United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2260

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La Verne Koenig

lllllllllllllllllllllPetitioner - Appellant

v.

State of North Dakota

lllllllllllllllllllllRespondent - Appellee

____________

 Appeal from United States District Court 

for the District of North Dakota - Fargo

____________

 Submitted: March 13, 2013

 Filed: June 19, 2014

___________

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

__________

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 28 U.S.C. § 2254. Because we conclude that Koenig was

improperly denied his Sixth Amendment right to appellate counsel, we reverse and

remand with directions.
I. Background

Koenig was charged under N.D. Cent. Code § 36-11-01 with the misdemeanor

offense oflivestock running at large after three of his horses were discovered roaming

freely in his neighbors’ fields. During the trial proceedings in the state district court

(state trial court), Koenig engaged in what can only be described as several lastminute dilatory tactics that delayed and complicated this matter, including

discharging his court appointed attorney less than two weeks before trial and then

waiting until the morning of trial to request that new counsel be appointed and that

a continuance be granted. After being appointed new counsel, Koenig again waited

until the morning of trial before making a pro se motion to disqualify the judge and

to request another continuance of the trial. That motion was denied, and Koenig was

found guilty following a jury trial. The state trial court sentenced Koenig to thirty

days in the Traill County Jail, but suspended the sentence and placed Koenig on one

year of unsupervised probation.

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 appointed 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.

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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

wasresolved 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 requesting the appointment of appellate counsel. On December 29, 2009, the

North Dakota Supreme Court entered an order stating, “[I]nasmuch asthis court does

not appoint legal counsel, the motion for counsel is DENIED.” The docket entry

accompanying this order indicated that requests for counsel are to be made with the

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trial court. Following the receipt of the Supreme Court’s order, Koenig filed a

1

motion with the state trial court on January 14, 2010, requesting, among other things, 

that the court “take Judicial Notice of the State Supreme Courts [sic] Order, Denying

Defendants [sic] Motion for the Supreme Court to appoint legal counsel to assist in

appealing this criminal conviction. Wherein the State Supreme Court clearly stated

that they do not appoint appellate counsel.” Appellant’s App. 119-20. The motion

stated further, “Defendant further advises this Court that his financial situation has

not improved since the filing of his Motion for Counsel on August 10, 2009.” Id. 

The record does not contain a ruling by the state trial court regarding this motion, but

it is undisputed that appellate counsel was not appointed. Thereafter, Koenig

proceeded to brief and argue his direct appeal pro se. He included among the other

specifications of constitutional error set forth in his brief his claim that he had been

denied his constitutional right to appointed counsel on appeal, citing Douglas v.

California, 372 U.S. 353 (1963).

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 28 U.S.C. § 2254 and a motion for an emergency stay of the pending oral

argument on his direct appeal. Koenig’s petition identified as alleged errors in his

state court conviction the same eleven errors that Koenig had raised in his appellate

brief before the North Dakota Supreme Court. As grounds for his request for an

emergency stay, Koenig alleged that he was entitled to the assistance of legal counsel

on his direct appeal as a matter of right under statute and Supreme Court precedent. 

He alleged further that:

In response to our request, Koenig’s counsel in this proceeding conducted 1

an investigation and reported that there is no record that the December 28, 2009,

motion was ever refiled with the state trial court.

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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 proceedings

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 summary denial of Koenig’s appeal on May 11, 2010, in which it affirmed his

conviction and rejected all eleven claimed errors. See State v. Koenig, 789 N.W.2d

731 (N.D. 2010) (table decision). Koenig filed a motion for reconsideration with the

2

district court, asking that it reconsider its conclusion that he had failed to exhaust his

administrative remedies. The district court granted the motion, stating: “Having now

exhausted his state court remedies, the Court hereby grants Koenig’s motion to alter

and amend its previous Order.” D. Ct. Order ofJuly 22, 2010, at 1. The district court

then addressed the merits of the petition and concluded that none of Koenig’s claims

demonstrated an unreasonable application of clearly established federal law or a clear

error in any factual findings. The district court dismissed his petition with prejudice

and denied a certificate of appealability. Id. at 6-7. 

Koenig’s petition for writ of certiorari fromthat decision was denied later that 2

year. Koenig v. North Dakota, 131 S. Ct. 664 (2010).

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Koenig applied for a certificate of appealability with this court. A panel of this

court granted Koenig in forma pauperis status on appeal 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 standards 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 petition. 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 § 2254. See D. Ct. Order of

April 25, 2012, at 21. The district court granted Koenig a certificate of appealability

on the four earlier-remanded claims, and this appeal followed. 

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 28 U.S.C. § 2254, as amended by

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the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id. Under

AEDPA, an application for a writ of habeas corpus may only be granted if the

adjudication of the underlying state court action resulted in a decision “that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States” or one “that was based

on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). 

Koenig first contends that the district court erred by denying him habeas relief

on his claim that he was denied his Sixth Amendment right to appellate counsel on

his direct appeal. The Sixth Amendment states that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. Const. amend. VI. The Supreme Court has interpreted this right to

counsel asrequiring that indigent defendants be provided counsel unlessthe right has

been voluntarily and intelligently waived. See Johnson v. Zerbst, 304 U.S. 458, 464

(1938); United States ex rel. Miner v. Erickson, 428 F.2d 623, 626 (8th Cir. 1970)

(“The right to counsel may be waived, of course, if the waiver is made voluntarily and

intelligently by a competent mind.” (internal quotation marks omitted)). In Gideon

v. Wainwright, 372 U.S. 335 (1963), the Court extended to state court prosecutions

the right to state-appointed counsel established in Zerbst. And in Douglas, 372 U.S.

at 357-58, the Court held that the right to counsel includes the right to appellate

counsel for an appeal of a conviction taken as a matter of right. 

Under North Dakota law, Koenig was entitled to appeal his misdemeanor

conviction as a matter of right. See N.D. Cent. Code § 29-28-03. Thus, in its order

denying habeas relief on this claim, the district court recognized that “[u]nless there

was a valid waiver of the right to counsel, this denial of appellate counsel would

violate Koenig’s state and federal constitutional rights.” D. Ct. Order of Apr. 25,

2012, at 7. After recounting the litany of difficulties that Koenig had presented to his

trial counsel and to the state court system that had led to the state trial court’s finding

of a voluntary waiver of counsel, the district court concluded:

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[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-appointed

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 level. 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 constitutionalrights 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

court outlined in detail the conduct that it found to constitute “the functional

equivalent of a voluntary waiver of [Koenig’s] right to counsel[.]” See Appellee’s

App. 28-35 (quoting Mot. for New Counsel Hr’g 16:10-11, Sept. 23, 2009). But

immediately following this finding, the state trial court limited its determination by

stating, “You do have the right to hire a lawyer at your own expense; but, at this

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point, at least at the trial court level, that’s the only option left open to you.” Id. at

35. Had the state trial court determined that Koenig had waived not only his right to

appointed trial counsel but also his right to appointed appellate counsel, the

qualifying statement “at least at the trial court level” would have been superfluous. 

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 aspect of this case to the North Dakota

Supreme Court, you must file a timely notice with the clerk. And again,

the time limit isthirty 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 requestfor the appointment 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. 

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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 appellate 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 constitutionalrequisite, 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 appellate 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, itsimply cannot

be inferred from defendant’s failure specifically to request appointment

of appellate counsel that he has knowingly and intelligently waived his

right to the appointment of appellate counsel.

Id.

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

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official, namely, the trial judge, . . . he [was] entitled to an out of time appeal with

counsel.” Id. 

The record is clear that the state 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 itfound 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 established 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 claimthat he was denied a constitutional right to counsel on direct

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appeal was not “contrary to, or . . . an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). Koenig’s other claims are also without merit. I would therefore affirm

the order of the district court denying habeas corpus relief.

As the court recounts, during trial proceedings in North Dakota state court,

Koenig “engaged in what can only be described asseveral last-minute dilatory tactics

that delayed and complicated this matter.” Ante, at 2. 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 courtappointed counsel, which is simply one specific means that he has utilized as a form

of obstructing the legal process.” Id. After one such incident, Koenig was warned

by a trial judge that “[s]ometimes conduct does constitute a waiver, and I’m very

close to finding that your conduct has been manipulative and it is a waiver of your

right to an attorney.” Id. at 115. Despite Koenig’s tactics, the trial court granted him

another court-appointed counsel for trial, but during post-trial proceedings, the court

reached its limit. When considering Koenig’s motion for new trial and his motion to

dismiss his trial counsel, the state trial court ruled that Koenig—by his “manipulative

conduct”—forfeited, and knowingly and intelligently waived, his right to receive

further assistance from a public defender in the trial court. Id. at 118. 

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 really “a

renewal of his earlier request for appellate counsel,” ante, at 10, 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.

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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 wasthus adjudicated on the merits by the state courts. See Johnson

v. Williams, 133 S. Ct. 1088, 1094-96 (2013); Harrington v. Richter, 131 S. Ct. 770,

784-85 (2011).

Under § 2254(d), where a state court’s rejection of a claim is unexplained, a

federal habeas court must determine “what arguments or theories . . . could have

supported . . . the state court’s decision.” Richter, 131 S. Ct. at 786; see Williams v.

Roper, 695 F.3d 825, 834 (8th Cir. 2012), cert. denied, 134 S. Ct. 85 (2013). Here,

the North Dakota Supreme Court could have concluded that Koenig, by his

intentional efforts to obstruct the legal process, forfeited or waived his right to the

further assistance of court-appointed counsel, both during post-trial proceedings in

the trial court and on appeal. The question under § 2254(d) is whether that

conclusion is contrary to, or an unreasonable application of, clearly established

federal law. In light of Richter and Premo v. Moore, 131 S. Ct. 733 (2011), it is

incorrect for this court to grant habeas relief on the ground that the state courts did

not articulate a rationale for rejecting Koenig’s claim. Cf. ante, at 11 (“[T]here 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.”).

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

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the Supreme] Court has on

a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13

(2000). The North Dakota courts did not dispute that an indigent appellant has a

constitutional right to counsel on direct appeal in light of Douglas v. California, 372

U.S. 353 (1963). This case is about whether Koenig forfeited or waived his right to

appellate counsel on a particular set of facts. Neither Koenig nor the court identifies

any decision of the Supreme Court concerning a set of materially indistinguishable

facts, so the state court’s decision is not “contrary to” clearly established federal law,

as determined by the Supreme Court.

To prevail under the “unreasonable application” prong of § 2254(d), a

petitioner must show not only that the state court’s decision was incorrect, but that

it was unreasonable. Williams, 529 U.S. at 410. “[S]o long as fairminded jurists

could disagree on the correctness of the state court’s decision,” the statute precludes

federal habeas relief. Richter, 131 S. Ct. at 786 (internal quotation omitted). Koenig

must show that “there was no reasonable basis for the state court to deny relief.” Id.

at 784. The more general the legal rule at issue, “the more leeway courts have in

reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541

U.S. 652, 664 (2004).

The Supreme Court has not addressed when a criminal 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 obstructive 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

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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, 907 N.E.2d 646, 658 (Mass. 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 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 loss

of the right to appellate counsel and the type of warnings, if any, that might be

required before a court refuses to appoint new counsel on appeal. Cf. Hern v.

Marshall, No. 2:06-2790, 2009 WL 2971556, at *4 n.3 (E.D. Cal. 2009) (“The

requirement that there be a knowing and intelligent waiver of the right to counsel and

advisement about the dangers of self-representation, see Faretta v. California, 422

U.S. 806 (1975), arises from the Sixth Amendment which, under the holding of

Martinez [v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152

(2000)], does not apply to appellate proceedings.”). 

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 repeatedly demanding and then

rejecting court-appointed counsel—forfeited or knowinglyand voluntarilywaived his

right to have the assistance of new court-appointed counsel on direct appeal. 

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Under the standards of 28 U.S.C. § 2254(d), Koenig is not entitled to relief on

his claim that he was denied the constitutional right to appellate counsel. 

Substantially for the reasons given by the district court, Koenig’s other claims for

relief lack merit. I would affirm the order of the district court.

_____________________________

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