La Verne KOENIG, Petitioner-Appellant v. State of NORTH DAKOTA, Respondent-Appellee.
No. 12-2260.
United States Court of Appeals, Eighth Circuit.
Submitted: March 13, 2013. Filed: June 19, 2014.
Rehearing and Rehearing En Banc Denied Sept. 5, 2014.
756 F.3d 636
Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
Ken R. Sorenson, AAG, argued, Bismarck, ND, for Appellee.
WOLLMAN, Circuit Judge.
La Verne Koenig was convicted in a North Dakota state court of a class B misdemeanor. He appeals from the district court‘s denial of his petition for habeas corpus relief under
Koenig was charged under
Thereafter, Koenig filed two motions, one for a new trial based primarily upon claims that his appointed counsel had provided ineffective assistance at trial and the other requesting the appointment of new counsel. In the motion for new counsel, Koenig requested that his current court appоinted attorney be removed and new counsel appointed “to assist in the amending and presentation, of this MOTION FOR NEW TRIAL.” Koenig‘s second appointed counsel also filed a motion to withdraw. Following a hearing on these motions, the state trial court made a number of factual findings regarding Koenig‘s behavior throughout the trial proceedings, which culminated in the following:
My next finding is that through your manipulative conduct, you, Mr. Koenig, have forfeited any further or continued right to a public defender.
Finally, I explicitly find that your conduct is the functional equivalent of a voluntary waiver of your right to counsel, and I further find that that waiver has been knowingly and intelligently made.
So not only have I granted [appointed counsel‘s] motion to withdraw, I am denying your request for a further public defender. You do have the right to hire a lawyer at your own expense; but, at this point, at least at the trial court level, that‘s the only option left open to you.
Appellee‘s App. 35. Koenig‘s motion for a new trial was also denied.
A restitution hearing was later held to determine the damages Koenig‘s neighbors had suffered as a result of his horses running at large. At the conclusion of the restitution hearing, the state trial court informed Koenig that once restitution was resolved a final judgment would be entered, which would mark the beginning of his thirty-day period to file an appeal with the North Dakota Supreme Court. The state trial court then stated, “Whether or not you would be entitled to a lawyer on appeal is an issue that you would have to take up with the clerk of the Supreme Court.” On November 13, 2009, the trial court entered findings of fact, conclusions of law, and order for judgment, which found that Koenig owed $5,400 in restitution. The order of judgment amended Koenig‘s earlier sentence by extending his unsupervised probation to three years from the entry of the amended judgment, or until payment in full of the restitution obligation, whichever occurred first.
Koenig filed a notice of appeal with the North Dakota Supreme Court on December 11, 2009. Koenig also filed a motion with the North Dakota Supreme Court
On April 19, 2010, the day before Koenig‘s direct appeal was to be heard by the North Dakota Supreme Court, Koenig filed in the United States District Court for the District of North Dakota (district court) a petition for a writ of habeas corpus under
The [state trial] court refuses to appoint legal counsel, even though Petitioner has been found indigent, Petitioner thereafter moved the State Supreme Court, for the appointment of appellate counsel, which they denied, stating they do not appoint appellate counsel. Petitioner has thus been forced to defend in pro se capacity.
Mot. for Emergency Stay 1. Koenig requested an order staying the рroceedings before the North Dakota Supreme Court until a determination regarding his right to legal counsel for his direct appeal was made by the district court. Id. at 4. Because of the late nature of the filing, the district court was unable to rule upon the motion for an emergency stay until after oral argument on Koenig‘s direct appeal was heard. The district court thus denied the motion as moot. See D. Ct. Order of May 14, 2010, at 1-2. Moreover, the district court concluded that because the North Dakota Supreme Court had not issued a decision on Koenig‘s direct appeal, the claims in his habeas corpus petition had not been fully exhausted. Accordingly, the district court dismissed the petition without prejudice. Id.
Unbeknownst to the district court, the North Dakota Supreme Court had issued a
Koenig applied for a certificate of appealability with this court. A panel of this court granted Koenig in forma pauperis status on aрpeal and found that reasonable jurists would find debatable the district court‘s rejection of the following claims in the absence of the relevant state court records: (1) that Koenig was denied appointment of appellate counsel; (2) that counsel was ineffective for failing to raise the defense that Koenig maintained a ditch as a lawful fence and for failing to challenge the testimony that undermined that defense; (3) that the statute defining a lawful fence was unconstitutionally vague as applied to Koenig due to the conflicting testimony concerning the stаndards for a lawful fence, including when a ditch amounted to a lawful fence; and (4) that the evidence was insufficient to show that Koenig acted willfully and that he did not maintain a lawful fence. The panel denied a certificate of appealability on the remaining claims. Koenig‘s petition was remanded to the district court for consideration of those four claims once the state of North Dakota (State) had responded to the petition and produced the relevant portions of the state record.
The State‘s response included a motion to dismiss the рetition. After the motion was fully briefed, the district court conducted a thorough review of the state court record and granted the State‘s motion to dismiss the petition, holding that Koenig was not entitled to the relief he sought under
II. Discussion
“In reviewing a district court‘s denial of habeas relief, we review its findings of fact for clear error and its conclusions of law de novo.” Flowers v. Norris, 585 F.3d 413, 416 (8th Cir. 2009). Like the district court, we review the underlying decision of the North Dakota Supreme Court under
Under North Dakota law, Koenig was entitled to appeal his misdemeanor conviction as a matter of right. See
[T]his Court concurs that the state district court‘s factual findings compelled the legal conclusion that Koenig‘s conduct constituted a valid waiver of his right to appellate counsel. Koenig‘s abuse of the judicial process and his refusal to cooperate with either of his court-aрpointed attorneys were both manifestations of his desire to try his case strictly on his own terms. In light of this rogue approach to defending his case, Koenig‘s constitutional right to counsel was not infringed because the further appointment of appellate counsel would have been fruitless and against Koenig‘s wishes as evidenced by his conduct. The denial of appellate counsel did not infringe upon Koenig‘s constitutional rights.
Koenig does not dispute that the state trial court determined that he had through his conduct waived his right to appointed counsel at the trial court lеvel. He contends, however, that the record reflects that the state trial court‘s waiver determination was limited to the issue of the right to trial counsel only and that no determination regarding his right to appellate counsel was ever made. It is well settled “that courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.” Zerbst, 304 U.S. at 464 (internal quotation marks and footnote omitted). “While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Id. at 465.
As recounted earlier, the state trial court determined that Koenig had made a knowing and intelligent waiver of his right to appointed trial counsel. The state trial
Moreover, the hearing during which the state trial court made its waiver determination was one addressing Koenig‘s motion for the appointment of new counsel to assist him with filing a trial-level motion. See Appellee‘s App. 17-18 (requesting the appointment of counsel to assist “in the amending and presentation, of this [motion for new trial]“). Thus, the state trial court‘s finding of waiver related solely to Koenig‘s request for appointed counsel to aid in trial court proceedings, there having been no request before it at that time for the appointment of appellate counsel.
This reading of the record finds further support in the state trial court‘s subsequent discussion of Koenig‘s right to appeal his conviction, during which it stated:
If you intend to appeal any aspеct of this case to the North Dakota Supreme Court, you must file a timely notice with the clerk. And again, the time limit is thirty days following entry of judgment. Whether or not you would be entitled to a lawyer on appeal is an issue that you would have to take up with the clerk of the Supreme Court.
Appellant‘s Pro Se App. 28 (quoting Restitution Hr‘g 66:5-11, Oct. 21, 2009). Again, had the state trial court‘s waiver determination been one intended to address a request for both trial counsel and appellate counsel, the state trial court would not have erroneously directed Koenig to raise his request for the apрointment of appellate counsel with the clerk of the North Dakota Supreme Court. Thus, the state trial court record will not admit of a finding that Koenig had knowingly and voluntarily waived his right to the appointment of appellate counsel.
Because the state trial court‘s waiver determination was limited to Koenig‘s right to trial counsel, Koenig is entitled to habeas relief unless the record contains some other manifestation that he knowingly and intelligently waived his right to appellate counsel. The State contends that Koenig‘s failure to request the appointment of аppellate counsel in the state trial court after a similar motion was denied by the North Dakota Supreme Court constitutes such a waiver. We conclude, however, that Koenig‘s January 14, 2010, motion to the state trial court constituted a renewal of his earlier request for appellate counsel and cannot be read as a waiver of such counsel. As the Supreme Court has made clear, “where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, 369 U.S. 506, 513 (1962). Likewise, waiver of the right to appеllate counsel cannot be inferred simply from the defendant‘s failure to request appellate counsel. Swenson v. Bosler, 386 U.S. 258, 260 (1967) (per curiam):
When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant‘s failure specifically to re
quest appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.
In Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973) (per curiam), the Fifth Circuit relied upon Swenson to grant habeas relief to a similar petitioner, albeit one who had been convicted of murder rather than of a minor misdemeanor. The Fifth Circuit concluded that “the state, through its officials, knew of Harris‘s indigency and thus had a duty to ascertain whether Harris had counsel for his appeal; if not, to advise him of his right thereto; and to appoint counsel for him if he so desired.” Id. at 58. Relying on Swenson, the court held that because the record “fully and unequivocally showed that Harris‘s indigence and his desire to appeal were made known to a state official, namely, the trial judge, . . . he [was] entitled to an out of time appeal with counsel.” Id.
The record is clear that the statе trial court was aware of Koenig‘s indigency as well as of his desire to appeal. Its failure to respond in any manner to Koenig‘s January 14, 2010, motion forecloses any claim that it at that time found that Koenig had waived his right to appellate counsel. Moreover, there is nothing in the North Dakota Supreme Court‘s unpublished opinion indicating that it found that Koenig had knowingly and voluntarily waived his right to appellate counsel. In the absence of such record evidence, we conclude that the North Dakota state courts acted contrary to the dictates of firmly estаblished Supreme Court precedent by failing to provide Koenig with appellate counsel.
Accordingly, we hold that Koenig is entitled to relief on his habeas petition, and thus we remand the case to the district court with directions that it be held in abeyance for not longer than 120 days from the date of issuance of our mandate. If within that time the State grants Koenig leave to take an out-of-time appeal with the assistance of counsel, the district court shall dismiss Koenig‘s petition. If such an appeal is not granted within that period, the district court shall enter judgment vacating Koenig‘s conviction. In light of our holding, we need not rule on the remaining claims raised in Koenig‘s petition. See Harris, 487 F.2d at 57.
III. Conclusion
We reverse the judgment dismissing the petition and remand the case to the district court for further proceedings consistent with this opinion.
COLLOTON, Circuit Judge, dissenting.
In my view, the decision of the North Dakota Supreme Court rejecting La Verne Koenig‘s claim that he was denied a constitutional right to counsel on direct appeal was not “contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
As the court recounts, during trial proceedings in North Dakota state court, Koenig “engaged in what can only be described as several last-minute dilatory tactics that delayed and complicated this matter.” Ante, at 637. The state trial court found that “[f]rom the outset, the defendant‘s conduct has shown a consistent pattern which can only be characterized as an intentional effort to obstruct the legal process.” Appellant‘s App. 117. Koenig “repeatedly demanded and then rejected court-appointed counsel, which is simply
On direct appeal, Koenig moved for appointment of counsel in the state supreme court, but that court responded that it “does not appoint legal counsel,” and denied the motion. Koenig then moved the state trial court to take judicial notice of the supreme court‘s ruling on appointment of counsel. (This was not reаlly “a renewal of his earlier request for appellate counsel,” ante, at 641, because Koenig did not formally move for appointment of appellate counsel in the state trial court, either before or after the state supreme court‘s order.) The trial court took no action to appoint appellate counsel for Koenig.
In his direct appeal, Koenig then argued that he was denied his constitutional right to counsel on appeal, but the North Dakota Supreme Court affirmed his conviction and sentence in a brief per curiam opinion. State v. Koenig, 789 N.W.2d 731, 2010 WL 1875694 (N.D. 2010) (per curiam) (unpublished table decision). There is no indication that the state court inadvertently overlooked Koenig‘s constitutional claim: to the contrary, the court‘s opinion expressly acknowledged Koenig‘s argument that he was “improperly denied legal counsel . . . on direct appeal.” Id. at *1. Koenig‘s claim alleging denial of a constitutional right to appellate counsel was thus adjudicated on the merits by the state courts. See Johnson v. Williams, 568 U.S. 289 (2013); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784-85 (2011).
Under
A federal court may grant relief on the ground that the North Dakota court‘s decision was “contrary to . . . clearly established Federal law” only if “the state court
To prevail under the “unreasonable application” prong of
The Supreme Court has not addressed when a criminаl defendant‘s manipulative and obstructive conduct during trial and post-trial proceedings amounts to a forfeiture or waiver of the right to counsel. But the Court has ruled in the context of the right to be present for trial that a defendant can lose important constitutional rights if, after he has been warned by the court about the potential consequences of disruptive behavior, he nevertheless persists. Illinois v. Allen, 397 U.S. 337, 343 (1970). State courts and inferior federal courts have recognized that a defendant who has been warned may knowingly, voluntarily, and intelligently waive the right to counsel by continuing obstruсtive conduct, e.g., United States v. Goldberg, 67 F.3d 1092, 1100-01 (3d Cir. 1995); State v. Carruthers, 35 S.W.3d 516, 548-50 (Tenn. 2000), and that extreme conduct may result in a forfeiture of the right to counsel even without advance warning. E.g., United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir. 1995); State v. Jones, 772 N.W.2d 496, 504-06 (Minn. 2009); Commonwealth v. Means, 454 Mass. 81, 907 N.E.2d 646, 658 (2009); Brickert v. State, 673 N.E.2d 493, 496 (Ind. App. 1996). According to these authorities, a defendant may forfeit or waive the right to counsel in the trial court, e.g., Jones, 772 N.W.2d at 506, or on appeal, United States v. Thompson, 335 F.3d 782, 785 (8th Cir. 2003). “[T]he forfeiture of counsel at [a nontrial phase of proceedings] does not deal as serious a blow to a defendant as would the forfeiture of counsel at the trial itself.” Means, 907 N.E.2d at 659 (alterations in original) (internal quotation marks omitted).
There is a paucity of authority concerning whether a defendant‘s obstructive conduct in the trial court, during both trial and post-trial proceedings, can result in a forfeiture or waiver of the right to counsel on appeal. There is no obvious reason why it cannot do so in an appropriate case. The Supreme Court has never addressed the matter. The state courts thus have a good deal of leeway in reaching reasonable conclusions concerning the degree of obstructive conduct that could result in the
Koenig was warned by the state trial court that manipulative conduct could result in the waiver of his right to an attorney. The North Dakota Supreme Court reasonably could have concluded that Koenig—by continuing his intentional efforts to obstruct the legal process, including by his repeаtedly demanding and then rejecting court-appointed counsel—forfeited or knowingly and voluntarily waived his right to have the assistance of new court-appointed counsel on direct appeal.
Under the standards of