                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2260
                        ___________________________

                                  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 of livestock 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 last-
minute 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.


                                          -2-
             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
was resolved 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 as this 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



                                         -3-
trial court.1 Following the receipt of the Supreme Court’s order, Koenig filed a
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:




      1
       In response to our request, Koenig’s counsel in this proceeding conducted
an investigation and reported that there is no record that the December 28, 2009,
motion was ever refiled with the state trial court.

                                          -4-
             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).2 Koenig filed a motion for reconsideration with the
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 of July 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.

      2
       Koenig’s petition for writ of certiorari from that decision was denied later that
year. Koenig v. North Dakota, 131 S. Ct. 664 (2010).

                                           -5-
       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

                                          -6-
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 as requiring that indigent defendants be provided counsel unless the 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:

                                           -7-
      [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 constitutional rights 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


                                          -8-
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 is thirty 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 request for 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.

                                           -9-
       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 constitutional requisite, 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, it simply 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

                                         -10-
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 it found 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 claim that he was denied a constitutional right to counsel on direct

                                         -11-
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 as several 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 court-
appointed 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.


                                          -12-
       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 was thus 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

                                          -13-
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

                                          -14-
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 knowingly and voluntarily waived his
right to have the assistance of new court-appointed counsel on direct appeal.

                                          -15-
        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.
                        _____________________________




                                         -16-
