Monday, February 11, 2013

Right to counsel in habeas appeal

Matthew Markovich won his pro se appeal in Markovich v. Green, No. 106,937 (Kan. App. Feb. 8, 2013), obtaining a remand for appointment of counsel to assist him in his appeal from denial of his habeas petition pursuant to K.S.A. 60-1501.  The question involved interpretation of K.S.A. 22-4506, which governs appointment of counsel for indigent persons in habeas cases:
(b) If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided by K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel . . . to assist such person . . . . 
(c) If an appeal is taken in such action and if the trial court finds that the petitioner or movant is an indigent person, the trial court shall appoint counsel to conduct the appeal.
The district court had found that Mr. Markovich's 1501 petition did not present substantial questions of law or triable issues of fact, so he did not get an attorney at the district court level.  The state argued that an indigent habeas appellant should only be entitled to appointment of counsel if he or she met the test set forth in subsection (b).  The COA rejected this argument under the plain language of the statute:
There is no threshold requirement found in K.S.A. 22-4506(c) that a petition for writ of habeas corpus under K.S.A. 60-1501 must present substantial questions of law or triable issues of fact in order for an indigent petitioner to obtain appointed appellate counsel.
So, Mr. Markovich gets an attorney to help with his appeal.

We get quite a few of these appeals at the ADO.  The problem is that, if a habeas petitioner doesn't have the assistance of counsel at the trial level, they are rarely able to navigate the procedural requirements to even get into the courthouse doors on the merits.  Even though the rules indicate that the district court should have a hearing unless the records and files clearly show the movant isn't entitled to relief, in practical effect, the vast majority of these cases are disposed of without a hearing because the petitioner isn't able to frame and document the issues sufficiently.  So, by the time the case gets to an appeal, there is usually not much to do.  If the legislature really wanted to make sure that these cases were meaningfully presented and resolved, it should consider requiring appointment of counsel for at least one habeas proceeding after conviction and direct appeal.

[Update: the Department of Corrections filed a PR on March 8, 2013.]

[Further update: the KSC denied the Department's PR and the mandate issued on October 3, 2013].

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