Koerner v. Grigas

Decision Date28 April 2003
Docket NumberNo. 01-15345.,01-15345.
Citation328 F.3d 1039
PartiesKelly KOERNER, Petitioner-Appellant, v. George A. GRIGAS, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Kelly Koerner, Petitioner-Appellant, Carson City, NV, appearing pro se.

David K. Neidert, Deputy Attorney General, Carson City, NV, for Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-97-00207-ECR/VPC.

Before D.W. NELSON, BEEZER and McLANE WARDLAW, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER.


D.W. NELSON, Senior Circuit Judge.

Petitioner Kelly Koerner ("Koerner"), a Nevada prisoner serving a sentence of life imprisonment without the possibility of parole, appeals the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. On appeal, Koerner has pursued only his claim that he was denied a direct appeal from his original conviction. The district court dismissed this claim as procedurally defaulted because it found that the Nevada Supreme Court had relied on an independent and adequate state procedural ground in denying the claim. Finding that our analysis is controlled by a recent en banc decision of this Court, we reverse, holding that the Nevada Supreme Court did not rely on an independent and adequate state ground and that Koerner's denial of direct appeal claim is therefore not procedurally defaulted.


Kelly Koerner is guilty of a brutal murder. He does not now claim innocence, and has not done so since pleading guilty. He does, however, raise questions about the fairness of the process by which he came to be imprisoned for the rest of his life, and the possible denial of rights that our Constitution extends even to the guilty.

On August 22, 1986, Kelly Koerner pled guilty to the murder of his ex-wife, Christie Koerner, in Reno, Nevada. Following a messy divorce, Koerner had purchased a handgun, and on April 28, 1986, he found his ex-wife as she was leaving her psychotherapist appointment and shot her five times in the head. Koerner told the state trial judge:

My statement, as simply and succinctly as I can put it, is that I was in Washoe County on that date, I was the one that held the gun, that shot Christie Koerner, and consequently she died because of it, and I am willing to plead guilty to the elements of murder one at this time.

Following his guilty plea to first degree murder, Koerner was sentenced to life without the possibility of parole — the maximum sentence available.

Koerner did not file a direct appeal within the applicable time limits. He ultimately attempted to appeal his conviction in August of 1996; the appeal was dismissed as untimely.

Koerner also pursued post-conviction relief in the Nevada courts, filing three successive petitions for relief. He filed the first petition on March 2, 1987, proceeding without counsel. In Grounds Four and Six, Koerner raised ineffective assistance of counsel claims; by way of explanation for why he had not raised any claims on direct appeal, he stated that "[a] direct appeal was not pursued due to the petitioners[sic] ignorance of the law and judicial process." Koerner was represented by appointed counsel at the hearing on the first petition, and testified that he only learned of the value of a direct appeal after discussing the matter with his fellow inmates. The petition was denied by the Nevada district court on February 3, 1988. The Nevada Supreme Court dismissed Koerner's appeal from the denial of the first petition on December 29, 1988, in a brief order that did not discuss the merits of his claims.

Koerner filed a second state post-conviction petition on May 25, 1988. In a supplement to that petition, Koerner alleged that his appointed post-conviction counsel had been ineffective in failing to raise the loss of his direct appeal in his first petition, and requested that the court "allow ... the exhaustion of the issue of why no direct appeal was taken." He presented a letter he had written to his appointed counsel, in which he related that his trial counsel had told him that a direct appeal would be worthless and a waste of their time. The Nevada district court dismissed the petition in a brief order filed January 2, 1990, and the Nevada Supreme Court dismissed Koerner's appeal on March 27, 1990. The order dismissing the appeal contains no discussion of Koerner's claims.

On July 7, 1993,1 Koerner filed a third state petition, a petition for a writ of habeas corpus.2 In Ground Five of that petition, he stated, "Public Defender attorneys failed to notify me or advise me of direct appeal rights and failed to file Notice of Appeal." The Nevada district court summarily dismissed the petition, finding that "this is a successive petition," and that, with one exception not relevant here, "there is absolutely nothing in the current Petition or its exhibits which has not already been addressed and considered twice previously." In an unpublished order filed November 24, 1993, the Nevada Supreme Court affirmed the denial of the petition. The court described the issues raised in the petition as follows:

In his petition, appellant argued the following: (1) he was improperly canvassed; (2) he did not know the elements of the offense or the consequences of the guilty plea; (3) his "firm denial of elements and involuntariness required the court to end the hearing and order a trial to be held on the charge"; (4) his attorney misinformed appellant as to the true consequences of a guilty plea and failed to investigate defenses; and (5) his plea was involuntary because of pressure, duress, threats and coercion.

The Nevada Supreme Court's order included one short paragraph analyzing the law supporting the denial of the petition:

A second or successive petition challenging the validity of a judgment of conviction must be summarily dismissed if it plainly appears from the face of the petition, the documents and exhibits annexed to the petition, and the records of the court that the petitioner is not entitled to relief. [Nev.Rev.Stat. §] 34.745(3). The district court did not err in summarily dismissing appellant's third petition. Appellant's petition raised claims which have either been rejected on their merits in decisions involving appellant's two prior post-conviction petitions or claims which could have been raised in the prior petitions. Appellant is procedurally barred from raising these claims in the instant petition. [Nev.Rev.Stat. §] 34.810; Washington v. State, 104 Nev. 309, 756 P.2d 1191 (1988).

The Nevada Supreme Court did not mention Koerner's claim that he had been denied the right to a direct appeal.

On April 11, 1997, Koerner filed the instant petition for writ of habeas corpus in federal district court for the district of Nevada. This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") — in which Congress greatly restricted the constitutional right to habeas corpus relief — because it was filed after AEDPA's effective date of April 24, 1996.

Ground Five of the federal petition alleged that Koerner's counsel had denied him the right to a direct appeal. The district court held, in an unpublished Memorandum Decision and Order entered April 29, 1999, that Ground Five was procedurally defaulted. The district court found that Ground Five was exhausted because Koerner had raised it in his third post-conviction petition, but noted that "[t]he[Nevada] district court found the petition procedurally defaulted pursuant to Nev.Rev.Stat. § 34.745(3)," and that "[t]he Nevada Supreme Court affirmed the district court's decision in denying Koerner's appeal."

Koerner filed a notice of appeal pro se, requesting leave to proceed in forma pauperis and the appointment of counsel. Pursuant to the AEDPA requirement that a certificate of appealability ("COA") be granted before any habeas appeal may be entertained, see 28 U.S.C. § 2253(c), this Court granted a COA as to two issues:

1. Did the district court err in dismissing as procedurally barred the claim of ineffective assistance of counsel in failing to perfect an appeal because Koerner fairly presented the claim on his first and second state court petitions?

2. Was the guilty plea involuntary because his attorney misled him about the direct consequences of a sentence of life without the possibility of parole?

Koerner was granted leave to proceed in forma pauperis and appellate counsel was appointed to represent him.

Koerner's appellate counsel filed briefs discussing both issues on which the COA had been granted. As to the failure to file a direct appeal, appellate counsel argued that the claim had been raised in Koerner's first and second state post-conviction petitions or, alternatively, that Koerner had shown cause for and prejudice from the procedural default.

After the opening brief was filed, this Court was made aware of disagreements between Koerner and his appointed appellate counsel. Although appellate counsel argued the involuntary guilty plea claim in the opening brief, the reply brief noted that Koerner had directed his counsel to abandon this claim, and expressly stated that he had done so "against the advice of counsel." On August 28, 2002, appellate counsel filed a Motion for Submission of Case on the Briefs, a motion that, if granted, would have disposed of oral argument for this appeal. On September 3, 2002, Koerner notified the Court that he was terminating representation by his appointed counsel; he attached a letter to his counsel indicating that he had not been notified that oral argument had been scheduled, and stating that the decision to submit the case on the briefs was unacceptable. On September 6, 2002,...

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