KIRKLON BOYD
VS.
STATE OF LOUISIANA
No.2020-KH-00503
_ _ _ _ _ _
IN RE: Kirklon Boyd - Applicant Plaintiff; Applying For Supervisory Writ, Parish
of Jefferson, 24th Judicial District Court Number(s) 15-4164, Court of Appeal, Fifth
Circuit, Number(s) 20-KH-17;
_ _ _ _ _ _
September 23, 2020
Writ application granted in part. See per curiam.
WJC
JLW
JDH
SJC
JTG
JHB
Supreme Court of Louisiana
September 23, 2020
09/23/2020 "See News Release 034 for any Concurrences and/or Dissents."

09/23/20
S
UPREME COURT OF LOUISIANA
No
. 20-KH-0503
S
TATE OF LOUISIANA
v.
KI
RKLON BOYD
O
N SUPERVISORY WRITS TO THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
PE
R CURIAM:
W
rit granted in part. Defendant pleaded guilty, waived his right to appeal,
and was informed of the time in which to apply for post- conviction relief.
Defendant then timely applied for post- conviction relief, alleging he received
ineffective assistance of counsel. The district court found the application for post-
conviction relief to be premature because defendant did not first seek an out- of-
time appeal pursuant to State v. Counterman , 475 So.2d 336 (La. 1985). The
district court erred.
Code of Criminal Procedure art. 924.1 provides, “An appl ication for post
conviction relief shall not be entertained if the petitioner may appeal the conviction
and sentence which he seeks to challenge, or if an appeal is pending.” It should
not, however, be construed as requiring that a defendant pursue an appe al he has
waived, forfeited, or does not want before he applies for post-conviction relief. In
addition, this court in State v. Counterman , 475 So.2d 336, 339 (La. 1985),
concluded that “the appropriate procedural vehicle for a defendant to seek the
exercise of his right to appeal, after the delay provided in Article 914 has expired,

2

is an application for post conviction relief pursuant to Articles 924 –930.7.” This
court further noted:
When the defendant has an appeal pending or may still
appeal, the court cannot entertain an application for
post conviction relief. La.C.Cr.P. Art. 924.1. However,
when the time for appealing has elapsed without the
filing of an appeal, defendant may seek reinstatement
of his right to appeal by application for post
conviction relief in the trial court.

Counterman, 475 So.2d at 339 n.4 (emphasis added). Thus, State v. Counterman
provides a mechanism by which a defendant may seek reinstatement of his right to
appeal after he has lost it. It does not require that a defendant seek reinstatement of
his right to appeal before he can present a claim of ineffective assistance of counsel
by timely filed application for post-conviction relief. Notably, claims of ineffective
assistance of counsel are normally relegated to collateral revie w. See State v.
Burkhalter, 428 So.2d 449, 456 (La. 1983). Accordingly, the matter is remanded to
the district court, which is ordered to consider the application for post-conviction
relief in accordance with procedures provided in La.C.Cr.P. arts. 927 et seq. The
application is otherwise denied.