Statutory right to effective retained habeas counsel

Janine Cox and I won in McIntyre v. State, No. 111,580 (Kan. App. Sept. 1, 2017), obtaining a new hearing pursuant to K.S.A. 60-1507 in Douglas County. In 2012, Mr. McIntyre filed a second motion pursuant to K.S.A. 60-1507 after his convictions for aggravated kidnapping and other charges were affirmed in 2002 and after an unsuccessful first motion pursuant to K.S.A. 60-1507 and federal habeas petition. The second motion included a claim that Mr. McIntyre's received ineffective assistance from his retained counsel who attempted to appeal the denial of his first motion pursuant to K.S.A. 60-1507. The district court dismissed the second motion holding that a person is not entitled to effective assistance of retained counsel under K.S.A. 60-1507. The COA held that the statutory right to effective assistance of counsel reached to retained counsel as well as appointed counsel:

In our view, the statutory right to counsel established by K.S.A. 22–4506(b) is predicated upon the apparent merits of the K.S.A. 60–1507 motion, rather than the financial means of the movant. Once a district court determines the motion presents substantial questions of law or triable issues of fact, the statutory right to counsel attaches, regardless of the movant's indigency. And once the statutory right to counsel attaches, the movant is entitled to effective representation by counsel, whether appointed or retained. As our Supreme Court has stated, “[K.S.A.] 60–1507 movants who have counsel are entitled to effective assistance of that counsel.”

This interpretation not only makes good sense, more importantly, it also serves the obvious legislative purpose of K.S.A. 22–4506(b). As our Supreme Court has observed, to establish a statutory right to counsel “ ‘but then refuse to require some modicum of competence by such counsel, seems repugnant to the obvious legislative intent.’”  By its plain words, K.S.A. 22–4506(b) implements the legislature's intent to safeguard a movant's right to be represented by counsel who will provide effective legal assistance.

As a result, the COA remanded for a determination of whether Mr. McIntyre received effective assistance of counsel from the appeal of his first motion.

[Update: the state did not file a PR and the mandate issued on October 10, 2017.]