La Verne Koenig v. State of North Dakota
2014 U.S. App. LEXIS 11517
| 8th Cir. | 2014Background
- Koenig convicted in North Dakota of a misdemeanor (livestock running at large); sentenced to 30 days (suspended) and probation, plus restitution.
- Throughout trial he repeatedly discharged and rejected appointed counsel and made last-minute motions; the trial court found his conduct "the functional equivalent of a voluntary waiver" of further public defender representation at the trial-court level.
- Koenig filed a timely notice of appeal and moved the North Dakota Supreme Court for appointment of appellate counsel; the court denied the motion as a matter of practice (it does not appoint counsel) and directed requests for counsel to the trial court.
- Koenig then filed a motion in the trial court requesting appointment of appellate counsel; the trial court did not appoint counsel or explicitly rule that Koenig waived appellate counsel.
- Koenig proceeded pro se on direct appeal; after the state supreme court denied relief, he sought federal habeas under 28 U.S.C. § 2254, arguing denial of his Sixth Amendment right to appellate counsel.
- The Eighth Circuit majority held the state courts had not found a valid waiver of appellate counsel and therefore Koenig was improperly denied appointed counsel on appeal; it reversed and remanded for an out-of-time appeal with counsel or vacatur if none granted within 120 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Koenig was denied Sixth Amendment right to appointed appellate counsel | Koenig: trial court's waiver finding was limited to trial counsel; no valid waiver of appellate counsel; he informed courts of indigency and desire to appeal | State: Koenig's obstructive conduct and prior waiver of trial counsel amounted to waiver/forfeiture of appellate counsel; failure to renew request in trial court constitutes waiver | Held for Koenig: trial-court waiver was limited to trial counsel; no record showing knowing waiver of appellate counsel; state courts violated Douglas; remanded for out-of-time appeal with counsel or vacatur if none granted within 120 days |
| Whether waiver of appellate counsel can be inferred from failure to request counsel after state supreme court denial | Koenig: Carnley/Swenson bars inferring waiver from silence when indigency and desire to appeal are known | State: Koenig's posturing and failure to secure counsel indicate he did not want appointed counsel | Held for Koenig: cannot infer waiver from failure to renew; trial court was aware of indigency and did not rule; appointment was constitutionally required |
| Whether AEDPA precludes relief because state decision was reasonable | State: North Dakota Supreme Court could have inferred waiver/forfeiture based on obstructive conduct; deferential AEDPA review supports denial | Koenig: absence of state-court finding re appellate waiver means federal court can grant relief | Held for Koenig: record lacks evidence of appellate-waiver finding; state courts acted contrary to established Supreme Court precedent on appointment of appellate counsel |
| Remedy on habeas when appellate counsel denied | Koenig: entitlement to out-of-time appeal with counsel or vacatur if not provided | State: deference to state procedures and prior proceedings | Held: Remand to district court, stay up to 120 days for State to allow out-of-time appeal with counsel; if not granted, district court to vacate conviction |
Key Cases Cited
- Douglas v. California, 372 U.S. 353 (1963) (indigent defendant entitled to appointed counsel on first-tier appeal as of right)
- Gideon v. Wainwright, 372 U.S. 335 (1963) (right to appointed counsel in state criminal prosecutions)
- Johnson v. Zerbst, 304 U.S. 458 (1938) (waiver of Sixth Amendment right to counsel must be voluntary and intelligent)
- Carnley v. Cochran, 369 U.S. 506 (1962) (right to counsel where constitutional requisite does not depend on express request)
- Swenson v. Bosler, 386 U.S. 258 (1967) (cannot infer waiver of appellate counsel from failure to specifically request appointment when indigency and desire to appeal are manifest)
- Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973) (per curiam) (where state knew of indigency and desire to appeal, habeas relief may obtain when counsel not provided)