Right to counsel for petitions for review

Lots of interesting decisions today. Let's start with a decision that is probably only interesting to appellate nerds like me.

Brent Getty and Heather Cessna (now both having moved on to other jobs) won in Kargus v. State, No. 94,432 (Kan. October 15, 2007)(modified opinion), reversing summary denial of Mr. Kargus' K.S.A. 60-1507 motion in Johnson County. I argued the case in the KSC. The issue has to do with what, if anything, can a client do if his or her attorney fails to file a petition for review after losing at the COA. The problem is SCOTUS precedent that says that a defendant has no constitutional right to counsel for a discretionary appeal (like a petition for review). And even if you have some such right, the state argued that it would be impossible to show ineffective assistance of counsel because he or she would have to show that the KSC would have granted the petition (for prejudice).

The KSC held that defendant do have a statutory right to counsel throughout the state appellate proceedings. And, as in previous cases, the KSC has held that if there is a statutory right to counsel, it could presume that the legislature did not intend to provide ineffective counsel.

On the issue of what showing must be made, the KSC reviewed SCOTUS precedent for general IAC (Strickland), IAC by failure to file a direct appeal (Roe v. Flores-Ortega, 528 U.S. 470 (2000), and its own precedent governing late direct appeals (State v. Ortiz). The KSC acknowledged the differences between direct appeals and petitions for review and therefore rejected Mr. Kargus' attempt to apply Ortiz. But the KSC also rejected the state's suggestion that ordinary Strickland prejudice applies. For claims involving failure to file a petition for review, the KSC adoped the Flores-Ortega middle ground:

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.

This case is also notable for resolution of the question of whether the district court is empowered to provide a remedy.

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, 2006.

I hate to tell you I told you so, but . . . . (see here for previous post).

And thanks to the Defender Project for a great amicus brief cited by the KSC in its decision.

[Update: the KSC issued a modified opinion in this case correct a couple of incorrect factual assertions. The substance of the opinion did not change. The link has been updated to the modified opinion.]