On remand, Judge Tatum granted relief to Mr. Kargus, allowing him to file a late petition for review, and the state appealed. On appeal, the state conceded that appellate counsel did not consult with Mr. Kargus about a possible petition for review; nor did the state contest that Mr. Kargus would have directed that appellate counsel file a petition for review, had he been consulted. Instead, the state argued that failure to file the petition for review was not objectively unreasonable. The COA disagreed:
[Appellate counsel's] failure to define the scope of his representation, compounded by statements which could have led Kargus and Monroe to misunderstand that scope, was ineffective assistance in itself. A lawyer is obliged to “keep a client reasonably informed about the status of a matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Given that the decision to appeal belonged to Kargus, he needed enough information to accomplish his wish to “go as far as it would go.” This information included Kargus' right to file a petition for review and whether [appellate counsel] was representing him for that purpose. The fact that this information was not communicated was ultimately attributable to [appellate counsel], not to Kargus or Monroe.The state also argued that the decision to file a federal habeas petition in lieu of a petition for review was objectively reasonable. The COA again disagreed:
Given Kargus' stated intention to have his appeal “go as far as it would go,” [appellate counsel's] strategic decision to forego the filing of a petition for review was objectively unreasonable. On the one hand, [appellate counsel] did not claim that his failure to file a petition for review provided any strategic benefit to Kargus. Indeed, no benefit is apparent. On the other hand, [appellate counsel's] failure resulted in Kargus being procedurally precluded from having his case reviewed by the Kansas Supreme Court. This consequence was clearly detrimental to Kargus' stated intention to obtain appellate relief from the adverse decision of the Court of Appeals.[Update: the state, ironically, filed a petition for review from this decision on December 9, 2009].
Moreover, [appellate counsel's] failure to file a petition for review (thereby failing to exhaust Kargus' state remedies) also procedurally barred Kargus from relief in the federal court. This was an adverse consequence which Kargus ultimately conceded in the federal district court action.
[Further update: the KSC denied the state's petition for review from the COA decision affirming the IAC finding and contemporanously denied Mr. Kargus' petition for review in the original case on March 21, 2010.]