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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN DANIEL BANGS, )
) Court of Appeals No. A-5552
Appellant, ) Trial Court No. 3AN-S94-2055CI
) t/w 3AN-S80-4172CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1459 - February 16, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Elaine M.
Andrews, Judge.
Appearances: G. Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
M. Hora, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Wolverton, District Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
John Daniel Bangs was convicted in 1980 of murder in
the first degree and was sentenced to a term of ninety-nine
years' imprisonment. After this court affirmed Bangs' conviction
and sentence, Bangs v. State, 663 P.2d 981 (Alaska App. 1983),
Bangs filed an application for post-conviction relief, asserting
multiple claims. The superior court denied the application; we
subsequently affirmed the superior court's ruling. Bangs v.
State, Memorandum Opinion and Judgment No. 1982 (Alaska App.,
March 21, 1990).
In 1994, Bangs again applied for post-conviction
relief. His new application asserted that, at Bangs' trial, the
prosecution and various prosecution witnesses had improperly
"vouched" for the state's case by expressing their opinions as to
Bangs' guilt and the credibility of the state's evidence. Bangs
also alleged that his prior attorneys had been ineffective in
failing to raise this issue at trial, on direct appeal, and in
his first post-conviction relief affidavit.
Upon motion by the state, and following notice to
Bangs, Superior Court Judge Elaine M. Andrews dismissed Bangs'
second application for non-compliance with Alaska Rule of
Criminal Procedure 35.1(h), which states:
All grounds for relief available to
an applicant under this rule must be raised
in the original, supplemental or amended
application. Any ground finally adjudicated
or not so raised, or knowingly, voluntarily
and intelligently waived in the proceeding
that resulted in the conviction or sentence
or in any other proceeding the applicant has
taken to secure relief may not be the basis
for a subsequent application, unless the
court finds a ground for relief asserted
which for sufficient reason was not asserted
or was inadequately raised in the original,
supplemental, or amended application.
In ordering the application dismissed, Judge Andrews concluded
that Bangs had failed to meet the threshold requirement of
showing a "sufficient reason" for his failure to assert his
current claim of "vouching" in his prior application for post-
conviction relief. Bangs appeals the superior court's dismissal
order, arguing that the court erred in finding sufficient reason
lacking. We affirm.
On appeal, Bangs devotes considerable attention to the
issue of what constitutes a "sufficient reason" under Rule
35.1(h) to excuse a failure to raise a claim in a prior post-
conviction relief application. In Billingsley v. State, 807 P.2d
1102, 1106 (Alaska App. 1991), we summarily upheld a superior
court finding of sufficient reason under the rule; we found it
unnecessary to elaborate on the sufficient reason requirement.
In Merrill v. State, 457 P.2d 231, 238 (Alaska 1969), overruled
on other grounds, Donnelly v. State, 516 P.2d 396 (Alaska 1973),
the supreme court found "no need . . . to catalog sufficient and
insufficient excuses" under Rule 35.1(h)'s predecessor, but
mentioned "one excuse which is insufficient: The simple failure
of counsel to raise a claim of error." These precedents indicate
that determining whether a sufficient reason has been shown under
Rule 35.1(h) is a matter best left to the trial court's sound
discretion, subject to case-by-case appellate review for abuse of
discretion. Cf. Hensel v. State, 604 P.2d 222, 235 & n.55
(Alaska 1979) (finding abuse of discretion standard generally
applicable in reviewing trial court rulings in post-conviction
relief actions).1
We agree with Bangs that the sufficient reason
requirement will almost always, if not always, be met by a
showing that the failure to assert a claim in a prior application
resulted from ineffective assistance of counsel. We also agree
with Bangs that the sufficient reason requirement need not be
stringently construed or grudgingly applied -- that the
requirement encompasses a broad spectrum of possible reasons
short of actual incompetence of counsel. However, we think it
safe to venture that on the lenient side of the spectrum an
applicant's showing of sufficient reason for a late claim must at
least negate the possibility of a prior tactical bypass of the
claim by either the applicant or applicant's counsel; and the
showing must also at a minimum rule out inexcusable neglect or
bad faith on the applicant's part.
Bangs' showing fails even these minimal benchmarks.
Fourteen years after his conviction, eleven years after that
conviction was affirmed on appeal, and four years after the final
rejection of his initial post-conviction relief action, Bangs
sought to pursue a claim that the state improperly vouched for
its case at trial. The claim was not preserved by objection at
trial and appears to present issues of routine evidentiary error.2
Bangs has previously raised a total of at least eleven issues on
direct appeal and post-conviction relief; he did not raise the
claim he now asserts.
As a sufficient reason for not previously asserting his
claim of improper vouching, Bangs alleged that his prior
attorneys were ineffective in failing to raise it. Bangs
submitted affidavits from two attorneys who handled portions of
his first post-conviction relief action and his direct appeal, as
well as a letter from the attorney who represented Bangs at
trial. Bangs maintains on appeal that these documents make out a
prima facie case of ineffective assistance of counsel and that,
even if they do not, they at least show sufficient reason to
excuse his fourteen-year delay.
However, Bangs' claim of ineffective assistance is
clearly foreclosed as to his trial counsel. In both his direct
appeal and his prior post-conviction relief action, Bangs has
already unsuccessfully claimed that his trial counsel was
ineffective. Moreover, the letter that Bangs submitted from his
trial counsel does not support a finding of ineffective
assistance. Through time-shrouded memory, trial counsel had
"vague recollections" of valid tactical reasons for failing to
object to the challenged incidents of vouching.
As to Bangs' representation on direct appeal, Bangs
submitted an affidavit prepared by the attorney who briefed
Bangs' case at that stage. In the affidavit, counsel avers that,
when he came into the case, he inherited a statement of points on
appeal prepared by someone else; because he was then relatively
inexperienced, Bangs' new appellate counsel briefed the issues he
inherited without adding any. Hence, he failed to discover the
vouching issue.
But this affidavit falls short of the mark. It does
not disclose who prepared and filed the statement of points on
appeal that this attorney inherited. If it was Bangs' trial
counsel who prepared the points on appeal, then the record would
support the conclusion that counsel was aware of the vouching
issue and knowingly bypassed it; absent contrary proof, we are
required to presume that counsel's tactical reasons were sound.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988). If it was
some other, undisclosed attorney,3 then, for reasons that are
unexplained, Bangs has failed to account for that attorney's
failure to discover or raise the vouching issue. Specifically,
Bangs has failed to rule out the possibility that this unnamed
attorney discovered the issue and rejected it, either as unworthy
or on some other ground.
In either event, regardless of whether it was trial
counsel or someone else who prepared the points on appeal, Bangs
presents no information to establish that the attorney who
briefed his case on direct appeal provided constitutionally
deficient representation in accepting and relying on the tactical
decisions made by the attorney who formulated those points.4
Similar problems arise with regard to the affidavit of
the attorney who represented Bangs in the first post-conviction
relief action. This attorney attested that Bangs initiated the
post-conviction relief action on his own; that Bangs had another
inmate who helped him with his pleading. When counsel entered
the case, another attorney had already represented Bangs in
connection with the action. By then, "Bangs already had
determined the grounds for seeking postconviction relief[.]"
Counsel spoke with Bangs and went over the issues with him; they
agreed to consolidate some of the issues. Counsel briefed those
issues and looked for no others because he had been "appointed to
the case relatively late in the process." He understood that he
had been appointed to assist Bangs with the issues already
raised.
Missing here is any account of who selected the issues
in Bangs' first application, how and why they were selected, what
other issues were considered and rejected, and how counsel got
the impression that Bangs wanted him to do nothing more than
pursue the issues already raised. Bangs has utterly failed to
explain how and when he discovered the issue he now seeks to
pursue. He has provided no assurance that he was not personally
aware of the vouching issue when he decided upon the issues to be
included in his first application; nor has he given assurance
that others who might have assisted him were not so aware. Bangs
gives no indication that he did not previously elect to omit the
vouching issue. And he provides nothing to show that his
attorney misconstrued Bangs' desires in connection with the
claims to be pursued in the first application -- in other words,
that counsel did not do precisely what Bangs asked for.
Most of the missing information would presumably be
within the scope of Bangs' personal knowledge. As an applicant
for post-conviction relief, Bangs was expressly required to
support his application by a sworn statement disclosing all
relevant information within his own knowledge: "Facts within the
personal knowledge of the applicant shall be set forth separately
from other allegations of facts and shall be under oath." Alaska
R. Crim. P. 35.1(d). Yet conspicuously absent from the record is
any statement by Bangs himself. Without such a statement,
neither the superior court nor this court is given any ground for
concluding that Bangs has proceeded in good faith and acted with
due diligence in connection with his failure to raise the
"vouching" claim in his first post-conviction relief application.
There is likewise no ground for concluding that Bangs' counsel
acted incompetently or unreasonably.5
Before concluding that Bangs had failed to show
sufficient reason for failing to assert his "vouching" claim
earlier, the superior court afforded Bangs ample opportunity to
amend and supplement his application on this point. The superior
court ultimately concluded that, despite this opportunity, Bangs
"remain[ed] unclear about the reasons the issue was omitted from
prior [a]pplications." We are convinced that the record supports
this conclusion. Accordingly, we hold that the superior court
did not abuse its discretion in declining to find sufficient
reason to excuse Bangs' tardy claim.
The superior court's order dismissing Bangs'
application is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution.
1. Specifically, we decline Bangs' invitation to treat the "sufficient reason"
issue as a question of law subject to de novo review on appeal. We
likewise decline Bangs' request to adopt, as an aid in determining whether
a sufficient reason has been shown, the test articulated in Sanders v.
United States, 373 U.S. 1 (1963). Given the specific language of Rule
35.1(h), we find the Sanders test both unnecessary and potentially
problematic.
2. In this regard, it is unclear how the issue could be encompassed within the
limited number of constitutional, jurisdictional, or otherwise fundamental
categories of claims that may be asserted in a Rule 35.1 application. See
Alaska R. Crim. P. 35.1(a)(1)-(7). Bangs summarily claims that improper
"vouching" can violate a defendant's constitutional right to due process.
But virtually any common evidentiary mistake could be dressed in this loose
rhetorical garb and paraded as constitutional error. Bangs cites no
authority for the proposition that an ordinary claim of improper vouching
is cognizable in the context of a post-conviction relief application.
3. This seems more likely, since Bangs' direct appeal included a claim of
ineffective assistance against his trial counsel, and the attorney who
wrote Bangs' brief has now attested that he briefed the points on appeals
he inherited without adding new issues. It seems unlikely -- though
perhaps not inconceivable -- that Bangs' trial counsel would have raised a
claim of ineffective assistance against himself.
4. We do not suggest that an attorney who enters an appearance in a case for
purposes of appeal can blindly rely on trial counsel's suggestions, with no
duty to conduct an independent review and evaluation of the record for
additional points. However, the nature and scope of an attorney's
obligations cannot be gauged in the abstract, but must be evaluated in the
full factual context of the specific case at hand; for "[a]n informed
decision on the issue of competence can be made only with full knowledge of
the reasoning and information upon which counsel chose to act." Jones, 759
P.2d at 569. In the circumstances at issue here, the reasonableness of the
appellate attorney's conduct might vary depending on the circumstances
surrounding the preparation of the inherited points on appeal, any
communications that might have occurred between the attorney who prepared
the points and that attorney's successor, and any communications between
either attorney and Bangs himself. Cf. Id. ("The reasonableness of
counsel's actions may be determined or influenced by the defendant's own
statements or actions[.]") (quoting Strickland v. Washington, 466 U.S. 668,
691 (1984)).
With virtually no information concerning the circumstances surrounding the
preparation of the points on appeal in this case, neither this court nor
the superior court had any basis for presuming -- from the mere fact of
appellate counsel's reliance on the inherited points on appeal -- that the
attorney who briefed Bangs' appeal acted incompetently.
5. Bangs' argument on appeal seems to assume that, in light of the requirement
that an applicant for post-conviction relief raise all available grounds
for relief in the initial application, Alaska R. Crim. P. 35.1(h), an
attorney appointed to assist the applicant has a duty to protect the
applicant's rights by initiating, sua sponte, an independent review of the
entire trial and appellate record in search of potential grounds. Bangs
cites no authority to support such a conclusion, and, indeed, no authority
at all addressing the scope of an attorney's duties under circumstances
similar to those at issue in this case. We again note, however, that the
nature and scope of an attorney's duties to a client cannot be determined
in the abstract. See n.4, supra. And we again emphasize that Bangs has
failed to set forth sufficient facts to allow any informed assessment of
the reasonableness of his attorney's conduct in connection with the first
application.
In this regard, Bangs' case is readily distinguishable from Billingsley v.
State, 807 P.2d 1102, 1105-06 (Alaska App. 1991), where we upheld a trial
court finding of sufficient reason under Rule 35.1(h) based on concrete
evidence that prior counsel's limited efforts in assisting on an earlier
post-conviction relief application were specifically attributable to
circumstances beyond Billingsley's control: a narrowly drawn order of
appointment and a contractual agreement requiring prior counsel to confine
representation to the narrow scope prescribed by the court.
