed property brochures.
Showcase the layout and square footage of your home with to-scale floor plans.
Promote your home with targeted mailings.
Market your home with an internationally recognized sign of quality and prestige.
Capture an in-depth, 360-degree perspective of your home with online video.
Reach over 16.7 million unique visitors per year, with over 114 million page views annually.
Showcase your home on Canada's leading website for exceptional properties, with 2.7 million annual unique visitors.
Get your home into the palms of iPhone, BlackBerry, Android, Palm, iPad and standard mobile phone users around the world.
Market your home on a website that receives 40 million monthly visitors to the U.S. edition, 3.5 million monthly visitors to Europe and 2 million to Asia.
Reach ultra affluent buyers in Asia and around the world on websites that have over 5 million registered users with an average personal income of $227,000 USD.
Get exclusive exposure on NYTimes.com, reaching world opinion leaders with 30 million unique visitors each month.
Promote your home on your local and national Multiple Listing Service.
Showcase your home on the homepage of the world's leading luxury property website, where our network receives 2 million annual impressions.
Expose your property to some of the world's most affluent consumers, including over 500,000 visitors from 113 countries each month, to 500,000 annual media impressions.
Feature your home on Real-buzz.com®, the world's largest real estate database of homes for sale from the MLS.
Hosted on both sides of China's internet firewall, Juwai.com is China's largest international property website for Chinese buyers, with over 2 million unique monthly visits.
Provides your home with global exposure in over 160 countries, acting as your hub to the world's most important markets.
A leading financial paper that specializes in the sale of exclusive villas, stately castles, great estates and luxury properties all across Italy.
Countrylife.co.uk is the digital version of Country Life magazine, reaching an affluent global audience that is actively looking to purchase premium property around the world.
Nikkei's digital platform reaches over 29 million monthly readers, giving Japanese consumers access to residential real estate offerings in nearly 70 countries and territories.
This Italian hosted site provides the easiest and most efficient way to search for exceptional properties around the world.
The flagship Chinese website of Singapore Press Holdings (SPH), reaches an audience of over 10 million monthly Chinese language visitors.
Showcase your home on a channel with 400 million monthly active users with more than 80 million photos shared per day.
Connect wealthy global buyers with extraordinary homes, while presenting insightful real estate content and market data.
Promote your home on our unique real estate and lifestyle channel on the world's #1 online video site.
sothebysrealty.com receives top five placement on the world's top three search engines: Yahoo, Google and Bing.
Our search engine optimization and search engine marketing strategies esure that sothebysrealty.com and sothebysrealty.ca have greater exposure and higher rankings than the competition on Google, the number one search engine in the world.
With keyword rich real estate content and internal linking best practices, our websites consistently outrank the competition.
Representing 60% of the online search market share in Russia, sothebysrealty.com invests in a search engine marketing campaign with Yandex.
Showcase your property with us on the world's largest social network, with 1.4+ billion users worldwide.
Showcase your property with us by broadcasting short messages—Tweets—to our followers around common topics through the use of #hashtags.
Display your property with us on Google's very own social network.
Features a desirable real estate demographic comprised of affluent women interested in home décor, interior design and architecture.
Reach a qualified audience of over 264,000 with an average household income of $2.5 million.
Target over 146,000 high net-worth individuals in Asia through this English and Chinese real estate magazine.
Target over 216,000 individuals with an average household income of $1.2 million in this bi-monthly magazine featuring homes in the U.S.' coastal areas, Canada and the Caribbean.
Target 75,195 subscribers of the global financial elite, including Bloomberg Terminal subscribers and financial industry influencers.
Showcase your home to an elite segment of 12,000 Sotheby's Auction clientele.
Reach targeted regional audiences through a luxury lifestyle and real estate magazine.
A monthly circulation of 92,854 reports on top neighbourhoods, schools, workplaces, doctors, restaurants, stores and services to those with an average net worth of $1,200,000.
Target 393,389 global readers where 43% of readers own 2 or more homes and 89% of readers find Country Life in influential in their property buying process.
International New York Times wraps that are distributed at some of the most prestigious events around the world in hotel rooms and on site during large events.
Market your home in a stunning large format magazine enriches readers with sophisticated content related to the art and real estate worlds with international distribution of 50,000.
Showcase your home to over 1.3 million upscale readers around the globe.
Reach buyers through top local publications including the Globe & Mail Toronto, Montreal Gazette, Vancouver Sun, Victoria Times Colonist, and Calgary Herald.
With more than 1.1 million readers, The Globe and Mail is Canada's leading news source.
Connect with the WSJ's affluent global audience of 3.5 million readers across the U.S., Europe and Asia.
Reach an affluent readership of over 421,378 in Asia, Europe, the Middle East, North Africa and the Americas.
Market your home through our network of 950 offices in 70+ countries, including over 30+ Canadian offices.
Display your home on flat screens around the world in most of the Sotheby's International Realty and Sotheby's auction house locations in our dynamic property slide show, designed to provide worldwide reach to a property.
Promote (select) homes to offices within our network, as well as specific Sotheby's Auction House locations.


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If you're responsible for maintaining quality power at a commercial facility and you've got a problem with harmonics, your best bet is to install a series of active filters. Opting for such filters keeps you from getting locked into paying for power factor correction — an unnecessary feature in commercial facilities — like you can when using passive filters. Not only that, you don't have to worry that small active filters will overload, unlike their passive counterparts that tend to absorb harmonic currents. That's because active filters only compensate for the load currents they're monitoring. They ignore harmonics from the rest of the facility.
When you're applying active filters, you should look closely at your harmonic control requirements and size the filter to solve the problem — it's not necessary to correct for every amp of harmonic current that comes from the nonlinear loads. This can result in considerable savings in the filter size required.
You should also consider other factors when sizing your active filters, depending upon the harmonic problem you're trying to combat. Overloaded neutral conductors and adjustable speed drives are two of the most prevalent enemies of quality power, but each can be solved with properly sized active filters.
Excessive neutral currents due to power supply loads
Overloaded neutral conductors are probably the most common harmonic problem encountered in commercial facilities. The problem occurs when electronic power supply loads like PCs create third harmonic currents that add in the neutral, or zero sequence. If the entire load on a circuit consisted of this type of load, the rms neutral current could be as high as 173% of the rms phase current. The problem is aggravated because neutral conductors — especially in older buildings — are often sized for less current than the phase currents.
Refer to the waveform and spectrum in Fig. 1 as the basis for all analysis in this case. This waveform is characteristic of a group of electronic loads. It includes the cancellation effects associated with the multiple loads and is, therefore, a little more realistic than just using the current waveform for a single PC.
First, this waveform can be used to develop a curve for estimating the neutral current (rms value in percent of the phase current rms value) as a function of what portion of the load on the circuit is electronic load. Notice in Fig. 2 that the neutral current is as high as the phase current when the electronic load reaches about 65% of the load on the 3-phase circuit.
Active filters are an effective way to correct harmonic components that cause the neutral current to be high, but how much of the harmonic current from the electronic power supplies need to be cancelled to avoid neutral current problems? It helps to focus on the third harmonic component. However, even with a control that corrects all the harmonics in proportion to their magnitude, you can realize significant savings by sizing the active filter just large enough to prevent problems. Remember, other options for controlling harmonics, such as a passive filter or a zig-zag transformer, will probably only absorb about half the harmonic current from the loads, and these options work fine to prevent neutral current problems. Fig. 3 shows the required rating for the active filter in A/kVA of load for the following two scenarios:
- Compensation for the entire harmonic current in the nonlinear loads.
- Compensation for enough harmonic current so the neutral current is always less than the phase current.
Both curves are given as a function of what portion of the load on the circuit is power supply-type, just like the curve in Fig. 3. Applying the second scenario, we only need an active filter if the electronic load is more than 65% of the load on the circuit. Consider the following example. If you have a 100kVA circuit and the entire load is electronic, you could buy an active filter rated for 170A to cancel all the harmonics from the electronic loads (1.7A/kVA×100kVA). On the other hand, an active filter rated 60A would be sufficient to make sure the neutral current is less than the phase current.
Harmonic distortion caused by adjustable speed drive loads
The other concern common in commercial facilities — as well as many industrial facilities — is the increased harmonic distortion levels created by adjustable speed drives (ASDs). Sometimes large UPS systems can have similar characteristics, but this example will focus on ASDs. Generally, ASDs improve efficiency and result in significant energy savings in HVAC motor applications. However, as these loads become a larger percentage of the total load in facilities, they can result in increased voltage distortion levels. This can be particularly important if these loads have to be supplied by backup generation for some conditions like at a water treatment plant.
Harmonics from AC ASDs are suitable for correction with active filters. These loads have a good displacement power factor and therefore don't need the power factor correction inherently supplied with a passive filter. You can use the waveform and spectrum in Fig. 4 to determine the active filter ratings required for this type of load.
The voltage distortion that results from the ASD harmonic currents is a function of the system impedance and the amount of harmonic current. You can usually prevent problems by making sure the total load for the facility or total load that must be supplied from a backup generator complies with the limits in IEEE 519. For a nonlinear load characteristic like the one in Fig. 4, the most important limit will almost always be the limit for the fifth harmonic. The limit for most realistic short circuit ratios is 8% of the average maximum demand load current. You can use this to determine the penetration level when ASD loads start to be a concern. Fig. 5 shows the total load fifth harmonic current distortion (percentage of total load current) as a function of the amount of ASD load. It shows that you've reached the limit when the ASD load is about 20% of the total load, which isn't a very high penetration level. This illustrates the importance of controlling the harmonics from ASD loads.
So, how do you size the active filter for this type of load? Do you have to provide compensation for the entire harmonic content from the ASDs, or can you just correct for a portion of the harmonic current to avoid problems? Fig. 6 at left shows the difference in the required active filter rating for two different philosophies similar to those used in electronic power supplies:
- Compensation for the entire harmonic content in the ASD load.
- Compensation for enough harmonic current so the total load current complies with the limits in IEEE 519.
Again, you can save money by sizing the active filter to meet the requirements of the harmonic control, rather than compensating for the total harmonic content. In this case, if the entire load comprises ASDs, the required active filter rating to compensate for all of the harmonics is about 0.5A/kVA of load (480V system). In order to meet IEEE 519 requirements, you can reduce this to 0.4A/kVA of load. For a 500kVA load, you would need 200A of compensation, rather than 250A. The difference is even more dramatic when only a portion of the load consists of adjustable speed drives.
Installing a series of active filters will help you take better control of the power quality needs at your commercial facility. To achieve greater savings, however, remember to size your active filters appropriately.
McGranaghan is vice president of Electrotek Concepts, Nashville, Tenn.


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Legend to Legend: ESPN to Commemorate The Rolling Stones' 50th Anniversary on Monday Nights
Sixteen Classic Tracks to be part of ESPN's Monday Night Football Coverage This Fall
The Rolling Stones have announced the November release of GRRR!, a greatest hits collection to mark five decades of the Greatest Rock'n'Roll Band In The World. Now, ESPN will commemorate The Rolling Stones' 50th Anniversary on Monday nights throughout the National Football League season this fall with "Legend to Legend", a unique collaboration with the Universal Music Group that will combine Monday Night Football highlights with classic tracks from the legendary band featuring Mick Jagger, Keith Richards, Charlie Watts and Ronnie Wood.
ESPN is licensing 16 Rolling Stones tracks, spanning the early 1970's release of Exile on Main St. through the mid 2000's A Bigger Bang. The songs will be a mix of popular hits and deep cuts, including "It's Only Rock'n Roll", "Hot Stuff" and "One Hit (To the Body)". Four different songs will be selected per month and will be used for four weeks at a time on ESPN's Monday Night Countdown pregame show (6:30 p.m. ET), on bumpers and teases within the Monday Night Football game (8:30 p.m.), and in a post-MNF game highlight segment on SportsCenter, ESPN's flagship highlights, news and information show.
"Legend to Legend" will debut Monday, Sept. 10 when ESPN kicks off the 43rd season of Monday Night Football with two games at a special time: Cincinnati Bengals vs. Baltimore Ravens (7 p.m.) and San Diego Chargers vs. Oakland Raiders (10:15 p.m.). Countdown begins at 5 p.m. The schedule continues throughout ESPN's 16-week NFL schedule, which concludes on Saturday, Dec. 22.
"Legend to Legend" elements will be identified with a branded logo and high-end animation within Monday Night Countdown and SportsCenter, highlighting "The 50 Years of the Stones" and incorporating the band's signature tongue logo.
"We're very proud that the Rolling Stones chose ESPN's Monday Night Football to play a major role in their 50th Anniversary celebration; sports and music fans alike will enjoy the combination of these two pop culture legends - the most successful prime time sports series in the history of television and the world's greatest rock and roll band to supply music for our season-long soundtrack," said Bob Toms, ESPN vice president of production enhancements, who oversees the ESPN Music department.
ESPN's Monday Night Football
ESPN's Monday Night Football is the most-watched series in cable television history. In six seasons on ESPN, MNF has registered seven of the top 10 all-time biggest household audiences in cable history. For the 2011 season, ESPN's MNF delivered 14 of the 20 biggest household audiences (and 13 of the top 20 among viewers) for cable television in 2011, averaging a 9.7 rating (8.4 US rating) and 9,589,000 homes (13,252,000 viewers). MNF is the longest-running sports series in U.S. television history, dating back to its first season on ABC in 1970.
ESPN is available in approximately 100 million homes in the United States, This season, ESPN's coverage of the NFL - including Monday Night Football - will also be available to more than 73 million homes in 161 countries/territories in Latin America, Brazil, the Caribbean, Africa, Middle East, Israel, Europe, Canada, and Australia/New Zealand/Pacific Islands.
The Rolling Stones
The Rolling Stones, ABKCO Music & Records and Universal Music Group will release GRRR! by The Rolling Stones on the 12th of November 2012 for the World Excluding North America and on the 13th of November 2012 in North America. Available in various different formats - including a three-CD 50 track version featuring 50 tracks, and a four-CD Super-Deluxe version gathering a whopping 80 tracks - the collection tells the fascinating ongoing story of the Greatest Rock'n'Roll Band In The World, from their high octane version of Chuck Berry's Come On, their first single issued in June 1963, via the thrilling chart-toppers The Last Time, (I Can't Get No) Satisfaction, Get Off Of My Cloud, Jumping Jack Flash and Honky Tonk Women and the perennial juke-box and concert favorites Brown Sugar, Tumbling Dice, Miss You and Start Me Up, all the way to the present day with the inclusion of Gloom And Doom and One Last Shot, two new studio recordings recently completed by the group in Paris, France. These brand new recordings constitute the first time Mick Jagger, Keith Richards, Charlie Watts and Ronnie Wood have all been together in the studio since completing the exalted A Bigger Bang album in 2005, and follow on from the critically-acclaimed expanded re-releases of the historic 40th Anniversary live Madison Square Garden concert "Get Yer Ya-Ya's Out!" in November 2009 and of two of their seventies masterworks, Exile on Main St., in May 2010, and Some Girls, in November 2011. More information, visit: www.rollingstones.com.


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Wrongful Death Claim
A wrongful death claim is a suit, brought by the remaining relatives and/or loved ones of someone who was killed as an outcome of somebody else's thoughtless (negligent) conduct or an intentional action. This suit is generally brought against the individual, entity or persons considered to cause the departure. Essential to the claim is evidence that those filing the claim have been damaged as an effect of the departure. Financial damages range from medical and funeral expenses to loss of future income and advantages and are an essential part of these suits. The particular kinds of damages which are generally sought are covered in Damages Awarded in a Litigation by a wrongful death attorney.
Wrongful death claims didn't exist before wrongful death laws were passed in each state. These claims weren't permitted under common law, the legal principles that was passed down from England to the United State over many centuries. Against the casualties of the neglect, neglect claims expired under common law, and so survivors didn't possess the right to recover for the losses they suffered as a consequence of the passing of their loved one. Now, obviously, all states have wrongful death statutes, and there are a few common components at their center, even though they aren't drafted. Survivors must usually demonstrate when filing a wrongful death claim:
- The individual(s) being sued caused the departure (wholly or in part) of the sufferer.
- The individual(s) being sued were either negligent when they caused the departure, or are in charge of the departure as a matter of law (strict liability).
- Dependents, the victim's partner or beneficiaries are not dead.
- Financial losses, damages for which is being sought have been caused by the casualty's departure.
- This section of our Injury Law website will not cover the wrongful death laws for every state and each.
We cover the general principles behind wrongful death claims. State laws differ as to who may be sued and who may bring a wrongful death suit. For important information about these two issues, see Who Can Bring a Wrongful Death Litigation? Contact an attorney who specializes in wrongful death cases locally, someone who has unique knowledge about the laws in your own state, in the event that you think you are in possession of a valid claim.
Read more: http://accident-law.freeadvice.com/accident-law/wrongful_death/wrongful_death.htm#ixzz3sofonzcY


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Present Perfect Simple or Continuous
Often there is very little difference between the present perfect simple and the present perfect continuous. In many cases, both are equally acceptable.
To emphasize the action, we use the continuous form.
To emphasize the result of the action, we use the simple form.
Look at the difference in these examples.
When an action is finished and you can see the results, use the continuous form.
When you use the words 'ever' or 'never', use the simple form.


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Gooring Jimbila Contracting
Contact Details
Po Box 5
Kununurra WA 6743
+61 8 9169 3504
+61 4 9781 9483
View Capability Statement
Company Profile
Gooring Jimbila Contracting (GJC) is a Civil and Infrastructure Maintenance contractor. GJC is 100% owned by the Traditional Owners under the Argyle Diamond Indigenous Land Use Agreement under the Gelganyem Banner. GJC are committed to deliver superior civil engineering, construction and maintenance services. Operating since 2010, with a combined management experience of over 50 years, we are led by a strong management team and project managers who are experts in their fields. Our Management are supported by a team of dedicated staff who deliver results safely, on time and in budget. We work together to ensure success for all stakeholders with a commitment to deliver projects with quality time and budget constraints and most importantly strive to forfill the zero harm safety culture.
Products and Services
Project Management of Projects
Contract Labour / Labour Hire
Tailing Dam Construction and Management
Heavy and Light equipment operation
Airside and Non-airside airport civil works
Utility Installation
Large diameter pipeline installation
Road construction
Earthworks and drainage
Water and sewage infrastructure installation
Vegetation clearing
Tailings dredging and dewatering
Heavy and Light equipment management
Landscaping and drainage
Waste Management
Fauna and flora management
Contaminated land management
Cultural heritage site management
Land management
Acid sulphate soil management
Erosion and sediment control
Management of environmentally sensitive sites
Water and sewage infrastructure installation


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An 1886 lawsuit filed by the state of Texas against famed rancher Charles Goodnight might have been forgotten history if it did not win state archivists' attention last summer.
The yellowed, incomplete file from Donley County is an example of the state's rich heritage that a group of lawyers, judges and others hope to preserve before the documents waste away.
Since 2009, the Texas Court Records Preservation Task Force has scoured more than 500 storage facilities across the state for historic courthouse documents that record the lives of the earliest Texans.
The Goodnight lawsuit, which will be preserved at the state's cost, is one of 21 documents the task force has identified as the most important historical documents in Texas.
In the late 1880s, the expansive open ranges of West Texas were ground zero for a burgeoning fight about ranchers using barbed wire for the first time to fence their land. Goodnight had become one of the largest purchasers of barbed wire, and state attorneys asked a Donley County judge to halt Goodnight's efforts because he fenced in state-owned land.
Goodnight won at trial, but the case sparked "many years of additional battles between large Panhandle ranches and the state of Texas over the fencing of Texas ranges," the task force said.
The all-volunteer task force, created by the Texas Supreme Court, considers a historical court record as a document dating before 1951, according to the Texas State Library and Archive Commission's preservation standards.
In surveys the task force distributed to every county and district clerk in Texas, workers in Panhandle counties stressed many of the same concerns: lack of funding, disaster preparedness and recovery, and the need for additional staff.
But storage methods varied between Panhandle counties, according to the surveys.
Donley County District Clerk Fay Vargas needed more room to store courthouse records, so a few years ago she asked county commissioners to buy a tractor-trailer outfitted with electricity and shelves for file storage.
Gray County Clerk Susan Winborne and former Hutchinson County District Clerk Joan Carder reported the counties had no current preservation efforts, the surveys said.
"Adequate funding is our main deterrent. Training and more personnel is also a need," Carder wrote. "The cost of an additional employee might be $25,000 to $30,000 annually."
In Potter County, Sandra Hanna's office is the command center for the county's recordkeeping.
Hanna, the county's records manager, favors microfilming over any other alternatives, and her expenses bear that out. Her office requested $439,157 in the 2011-12 budget and received just more than $400,000, she said.
Her staff includes three employees who film documents, two quality checkers and one person who processes the film in a darkroom, Hanna said.
But every year, Hanna budgets enough money to attend a records management conference that attracts an international audience, which helps her stay aware of the latest preservation methods, she said.
"Some of these smaller counties, there is just not enough revenue coming in for that," she said. "These are the people who write the books on records management, so if you can't go to that, you wouldn't know about it."
The county's most historically significant finds over the years include documentation of the first black man to sit on a Potter County grand jury, Matthew "Bones" Hooks, and the county's first district court case, in which county judge and mayor Lon D. Marrs fatally shot a constable, Hanna said.
Hanna said microfilm processing, if counties can afford it, is the best insurance policy for aging documents, since electronic records are stored on a hard drive that can easily be wiped out.
Hanna's office microfilms the documents, which are stored in the basement of the Potter County District Courts building, and uses an elaborate bar code system that for at least 10 years has allowed the office to track the movement of all files.
Hutchinson County clerk Robin Stroud, who was elected in January 2011, said her office's preservation efforts work well for the central Panhandle county.
The courthouse's storage facility includes records stretching back to 1904, when one district court served the county's criminal, civil and family law cases.
Stroud, who began as a part time employee in 1989, said one of the rooms, which includes county tax and case records, used to be a courtroom gallery for the public before it was remodeled into the storage room.
"It's tight, but it's not like we're working up here," Stroud said.