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Grinols v. State (10/13/00) ap-1694
Grinols v. State (10/13/00) ap-1694
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN BRUCE GRINOLS, )
) Court of Appeals No. A-7349
Appellant, ) Trial Court No. 1KE-99-019 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1694 - October 13, 2000]
)
Appeal from the Superior Court, First Judicial District,
Ketchikan, Thomas M. Jahnke, Judge.
Appearances: John Bruce Grinols, in propria persona, for
Appellant. Nancy R. Simel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
In 1994, John Bruce Grinols was convicted of three counts of sexually
abusing a minor. This court affirmed Grinols's convictions in May 1995.1 Several
months later, Grinols filed a petition for post-conviction relief, alleging that he had
received ineffective assistance of counsel from his trial attorney. The superior court
denied the petition and, in August 1998, this court affirmed the superior court's decision.2
In January 1999, Grinols filed a petition for writ of habeas corpus in which
he raised new attacks on his conviction. The superior court, relying on Civil Rule 86(m),
ruled that Grinols's habeas corpus petition had to be treated as a second petition for post-
conviction relief. And because AS 12.72.020(a)(6) declares that a defendant is generally
entitled to file only one petition for post-conviction relief, the superior court dismissed
Grinols's lawsuit.
Grinols argues that he has a constitutional right to pursue the new collateral
attacks on his conviction. He contends that Civil Rule 86(m) abridges the constitutionally
guaranteed right of habeas corpus. Alternatively, Grinols argues that even if his
application must be deemed a second petition for post-conviction relief, he nevertheless
has a constitutional right to litigate his claims in spite of AS 12.72.020(a)(6). Finally,
Grinols contends that he is entitled to the assistance of counsel at public expense to aid
him in this litigation.
As we explain in more detail below, all but three of Grinols's claims would
be barred under the doctrine of res judicata that applied to habeas corpus and post-
conviction relief litigation even before the enactment of Civil Rule 86(m) and AS 12.72.-
020(a)(6). Moreover, of Grinols's three remaining claims, one could have been raised in
Grinols's underlying criminal case without filing a petition for post-conviction relief,
while another falls within a legislatively-created exception to the ban on second petitions
for post-conviction relief.
Thus, only one claim remains: Grinols's contention that he received
ineffective assistance of counsel when he litigated his first petition for post-conviction
relief. To resolve this claim, we must address the constitutionality of Civil Rule 86(m)
and AS 12.72.020(a)(6). We also must address the constitutionality of AS 18.85.-
100(c)(1), the statute which declares that an indigent defendant is entitled to counsel at
public expense to pursue a first petition for post-conviction relief, but not to pursue any
successive petition.
For the reasons explained in this opinion, we uphold the constitutionality of
Civil Rule 86(m), the rule which states that post-conviction relief supersedes habeas
corpus as the procedural method for collaterally attacking a criminal conviction. And,
with certain limited exceptions, we uphold the constitutionality of AS 12.72.020(a)(6), the
statute which bars a defendant from pursuing successive petitions for post-conviction
relief.
But under the due process clause of the Alaska Constitution, we must allow
defendants to pursue a second petition for post-conviction relief if they allege that they
received ineffective assistance of counsel when they litigated their first petition.
Defendants have a right, under Alaska law, to competent legal representation when they
litigate a first petition for post-conviction relief. Therefore, a defendant must be allowed
to attack the result of that first post-conviction relief litigation by showing that they
received incompetent representation.
Finally, we hold that indigent defendants are not entitled to counsel at public
expense when they litigate a second petition for post-conviction relief. We nevertheless
hold that the superior court has the authority, under the due process clause, to appoint
counsel for an indigent defendant if the court concludes that a lawyer's assistance is
needed for a fair and meaningful litigation of the defendant's claim.
1. Underlying facts, and an explanation of the superior court's ruling
As explained above, Grinols lost a direct appeal of his convictions,
and he then litigated and lost a petition for post-conviction relief (and an ensuing
appeal). Grinols then filed a petition for writ of habeas corpus.
In his habeas petition, Grinols alleged that dozens of procedural
errors and denials of due process occurred at his trial, his sentencing, his appeal,
his petition for hearing to the Alaska Supreme Court, his first petition for post-
conviction relief, and his appeal from the denial of post-conviction relief. As part
of these allegations, Grinols asserted that he received ineffective assistance from
all six attorneys who represented him during the various stages of his litigation.
Relying on Alaska Civil Rule 86(m) and AS 12.72.020(a)(6), both
enacted in 1995, Superior Court Judge Thomas M. Jahnke dismissed Grinols's
petition. The judge ruled that, under Civil Rule 86(m), Grinols's petition for writ
of habeas corpus had to be deemed a petition for post-conviction relief. Having
ruled that Grinols's pleading was in fact a second petition for post-conviction
relief, Judge Jahnke dismissed the petition because AS 12.72.020(a)(6) bars a
defendant from filing more than one petition for post-conviction relief. Judge
Jahnke also denied Grinols's request for the appointment of counsel at public
expense. The judge noted that, under AS 18.85.100(c)(1), an indigent defendant's
right to appointed counsel extends only to the defendant's first petition for post-
conviction relief.
Alaska Civil Rule 86(m) declares that habeas corpus can not be used
as a substitute for post-conviction relief. Specifically, Rule 86(m) states that the
habeas corpus remedy described in Rule 86
does not apply to any post-conviction proceeding that could
be brought under Criminal Rule 35.1. The court shall treat
such a [habeas corpus] complaint as an application for post-
conviction relief under Criminal Rule 35.1 and, if necessary,
transfer the application to the court of appropriate jurisdiction
for proceedings under that rule.
Rule 86(m) codifies the decision reached by this
court in Wood v. Endell.3 In Wood, a prisoner filed a petition
for habeas corpus in which he attacked his underlying
conviction. Construing Criminal Rule 35.1, we held that
Alaska's post-conviction relief procedures were intended to
supersede the habeas corpus remedy, and we therefore ruled
that a habeas petition attacking a criminal conviction should
normally be deemed a petition for post-conviction relief.4
In Alaska, a defendant's right to seek post-
conviction relief is governed by AS 12.72. One of the statutes
contained in this chapter, AS 12.72.020(a)(6), declares that
(with certain limited exceptions) a defendant may pursue only
one petition for post-conviction relief. Grinols has already
litigated a previous petition for post-conviction relief. Thus,
unless one or more of Grinols's claims falls under a
constitutional or statutory exception to the normal ban on
successive petitions for post-conviction relief, all of Grinols's
claims are barred.
2. The limited scope of the constitutional problem presented in
Grinols's case: Most of Grinols's claims would have been barred
under prior law. Only a few of Grinols's claims are affected by the
changes enacted by the Alaska Legislature and the Alaska Supreme
Court in 1995.
Grinols's case requires us to clarify a defendant's right
to collaterally attack a criminal judgement. In particular, Grinols
asks us to examine the constitutionality of certain changes that the
Alaska Supreme Court and the Alaska Legislature made to this area
of the law in 1995: the court's enactment of Civil Rule 86(m) and
the legislature's enactment of AS 12.72 (and its concomitant
amendment of Criminal Rule 35.1). But before we begin our
analysis of these 1995 changes, it is important to point out that most
of Grinols's present claims would have been barred under Alaska
law as it existed before 1995.
(a) Alaska law between 1968 and 1995
Society has a substantial interest in making sure that
criminal litigation eventually reaches an end. All persons involved
in the litigation - defendants, victims, families and friends,
investigative agencies, as well as the public at large - have a right
to expect that criminal cases will be finally resolved at some point.
If prisoners are allowed to assert claims long after their trials, society
runs the risk that re-trials may be ordered years after the event, when
witnesses may no longer be available or their memories of the
pertinent occurrences have been lost or diminished. In addition,
piecemeal litigation of successive and often fruitless post-conviction
claims poses a significant cost to the courts and the other
components of the criminal justice system. As our supreme court
recognized in Merrill v. State,
finality may be a crucial element [in the] effectiveness [of the
criminal law]. A procedural system which permits an endless
repetition of inquiry into facts and law in a vain search for
ultimate certitude implies a lack of confidence about the
possibilities of [administering] justice that cannot but war
with the effectiveness of the [law's] underlying substantive
commands. Furthermore, ... an endless reopening of
convictions, with its continuing underlying implication that
perhaps the defendant can escape from corrective sanctions
after all, [is potentially inconsistent] with the aim of
rehabilitating offenders.
457 P.2d 231, 236 (Alaska 1969).5
For these reasons, the Alaska Supreme Court
restricted a defendant's ability to pursue successive petitions
for post-conviction relief. This restriction took the form of a
rule requiring joinder of all of a defendant's post-conviction
claims in a single litigation. This compulsory joinder rule was
originally enacted in 1968 as Criminal Rule 35(i); it was later
recodified as Criminal Rule 35.1(h).6
Under this rule, defendants who pursued post-
conviction relief were required to present all of their claims in
one combined litigation. All of the petitioner's claims for
post-conviction relief had to be "raised in [the petitioner's]
original, supplemental[,] or amended application". Once a
defendant's first petition for post-conviction relief was
adjudicated, any past or potential post-conviction claim
became res judicata. That is, the defendant was thereafter
barred from seeking post-conviction relief on the basis of
(a) any claim already decided against the defendant and (b)
any claim that could have been raised in the first petition. To
pursue a second petition for post-conviction relief, the
defendant had to establish good reason for failing to raise
their post-conviction claim in the prior petition.7
For instance, in Merrill, the defendant filed a
multi-claim petition for post-conviction relief. After
extensive litigation, the superior court denied the petition.
One month later, Merrill filed another petition, this one
asserting that his trial jury had been selected in a
discriminatory fashion. The superior court denied this second
petition without holding a hearing to investigate Merrill's
allegation.8 On appeal, the supreme court ruled that the
superior court had acted properly: this second petition was
subject to summary dismissal because Merrill did not offer a
valid reason for failing to raise the jury claim in his previous
petition.9
(b) The 1995 changes in the law
The law on this point remained unchanged until 1995,
when both the supreme court and the legislature revised the rules
governing post-conviction relief.
In January 1995, the supreme court amended Civil Rule
86 - Alaska's habeas corpus rule - by adding sections (m) and
(n).10 As explained above, section (m) of Civil Rule 86 declares that
habeas corpus is not available in situations where a post-conviction
proceeding could be brought under Criminal Rule 35.1. In such
cases, courts are directed to treat any habeas corpus complaint as an
application for post-conviction relief. Section (n) of the Rule 86
clarifies that habeas corpus is not intended to serve as "a substitute
for ... any remedy incident to the proceedings in the trial court, or
direct review of a sentence or conviction." Section (m) was based on
this court's decision in Wood v. Endell, while section (n) was
intended as a counterpart to Criminal Rule 35.1(b).11
Later that same year, the legislature substantially
amended post-conviction relief procedures by re-writing Criminal
Rule 35.1 and by enacting AS 12.72.12 The new version of Criminal
Rule 35.1 contains no provision like former section (h), the rule
requiring joinder of claims. In fact, the legislature expressly
repealed Rule 35.1(h).13
However, the legislature codified various new
restrictions on post-conviction relief in AS 12.72.020. Subsection
020(a)(1) prohibits a defendant from pursuing a claim for post-
conviction relief if the claim "is based on the admission or exclusion
of evidence at trial". Subsection (a)(2) prohibits a defendant from
pursuing a claim for post-conviction relief if the claim "was, or could
have been ... , raised [on] direct appeal". Subsections (a)(3) and
(a)(4) place time limits on petitions for post-conviction relief.
(Depending on the circumstances, the petition must be filed within
either one or two years of the date of the judgement being attacked,
or within one year of an ensuing decision on appeal.) Subsection
(a)(5) prohibits a defendant from pursuing a claim that was either
"decided on its merits or on procedural grounds in any previous
proceeding". And finally, subsection (a)(6) prohibits a defendant
from pursuing a claim for post-conviction relief if the defendant "has
... filed a previous application for post-conviction relief".
AS 12.72.020(a)(6) performs a function analogous to
the rule of compulsory joinder of claims contained in former
Criminal Rule 35.1(h), but the statute reaches farther than the old
rule. Under former Rule 35.1(h), a petitioner could pursue a second
petition for post-conviction relief if the defendant demonstrated that
the new claim could not have been raised earlier.
AS 12.72.060(a)(6) contains no such exception. Under
AS 12.72.020(a)(6), defendants are no longer permitted to file a
second petition for post-conviction relief, even if they can show that
they were unable to raise their claim in their first petition.
(c) Application of AS 12.72.020(a)(6) to Grinols's case: the
limited effect of this statute
AS 12.72.020(a)(6) has only a small effect on Grinols's
case because almost all of Grinols's claims would have been barred
under the old rule of compulsory joinder contained in former
Criminal Rule 35.1(h). That is, almost all of Grinols's claims are
barred by the doctrine of res judicata: they were litigated in his
direct appeal, or they were raised in his first petition for post-
conviction relief, or they could have been raised in that first petition.
14 Grinols raises only three claims that conceivably escape this bar.
The first claim that may not be barred by the doctrine
of res judicata is Grinols's assertion that his probation has been
illegally extended until the year 2002. This claim apparently arises
from the fact that Grinols was earlier released on probation and then
was sent back to prison because of a probation violation. Grinols
disputes the Department of Corrections's re-calculation of his new
release date.
This is conceivably a new claim, depending on when
the re-calculation occurred, and when Grinols learned of it. If it is a
new claim, AS 12.72.020(a)(6) does not bar it. Although section
020(a)(6) generally prohibits successive petitions for post-conviction
relief, the legislature created an exception for claims relating to
administrative decisions of the Department of Corrections or the
Board of Parole. Under AS 12.72.020(c), Grinols is entitled to attack
the Department of Corrections's calculation of his release date if this
claim could not have been raised in his prior petition for post-
conviction relief. Thus, if Grinols's claim is indeed a newly-arisen
claim, it is not barred.
Indeed, Grinols points this out in his brief. The State
does not dispute that an exception exists for claims relating to
administrative decisions of the Department of Corrections.
However, the State asserts that Grinols's claim was deficient for
other reasons. According to the State, Grinols failed to identify the
precise decision that he was attacking, and he further failed to
explain why he believed the Department's calculation was wrong.
Moreover, the State argues that Grinols failed to identify the date of
the Department's action. The State points out that, even though
section 020(a)(6) may not prohibit Grinols from attacking the
Department's calculation of his release date, Grinols's claim may be
barred by section 020(a)(4), the statute of limitations. Under this
section, Grinols had one year in which to file his attack on the
Department's decision.
The State's arguments may ultimately be persuasive,
but Judge Jahnke did not address these arguments. Instead, he relied
solely on section (a)(6) when he dismissed Grinols's petition. The
judge did not indicate that Grinols's release-date claim was being
dismissed for different reasons, nor did he address any of the State's
rationales for dismissing this claim. Accordingly, this aspect of
Judge Jahnke's ruling must be reversed, and the superior court must
reconsider this particular claim.
The second claim that may not be barred by the
doctrine of res judicata is Grinols's assertion that the superior court
and the probation officer improperly "changed the wording [of his]
judgment after it had been entered". By this, Grinols means that his
probation officer has allegedly amended the conditions of his
probation beyond the scope intended by the sentencing judge, or
beyond the scope allowed by the judge's oral sentencing remarks.
Again, this claim may conceivably be a new claim, depending on
when the allegedly improper probation conditions were imposed, and
when Grinols learned of them.
But if it is a new claim, Grinols did not have to pursue
it in a petition for post-conviction relief. Grinols can attack his
probation conditions directly, by filing a motion in his original
criminal case. If the superior court rejects his arguments, he has a
right of appeal.15 In other words, instead of rejecting Grinols's
claim under AS 12.72.020(a)(6), the superior court should have
treated Grinols's pleading as a motion to set aside the challenged
condition(s) of probation. Thus, this second aspect of Judge
Jahnke's ruling must also be reversed, and the superior court must
reconsider Grinols's claim.16
The third and final claim that may not be barred by the
doctrine of res judicata is Grinols's assertion that he was denied
effective assistance of counsel. Grinols contends that he received
ineffective assistance from all six of the attorneys who represented
him since his original criminal trial. With respect to the first five
attorneys, Grinols could have raised his claims before; even under
former law, he would be barred from raising these claims. However,
Grinols's current petition for post-conviction relief is arguably his
first opportunity to attack the competency of his sixth attorney - the
one who represented him during the litigation of his first petition for
post-conviction relief and during the ensuing appeal.
This claim is not so easily disposed of. Indeed, almost
all of what follows is addressed to Grinols's claim of ineffective
assistance of counsel.
3. Grinols's arguments based on the "suspension" clauses of the
federal and state constitutions
Both the United States Constitution and the Alaska
Constitution contain provisions that forbid the government from
suspending the writ of habeas corpus except in times of rebellion or
invasion.17 Grinols argues that the combination of Civil Rule 86(m)
and AS 12.72.020(a) effectively constitutes a suspension of habeas
corpus.
Article I, Section 9 of the federal Constitution does not
prohibit the Alaska Legislature from restricting the habeas corpus
remedy. As we recently explained in Flanigan v. State18, this
provision of the federal Constitution only limits the power of the
United States Congress.19 It does not limit the power of the states.
We also reject Grinols's argument that Article I,
Section 13 of the Alaska Constitution guarantees him the right to
attack his criminal conviction. Grinols has misconstrued the scope
of the remedy guaranteed by this provision of Alaska law. As we
explained in Flanigan, Article I, Section 13 of the Alaska
Constitution guarantees the writ of habeas corpus as it existed at
common law.20 At common law, the writ of habeas corpus could not
be used as a means of collaterally attacking a criminal judgement,
except to attack the jurisdiction of the court that issued the
judgement.21
Grinols does not attack the jurisdiction of the superior
court to entertain the criminal prosecution against him. Instead, he
asserts that his conviction resulted from unfairness in the trial
process. Article I, Section 13 of our state constitution does not
guarantee the right to bring this type of collateral attack on a criminal
conviction.
In a related argument, Grinols asserts that the habeas
corpus chapter of the Alaska Statutes - AS 12.75 - grants him the
right to collaterally attack his conviction. But the habeas corpus
remedy granted by AS 12.75 is the same limited remedy guaranteed
by Article I, Section 13 of the state constitution. The limited scope
of this remedy - in particular, the fact that a writ of habeas corpus
can not be used to collaterally attack a criminal conviction - is
expressly codified in AS 12.75.02022 and 12.75.11023.
Indeed, as we explain in the next section, the limited
scope of the common-law writ of habeas corpus is the primary
reason why Alaska and her sibling states have enacted statutes and
rules giving prisoners the right to seek post-conviction relief.
4. Grinols has no federal due process right to pursue post-
conviction relief.
(a) The development of post-conviction relief in the states: the
federal Habeas Corpus Act, and the Supreme Court's decision in
Case v. Nebraska.
The history of post-conviction relief (in its modern
form) begins in 1867. In that year, Congress enacted the federal
Habeas Corpus Act. This act granted any federal or state prisoner
the right to collaterally attack a criminal conviction on the ground
that it was obtained in violation of either the constitution or the laws
of the United States.24
As just explained, the common-law writ of habeas
corpus allowed a prisoner to attack a criminal judgement on very
narrow grounds - lack of jurisdiction. But under the Habeas
Corpus Act, a state prisoner might attack a criminal conviction by
alleging a violation of any right guaranteed by federal law. In the
1950s and 1960s, the United States Supreme Court issued a series of
decisions that expanded the procedural rights guaranteed to all
criminal defendants by the federal Constitution.25 As a result, state
prisoners began to resort frequently to the federal Habeas Corpus
Act. This posed significant problems to the administration of the
criminal justice system and to the relationship between the federal
and state governments. As the Supreme Court of Tennessee
explained in House v. State26,
At that time [i.e., in the 1950s and early 1960s], the only
means of ... collateral [attack] or post-conviction review in
Tennessee, as well as most other states, was habeas corpus,
which was and still is ... narrow in scope, and [which] allows
for relief only when the judgment is facially void or the
petitioner's term of imprisonment has expired. ... [S]tate
court defendants [were left] without redress for alleged
constitutional errors in many cases. ... Consequently, state
prisoners sought relief in federal courts via the federal habeas
corpus procedure.
. . .
The expansion of federal constitutional protection and
federal habeas corpus review, combined with the restrictive
scope of state habeas corpus and other state collateral
procedures[,] resulted in two problems. First, federal courts
were called upon to review constitutional claims not
considered by state courts. This called into question the
finality of state criminal judgments, and in turn, caused
tension between the state and the federal judiciaries. Second,
federal courts were inundated and overburdened by the influx
of habeas petitions filed by state prisoners.
To alleviate those problems, in Case v. Nebraska, 381
U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), the Supreme
Court recommended that [the] states enact statutory post-
conviction procedures to supplement habeas corpus remedies
and thereby provide state prisoners an opportunity to litigate
allegations of federal constitutional errors in state courts.
House, 911 S.W.2d at 708-09 (citations omitted).
The United States Supreme Court granted
certiorari in Case v. Nebraska to resolve the issue of whether
the due process clause of the Fourteenth Amendment
"requires that the States afford state prisoners some adequate
corrective process for the hearing and determination of claims
of violation of federal constitutional guarantees."27 When the
court granted certiorari in Case (i.e., in early 196528), a
handful of states had enacted post-conviction relief statutes,
and another handful (including Alaska) had adopted post-
conviction relief procedures by court rule.29 In addition, the
National Conference of Commissioners on Uniform State
Laws had promulgated a Uniform Post-Conviction Procedure
Act.30 But the great majority of states lacked a system of
post-conviction relief designed for the purpose of vindicating
a prisoner's constitutional rights.31
Doubtless, when the Supreme Court granted
certiorari in Case, the Court anticipated that it might
formulate minimum standards for post-conviction relief
procedures in the states. But while the Supreme Court was
considering Case, Nebraska enacted a post-conviction relief
procedure, thus mooting the issue.32
Despite the mootness of the controversy, two
members of the Court (Justices Clark and Brennan) wrote
concurring opinions in which they suggested that, because of
due process concerns, all states should enact some form of
post-conviction relief.33 There was significant response to
this call. In 1967, the American Bar Association promulgated
its Standards Relating to Post-Conviction Relief. (See
footnote 30, supra.) In addition, many state legislatures
enacted post-conviction relief remedies.34
(b) The Supreme Court's subsequent rejection of constitutionally
mandated post-conviction relief: the decisions in Pennsylvania
v. Finley and Coleman v. Thompson.
In retrospect, Justice Clark's and Justice Brennan's
concurring opinions in Case v. Nebraska can be seen as the high-
water mark of the notion that the federal due process clause requires
states to offer post-conviction relief to criminal defendants. Eleven
years after Case, the Supreme Court decided United States v.
MacCollom.35 MacCollom presented the issue of whether an
indigent applying for federal post-conviction relief is constitutionally
entitled to a transcript at public expense. In a plurality opinion
joined by three other members of the Court, Justice Rehnquist
declared that "the Due Process Clause of the Fifth Amendment ...
certainly does not establish any right to collaterally attack a final
judgment of conviction."36
After another eleven years, Justice Rehnquist garnered
a fifth vote for his position. In Pennsylvania v. Finley, the Supreme
Court rejected the argument that states are required to provide
counsel at public expense to criminal defendants seeking post-
conviction relief.37 Indeed, the Court concluded that states are not
obliged to offer post-conviction relief in the first place. The Court
declared:
Postconviction relief is even further removed from the
criminal trial than is discretionary direct review. It is not part
of the criminal proceeding itself, and it is in fact considered to
be civil in nature. It is a collateral attack that normally occurs
only after the defendant has failed to secure relief through
direct review of his conviction. States have no obligation to
provide this avenue of relief, cf. United States v. MacCollom,
and when they do so, the fundamental fairness mandated by
the Due Process Clause does not require that the State supply
a lawyer as well.
Finley, 481 U.S. at 556-57, 107 S.Ct. at 1994 (citations
omitted).
Grinols's case does not raise precisely the same
issues presented in Finley v. Pennsylvania. Finley dealt with
a defendant who was seeking to pursue a first petition for
post-conviction relief, while Grinols is attempting to pursue a
second petition. But given the Supreme Court's decision in
Finley that there is no federal constitutional right to a first
petition for post-conviction relief, it seems obvious that
Grinols has no federal right to pursue a second petition for
post-conviction relief.
(c) The issue of "layered" claims of ineffective assistance of
counsel under federal constitutional law
Finley declared that the federal Constitution does not
require the states to offer post-conviction relief. Finley also declared
that, even if a state chooses to offer post-conviction relief, there is no
right to counsel in such proceedings. That is, a state need not
provide legal counsel to indigent defendants seeking post-conviction
relief.
Four years after Finley, the Supreme Court pursued its
reasoning to the next step. In Coleman v. Thompson38, the Court
held that a defendant can not claim that they were deprived of the
effective assistance of counsel in post-conviction relief proceedings
- for "[when] there is no constitutional right to counsel[,] there can
be no deprivation of effective assistance."39 Thus, even when state
law guarantees counsel to defendants seeking post-conviction relief,
it does not matter (for federal constitutional law purposes) if the
defendant's attorney is incompetent.
The decision in Coleman would seem to shut the door
on Grinols's claim that he is entitled to relief because his post-
conviction relief attorney was ineffective. But this issue demands
fuller attention because, in Coleman, the Supreme Court hinted that
it might consider making a limited exception for situations where
state law requires defendants to pursue post-conviction relief if they
wish to attack the competence of their trial attorney.40
Although the Supreme Court did not go into a full
explanation of why this exception might be warranted, the rationale
appears to be this: The federal Constitution guarantees the effective
assistance of counsel on direct appeal. If state law allows a
defendant to attack the competence of their trial attorney on direct
appeal, then the defendant is entitled to the assistance of a competent
lawyer when pursuing this attack. But many states - including
Alaska41 - generally forbid a defendant from raising ineffective
assistance of counsel claims on direct appeal. Instead, Alaska and
these other states require a defendant to pursue post-conviction relief
litigation if they want to attack the competence of their trial attorney.
Coleman holds that there is no federal right to the effective
assistance of counsel in post-conviction relief litigation. Thus, state
procedural law effectively determines whether a defendant is entitled
to competent legal assistance when they attack the performance of
their trial attorney.
Grinols's case presents the issue that the Supreme
Court raised but declined to address in Coleman. As explained
above, under Alaska law, a defendant who alleges that their trial
counsel was ineffective must normally pursue this claim in a petition
for post-conviction relief. In Grinols's first petition for post-
conviction relief, he did pursue such a claim: he argued that he had
received ineffective assistance from the attorney who represented
him at trial. Now, in his second petition for post-conviction relief,
Grinols asserts (among many other things) that he received
ineffective assistance of counsel from his post-conviction relief
attorney - the attorney whose job it was to establish the
incompetence of Grinols's trial counsel.
In the decade since Coleman was decided, the Supreme
Court has not revisited this potential exception to the Finley -
Coleman rule. However, several federal circuits have confronted this
issue, and they have all concluded that there is no exception. That is,
these circuits have all held that a defendant has no due process right
to the effective assistance of counsel in post-conviction relief
proceedings, even when that post-conviction relief proceeding is the
defendant's first opportunity to attack the competency of their trial
attorney.42 We particularly note the series of Ninth Circuit cases on
this issue, all of them rejecting the purported exception to Finley.43
Based on our review of the federal cases, we conclude
that the due process clause of the federal Constitution does not
guarantee Grinols the right to litigate a second petition for post-
conviction relief, even when that second petition includes a
"layered" claim of ineffective assistance of counsel.
(d) Summary of federal constitutional law in this area
The federal Constitution does not guarantee a right to
post-conviction relief; the states need not provide such a remedy to
criminal defendants. If a state offers post-conviction relief, the state
need not provide counsel to indigent defendants pursuing this
remedy. And if the state does provide counsel, this counsel need not
be competent, so a defendant has no federal constitutional right to
attack the performance of their post-conviction relief attorney.
Accordingly, we hold that AS 12.72.020(a)(6) - the
statute that generally limits prisoners to one petition for post-
conviction relief - does not violate the due process clause of the
federal Constitution.
5. Grinols's right to pursue a second petition for post-conviction
relief under Alaska law
Although the federal Constitution does not require the
states to offer post-conviction relief to criminal defendants, Alaska
does offer such a remedy. AS 12.72 grants defendants the right to
pursue post-conviction relief. But, in general, this chapter of the
statutes does not allow a second petition for post-conviction relief.
Grinols has already pursued his one allotted petition for
post-conviction relief, and AS 12.72.020(a)(6) now bars him from
pursuing another. The question is whether the Alaska Constitution
guarantees Grinols the right to pursue a second petition. In other
words, does our state constitution prohibit the legislature from
limiting a defendant to one petition for post-conviction relief?
(a) The doctrine of res judicata
As explained above, the Alaska Supreme Court acted in
1968 to place a limit on successive petitions for post-conviction
relief. The court promulgated Criminal Rule 35(i), later renumbered
as Criminal Rule 35.1(h), which required defendants to bring all of
their post-conviction claims at the same time. A defendant who
wished to pursue a second petition for post-conviction relief had to
prove that the claim(s) contained in the second petition could not
have been presented in the defendant's first petition.
Alaska took this rule of compulsory joinder from
Section 8 of the 1966 version of the Uniform Post-Conviction
Procedures Act.44 As described in Section 2(a) of this opinion, the
Alaska Supreme Court applied the compulsory joinder rule in Merrill
and upheld the superior court's refusal to consider a defendant's new
post-conviction claims. However, the constitutionality of the
compulsory joinder rule was not expressly attacked in Merrill, and
no other Alaska decision since that time has directly addressed the
constitutionality of this limitation on successive petitions for post-
conviction relief. We note that in Thompson v. State, two members
of the supreme court (Justice Rabinowitz, joined by Justice Erwin)
expressed doubt concerning "the constitutionality, under either the
federal or Alaska Constitutions, of the [compulsory joinder]
requirement of Criminal Rule 35(i)".45 However, these two justices
did not elaborate their concerns.
Although Alaska courts have not directly addressed the
constitutionality of the compulsory joinder rule, case law from this
state and other states indicates that this form of res judicata is lawful.
In Brown v. State46, this court decided a closely related issue: we
held that the doctrine of res judicata applied to post-conviction relief
actions, and we specifically held that a defendant is barred from
litigating a claim that has already been decided on direct appeal.
Later, in Higgins v. Briggs, we held that "a prisoner who inexcusably
fails to appeal can not thereafter take advantage of his own neglect to
justify a collateral attack on his conviction or sentence (by arguing
that the requested collateral attack must be allowed since the right to
appeal has expired)."47
Courts from most other states hold, not only that res
judicata bars defendants from re-litigating issues that have been
previously decided, but also that this same doctrine bars defendants
from re-litigating issues that could have been raised in a prior
appeal.48 The United States Supreme Court has said the same thing.
49
We agree with these other jurisdictions that, generally
speaking, there is no fundamental unfairness in requiring defendants
to raise all of their post-conviction claims in a single proceeding -
and in barring defendants from filing later claims unless they
demonstrate that there is a good reason why they could not raise
those claims in earlier litigation. We therefore hold that, to the
extent AS 12.72.020(a)(6) bars a defendant from raising a post-
conviction relief claim that was raised or could have been raised on
direct appeal or in prior post-conviction relief litigation, this statute
is consistent with the Alaska Constitution's guarantee of due process
of law.
Although we conclude that the doctrine of res judicata
applies to post-conviction relief litigation, we acknowledge the
possibility that, under particular circumstances, strict application of
res judicata might perpetuate manifest injustice and thus violate the
guarantee of due process. The United States Supreme Court has
declared that, despite the fairly strict limitations on state prisoners'
ability to seek federal habeas corpus relief, federal courts
nevertheless retain the power to intervene to prevent clear injustice.
Even if a defendant forfeits a claim by failing to follow state
procedural rules, review of the defendant's claim would still be
permitted (if not mandated) if the defendant demonstrated that failure
to consider the claim would "result in a fundamental miscarriage of
justice"50 - as, for example, "where a constitutional violation has
probably resulted in the conviction of one who is actually innocent".
51
It would seem that the due process clause of the Alaska
Constitution requires no less. But the facts of Grinols's case do not
require us to resolve that issue. Of the many claims that Grinols
either raised before or could have raised before, none involves a
potential fundamental miscarriage of justice. We therefore conclude
that all of Grinols's claims listed in footnote 14 (that is, all but the
three claims singled out in the main text of this opinion) are barred
by res judicata.
(b) AS 12.72.020(a)(6)'s bar on successive petitions, and the
exceptions required by the due process clause of the Alaska
Constitution
We have concluded that the legislature may lawfully
prohibit a defendant from pursuing post-conviction relief litigation
based on a claim that was decided in prior litigation, or that could
have been raised on direct appeal or in a prior petition for post-
conviction relief. But AS 12.72.020(a)(6) goes farther. The statute
generally prohibits any second or subsequent petition for post-
conviction relief, even when the defendant can show that they were
unable to raise the claim earlier.
Indeed, when the legislature enacted AS 12.72.020,
they expressly repealed former Criminal Rule 35.1(h) - the rule that
already barred successive petitions for post-conviction relief unless
the defendant could show good cause for failing to raise their claim
earlier - and replaced it with a statute that absolutely bars
successive petitions for post-conviction relief. From this change, one
can infer that the legislature specifically intended to stop defendants
from pursuing a second petition for post-conviction relief even when
there concededly is a good reason why the defendant could not raise
the claim in their first petition.
There is a real possibility that such a statute may lead to
fundamental unfairness. For instance, scientists have recently
developed the ability to conduct genetic tests of body samples - to
collect and analyze what is commonly referred to as "DNA
evidence". This genetic testing theoretically provides a way to
identify one specific individual from among the population of the
world. Because of this new forensic technique, several criminal
convictions have been reversed (or the defendants pardoned) after
the physical evidence in the case was re-examined and it became
clear that the convicted defendant could not have been the culprit.52
When the Alaska legislature enacted a statute of
limitations for post-conviction attacks on a criminal conviction (see
AS 12.72.020(a)(3)), the legislature also enacted an exception for
evidence that establishes the defendant's factual innocence.
AS 12.72.020(b)(2) declares that the statute of limitations does not
bar a defendant from filing a petition for post-conviction relief based
on newly-discovered proof of the defendant's innocence, assuming
the defendant acts diligently in presenting this evidence to the court.
53
But the exception for newly-discovered evidence
codified in 020(b)(2) does not apply to AS 12.72.020(a)(6), the ban
on successive petitions for post-conviction relief. Thus, a defendant
who obtained clear genetic evidence of their innocence would be
barred from presenting this evidence to the courts if the defendant
had already sought post-conviction relief on any other ground. In
such circumstances, we believe that the Alaska Constitution's
guarantee of due process of law would require the courts to hear the
defendant's petition even though the statute seemingly prohibits it.
It is difficult to predict how often courts will be
confronted with convincing proof of a defendant's factual innocence.
Based on past experience, courts are more likely to see the kind of
claim that Grinols raises here: the claim that he received ineffective
assistance of counsel when he litigated his prior petition for post-
conviction relief. We therefore turn to the question of whether,
despite AS 12.72.020(a)(6), Grinols is entitled to litigate the
effectiveness of the attorney who represented him in a prior petition
for post-conviction relief.
(c) Claims that the defendant received ineffective assistance of
counsel in prior post-conviction relief litigation
This court has already recognized the potential injustice
of applying a rule of res judicata in situations where, because of
incompetent counsel, a defendant never had a fair opportunity to
present their claims earlier. In Bangs v. State54, we declared that a
defendant would generally be able to establish good cause for failing
to assert a claim in an earlier petition for post-conviction relief if "the
failure to assert [the] claim in a prior application resulted from
ineffective assistance of counsel."
Courts from other jurisdictions have reached the same
conclusion. For instance, in People v. Winsett, the Supreme Court of
Illinois stated that, even though "post-conviction review is limited to
constitutional matters which ... could not have been ... previously
adjudicated[,] ... [t]his court has held that [this] doctrine ... should not
bar the court from considering an issue where the [defendant's
failure to previously raise the issue] stems from incompetency of
counsel on appeal."55 Decisions from other states echo this
approach.56
One potential objection to Bangs and the cases from
our sibling states is that all of these decisions are premised on the
assumption that a defendant can expect competent counsel when
they pursue a claim for post-conviction relief. This assumption is no
longer self-evident. As explained in Section 4(c) of this opinion, the
federal Constitution does not guarantee effective assistance of
counsel to defendants in post-conviction relief litigation. More
particularly, the United States Supreme Court has ruled (1) that there
is no federal right to the assistance of counsel in post-conviction
relief litigation, and (2) even when a state grants defendants the right
to assistance of counsel in post-conviction relief litigation, this is a
matter of state law only, and there is no violation of the federal
Constitution if the defendant's lawyer turns out to be incompetent.
But although federal law does not guarantee a right to
counsel in post-conviction relief litigation, Alaska law does - at
least, for defendants who are pursuing their first petition for post-
conviction relief.57 And even though the United States Supreme
Court has declared that the incompetence of the defendant's
appointed attorney is of no concern, we agree with the Supreme
Court of California that a defendant who is represented by counsel
"has a right to assume that counsel is competent".58 As former Chief
Judge Bryner said in his concurring opinion in Hertz v. State59,
"Inasmuch as ... representation by counsel is a matter of right, there
is simply no basis for concluding that post-conviction relief
applicants should receive anything less than the full, effective
assistance of counsel". Or, as the Supreme Court of Connecticut
declared more pointedly, "it would be absurd [for a defendant] to
have the right to appointed counsel who is not required to be
competent."60
We conclude that, because Alaska law grants a
defendant the right to counsel in post-conviction relief proceedings,
defendants are entitled to expect that their attorneys will provide
competent representation.61 This means that a defendant may be
entitled to relief if they can later prove that their post-conviction
relief attorney's performance was not competent, and they must be
allowed an opportunity to present this claim in a second petition for
post-conviction relief.
We emphasize, however, that the ultimate question in
post-conviction relief litigation is not whether the defendant's post-
conviction relief attorney was incompetent. Rather, the question is
whether the trial court proceedings that resulted in the defendant's
conviction and sentence were fair and lawful.62 The incompetence
of post-conviction relief counsel is not, by itself, a ground for
granting post-conviction relief.63 The defendant must additionally
show prejudice. In this context, "prejudice" means proof that there
is, in fact, a good reason to reverse or modify the defendant's
conviction or sentence, or to grant the defendant a new trial.64
We addressed a similar issue in State v. Steffensen.65
In that post-conviction relief litigation, the defendant asserted that
his trial attorney had incompetently failed to recognize and argue a
search and seizure issue. We held that, even if this was true, the
defendant was not entitled to relief unless he proved that the
proposed suppression motion was in fact meritorious, and that there
was a reasonable possibility that suppression of the challenged
evidence would have affected the outcome of the underlying criminal
proceeding.66
Similarly, when a defendant challenges the competence
of the attorney who represented them in their first petition for post-
conviction relief, the defendant must do more than prove that their
post-conviction relief attorney failed to raise or competently argue a
colorable legal issue. The defendant must also prove four more
things:
First, the defendant must establish their own diligence
in raising the claim of ineffective representation. A defendant can
not "sit on" a claim of ineffective assistance of counsel. The
defendant must show "that the facts upon which [the defendant]
relies were not known to [the defendant] and could not in the
exercise of due diligence have been discovered by him ...
substantially earlier than the time of his [second petition]."67
(We note, but do not resolve, the related question of
whether AS 12.72.020(a)(3), the statute of limitations on post-
conviction relief actions, continues to apply even when a defendant
claims that their first post-conviction relief attorney was
incompetent. Several courts have held that, even though attorney
incompetence may provide good cause for allowing a defendant to
raise an issue that would otherwise be res judicata, attorney
incompetence does not excuse a defendant from complying with the
filing deadline set by the statute of limitations.68 In this case, the
State has not argued that Grinols's petition is time-barred. We
therefore do not address this issue further.)
Second, the defendant must establish the incompetence
of their prior post-conviction relief attorney. They must prove that
their attorney's failure to recognize the omitted issue, or the
attorney's failure to pursue it, constituted a level of representation
below the acceptable minimum of skill expected of criminal law
practitioners.69
The law presumes that attorneys are competent, and a
defendant must affirmatively rebut this presumption of competence.
70 It is the defendant's burden to negate the possibility that the
attorney chose, for valid tactical reasons, not to raise the issue, or to
argue it in a different way.71 And if the omitted issue rests on facts
within the defendant's knowledge, the defendant must show that they
apprised the attorney of the operative facts. In particular, when a
defendant asserts that their post-conviction relief attorney
inexcusably failed to pursue arguments that the defendant's trial
attorney was incompetent, this assertion will be defeated by evidence
that the defendant was aware of the possible attacks on their trial
attorney's performance when the first post-conviction relief action
was litigated but failed to mention these potential claims to their
post-conviction relief attorney.72
Third, the defendant must establish that the omitted
legal issue is, in fact, meritorious - that if the underlying issue had
been litigated, the defendant would have won. When a defendant
presents a "layered" claim of ineffective assistance of counsel (i.e.,
when the defendant claims that their post-conviction relief attorney
incompetently failed to prove the incompetence of their trial
attorney), this means that the defendant must prove the incompetence
of both attorneys.
By establishing the incompetence of the post-
conviction relief attorney, the defendant proves that they are entitled
to raise claims against the trial attorney that would normally be
barred by the doctrine of res judicata. But this alone does not win
the day for the defendant. The ultimate issue is the fairness of the
original trial court proceedings. In the context of a "layered" claim
of ineffective assistance, this means that the defendant must also
prove that their trial attorney was incompetent.73
Fourth and finally, the defendant must establish that,
with this issue resolved in the defendant's favor, there is a reasonable
possibility that the outcome of the defendant's original trial court
proceedings would have been different. Again, the ultimate issue is
the fairness of the defendant's conviction and sentence. It is not
enough for the defendant to prove that the first post-conviction relief
proceeding should have gone differently. The defendant must also
prove that the flaw in the prior post-conviction relief proceeding
prevented the defendant from establishing a demonstrable and
prejudicial flaw in the original trial court proceedings.
As this court emphasized in State v. Jones, "a mere
conclusory or speculative allegation of harm will not suffice" to
establish prejudice:
The accused must do more than present "abstractions without
context." Once the performance prong of the Risher standard
has been established, the accused must, in addition, make a
specific factual showing that counsel's incompetence had
some actual, adverse impact on the case - that is, the
accused must prove some effect of [the] challenged conduct
on the reliability of the trial process[.]
759 P.2d at 573 (citations omitted).
These, then, are the elements that a defendant
must prove when litigating a second petition for post-
conviction relief based on allegations that the defendant
received ineffective assistance of counsel during their first
post-conviction relief action. A defendant's petition will be
insufficient unless it is supported by the affidavits and other
documentation specified in Criminal Rule 35.1(d) and in State
v. Jones.74 Even when the required documentation
accompanies the petition, the defendant's evidence must
affirmatively rebut the presumption that their prior post-
conviction relief attorney was competent - and, in layered
claims of ineffective assistance, the further presumption that
their trial attorney was competent.
We have concluded that the due process clause
of the Alaska Constitution requires a limited exception to the
ban on successive petitions for post-conviction relief codified
in AS 12.72.020(a)(6). Defendants must be allowed to show
that, despite their earlier petition for post-conviction relief,
they were deprived of a fair opportunity to litigate their claims
because they did not receive competent legal representation
during the litigation of their first petition.
At the same time, we recognize the ease with
which defendants may seek to evade the restrictions on
successive post-conviction relief litigation "simply by
couching [their] claims in [terms] of ineffective assistance".75
We emphasize that defendants can not obtain a second
petition for post-conviction relief "simply by rephrasing
previously addressed issues in constitutional terms".76 A
defendant must prove that, because of the incompetence of
their post-conviction relief counsel, they were denied a fair
and meaningful opportunity to litigate their claims. The
defendant must also prove that their collateral attack on their
underlying conviction would have succeeded if those claims
had been properly litigated.
In the present case, Grinols claims that his post-
conviction relief attorney was ineffective, but his petition does
not address or present a prima facie case on all of the
elements outlined in this section of our opinion. Because we
have now clarified the law in this area, Grinols should be
given a chance to amend or supplement his petition to present
a prima facie case on all of these elements.77
6. Grinols's right to counsel in a second petition for post-conviction
relief
Grinols's appeal presents one more issue: is a
defendant entitled to the assistance of counsel when litigating a
successive petition for post-conviction relief? The answer given by
the Alaska statutes is clearly "no": a defendant's right to counsel
extends only to a first petition for post-conviction relief. According
to AS 18.85.100(c)(1), "[a]n indigent person is not entitled to [legal]
representation [at public expense] for purposes of bringing an
untimely or successive petition for post-conviction relief".
This statute is clearly constitutional under the federal
Constitution; as discussed earlier in this opinion, the United States
Supreme Court has ruled that the federal Constitution does not
guarantee the assistance of counsel in post-conviction relief
litigation. Thus, the only remaining question is whether the Alaska
Constitution calls for a different result.
More than thirty years ago, in Nichols v. State78, the
Alaska Supreme Court ruled that a defendant who seeks post-
conviction relief is entitled to the assistance of counsel, at least in the
litigation of a first petition. The court expressly declined to decide
the issue presented in Grinols's case: whether a petitioner is entitled
to the assistance of counsel in a second petition.79
Moreover, the supreme court was unable to agree on
the legal basis of the petitioner's right to counsel when litigating a
first petition. Justice Dimond (the author of the lead opinion)
concluded that an indigent petitioner's right to counsel arose from
the equal protection clause of the Alaska Constitution (Article I,
Section I) because, "[if] an indigent is forced to handle his own
[post-conviction relief] motion, the [ensuing] hearing ... does not
comport with fair procedure."80 Justice Rabinowitz, the other
member of the majority81, rejected this equal protection analysis. He
agreed that "[f]ailure to appoint counsel [for an indigent petitioner]
results in fundamental unfairness"82, but he believed that the
supreme court should use its supervisory powers to create a right to
counsel, rather than basing its ruling on constitutional grounds.83 (In
the alternative, Justice Rabinowitz suggested that the assistance of
counsel might be required by the due process clause of the Alaska
Constitution.)84
The third member of the court, Chief Justice Nesbett,
dissented. He predicted (correctly) that the United States Supreme
Court would draw a distinction between providing counsel on direct
appeal and supplying counsel to an indigent petitioner seeking to
mount a collateral attack on their conviction.85 He concluded that an
indigent petitioner had no right to counsel, although the superior
court had the authority to appoint one if "necessary to adequately
protect the petitioner's rights".86
Neither the supreme court nor this court has returned to
this issue in the ensuing 33 years. In Donnelly v. State87, the
supreme court expanded its holding in Nichols, declaring that
defendants were entitled to the assistance of counsel, not just in
litigating petitions that survived summary dismissal, but also during
the initial preparation and investigation of a post-conviction relief
case. However, the issues in Donnelly did not require the court to re-
examine or clarify the precise legal basis of the defendant's right to
counsel.
But this question has substantial importance in
Grinols's case. If, as Justice Dimond suggested, the equal protection
clause of the Alaska Constitution guarantees the assistance of
counsel in a first petition for post-conviction relief, then there is at
least some ground for arguing that a defendant should have a similar
right to counsel when litigating a subsequent petition, at least when
the defendant asserts that they were denied competent counsel during
litigation of the first petition. But if, as Justice Rabinowitz
suggested, the right to counsel recognized in Nichols and Donnelly
was based on the supervisory power of the supreme court, then that
right plainly does not exist with respect to a second petition for post-
conviction relief - because the legislature has stated that the right to
counsel applies only to a defendant's first petition, and because the
supreme court's supervisory power "must be exercised in a manner
that does not conflict with constitutional or statutory law. When the
legislature has acted[,] the courts may not exercise their
common-law power in a manner inconsistent with the legislature's
determination."88 Because AS 18.85.100(c)(1) limits the right to
counsel to a first petition for post-conviction relief, it is no longer
possible to argue that the supreme court, using its supervisory
authority, has established a right to counsel for defendants pursuing
second and successive petitions for post-conviction relief.
Turning, then, to the equal protection analysis relied on
by Justice Dimond in Nichols, we find that the law has changed
considerably since 1967, the year Nichols was decided. As
explained in Section 4(b) of this opinion, the United States Supreme
Court has rejected the notion that post-conviction relief petitioners
have a constitutionally guaranteed right to counsel - even to pursue
a first petition. We note, moreover, that even Justice Dimond
expressly declined to reach the question of whether his equal
protection analysis would guarantee counsel in a situation like
Grinols's, where a defendant is pursuing a second petition for post-
conviction relief.
The guarantee of equal protection of the law requires
that access to the courts be "free of unreasoned distinctions, and that
indigents have an adequate opportunity to present their claims fairly
within the adversary system."89 But the government does not have
to establish absolute equality between indigent defendants and their
wealthier counterparts. The equal protection clause does not require
the government to take steps to erase any advantage that money
might provide to a litigant. In the end, "[t]he question is not one of
absolutes, but one of degrees."90 As the United States Supreme
Court said in Douglas v. California, "Absolute equality is not
required; lines can be ... drawn[,] and we often sustain them."91
For example, in State v. Jones, this court recognized
that the guarantee of effective assistance of counsel does not mean
that an indigent defendant can demand that their court-appointed
attorney engage in the same exhaustive investigation and extensive
expenditures that a wealthy defendant might ask of their attorney:
[G]iven an unrestricted budget and freed of any constraints as
to probable materiality or accountability, a lawyer might ...
cheerfully log[] in many hours looking for the legal equivalent
of a needle in a haystack. ... [A] millionaire might ... retain[]
counsel to leave not a single stone unturned. However, a
defendant is not entitled to perfection[,] but to basic fairness.
In the real world, expenditure of time and effort is dependent
on a reasonable indication of materiality.
Jones, 759 P.2d at 572.92
We believe that this same principle governs
Grinols's case. Alaska law grants indigents the right to an
attorney at public expense to defend themselves at trial. If
that trial results in conviction, indigent defendants are entitled
to counsel at public expense to pursue an appeal and, if the
appellate effort proves unsuccessful, to pursue a petition for
post-conviction relief. The question in Grinols's case is
whether the equal protection clause of the Alaska Constitution
requires more.
We conclude that after all of this litigation -
after a judge or jury has returned a verdict of guilty, after an
appellate court has reviewed and affirmed the fairness of the
trial on direct appeal, after the trial court has reviewed and
rejected any post-conviction relief claims, and after an
appellate court has reviewed the post-conviction relief
proceedings - the government need not provide an attorney
to all indigent defendants seeking to pursue a second petition
for post-conviction relief. Such defendants have already
obtained repeated judicial review of the proceedings that
resulted in their criminal convictions. The equal protection
clause does not require society to finance yet another assault
on the determination of guilt.
That being said, we nevertheless conclude that
trial courts have the authority to appoint counsel for indigent
defendants in particular cases. We agree with what Chief
Justice Nesbett said in his dissenting opinion in Nichols:
Although the equal protection clause of the Alaska
Constitution does not grant "an invariable right to be provided
with counsel at state expense"93, the due process clause of our
state constitution gives courts the authority to appoint counsel
when "the circumstances of a defendant or the difficulties in
presenting a particular matter are such that fair and
meaningful hearing cannot be had without the aid of
counsel."94
With regard to Grinols's case, if Grinols amends
his petition to meet the requirements specified in Section 5(c)
of this opinion, and if the amended petition presents some
good reason to believe that Grinols did not receive competent
legal representation when he litigated his first petition for
post-conviction relief, then the superior court should consider
whether to appoint counsel to represent him.
Counsel will not be required absent a
demonstrable need. As Justice Nesbett noted, "The
possibilities for alleging legal and factual issues requiring
determination [in post-conviction relief proceedings] are
infinite."95 Many of these claims may be fairly decided based
on the pleadings or based on the outcome of a relatively
uncomplicated evidentiary hearing. But when litigation of the
defendant's claim would be unfair unless the defendant is
assisted by counsel, the Alaska Constitution's guarantee of
due process of law mandates that a court have the authority to
appoint counsel for an indigent defendant.
Conclusion
We uphold the constitutionality of Civil Rule 86(m),
the rule which states that post-conviction relief supersedes habeas
corpus as the procedural method for collaterally attacking a criminal
conviction.
With the limited exceptions explained in Sections 5(b)-
(c) of this opinion, we uphold the constitutionality of AS
12.72.020(a)(6), the statute which bars a defendant from pursuing
successive petitions for post-conviction relief.
Finally, we conclude that indigent defendants have no
constitutional right to counsel at public expense when they litigate a
second petition for post-conviction relief. We nevertheless hold that
the superior court has the authority, under the due process clause of
the Alaska Constitution, to appoint counsel for a defendant if the
court concludes that a lawyer's assistance is needed for a fair and
meaningful litigation of the defendant's claim.
Most of Grinols's claims are barred by the doctrine of
res judicata, and these claims are therefore barred under section
020(a)(6). With respect to those claims, the judgement of the
superior court is AFFIRMED.
As described in Section 2(c) of this opinion, Grinols
has raised two claims that are not barred by AS 12.72: his claim that
a newly-imposed condition of probation is illegal, and his claim that
the Department of Corrections has miscalculated his release date.
Grinols is entitled to pursue the first claim by filing a motion in his
underlying criminal case. He is entitled to pursue the second claim
in his current petition for post-conviction relief, because AS
12.72.020(c) makes an express exception for this kind of claim.
With respect to those two claims, the judgement of the superior court
is REVERSED.
Finally, the due process clause of the Alaska
Constitution requires that Grinols be allowed to seek post-conviction
relief a second time based on the claim that he received ineffective
assistance of counsel when he litigated his first petition. With regard
to this ineffective assistance claim, the superior court should allow
Grinols the opportunity to amend his petition and set forth a prima
facie case, now that we have clarified the elements that Grinols is
required to prove. With respect to this claim, the judgement of the
superior court is VACATED.
Once Grinols has filed an amended petition (or has
supplemented his current petition), the State may move for summary
dismissal of this claim if Grinols fails to set forth a prima facie case.
Either on its own motion or the motion of either party,
the superior court may consider whether to appoint counsel to
represent Grinols in this litigation.
1 See Grinols v. State, Alaska App. Memorandum Opinion No. 3163 (May 10,
1995).
2 See Grinols v. State, Alaska App. Memorandum Opinion No. 3862 (August 19,
1998).
3 702 P.2d 248, 249 n.1 (Alaska App. 1985).
4 See id.
5 Quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harvard Law Review 441, 451-52 (1963).
6 The first version of the restriction, Criminal Rule 35(i), was enacted in 1968. See
Merrill, 457 P.2d at 237-38. Twenty years later, in 1987, the supreme court recodified the
rules governing post-conviction relief, placing them in a separate Criminal Rule 35.1. The
restriction on successive petitions (which remained substantively the same) was renumbered
as Rule 35.1(h). See Supreme Court Order No. 822, effective August 1, 1987.
7 Both former Criminal Rule 35(i) and former Criminal Rule 35.1(h) were worded
identically:
Waiver of or Failure to Assert Claims. All grounds for relief available to
an applicant under this rule must be raised in his 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.
8 See Merrill, 457 P.2d at 233.
9 See id. at 239.
10 See Supreme Court Order No. 1186, issued January 23, 1995 (effective July 15th).
11 Criminal Rule 35.1(b) declares that a petition for post-conviction relief "is not a
substitute for[,] nor does it affect[,] any remedy incident to the proceedings in the trial court,
or direct review of the sentence or conviction."
12 See generally SLA 1995, ch. 79.
13 See SLA 1995, ch. 79, 39.
14 The following claims raised in Grinols's current petition would be barred under
Alaska's pre-1995 law because they were raised on direct appeal or because they either were
raised or could have been raised in Grinols's first petition for post-conviction relief:
1) the claim that his conviction was obtained "by the unconstitutional use of a statute
to interfere with a pending marriage";
2) the claim that his conviction was obtained by the government's failure to disclose
exculpatory evidence. According to Grinols's petition, all of the assertedly exculpatory
evidence was known to Grinols at his trial or during the litigation of his first petition for post-
conviction relief;
3) the claim that his conviction was obtained through the denial of Grinols's right to
confront the evidence against him;
4) the claim that he was denied his right to speedy trial under Criminal Rule 45;
5) the claim that his conviction was obtained in contravention of the Treaties of 1818
and 1846 between the United States and the British Empire (the predecessor in interest to
Canada), resolving the borders of the Oregon Territory;
6) the claim that his conviction was obtained in violation of his right against self-
incrimination;
7) the claim that the sentencing judge acted illegally when he ordered Grinols to
participate in counseling and when he prohibited Grinols from having contact with females
under the age of 16;
8) the claim that both the grand jury and petit jury were unconstitutionally selected
and impaneled; and
9) the claim that his conviction was obtained through various violations of his rights
to due process and equal protection, and through the abuse of power, judicial discretion, and
court process.
In addition, Grinols raises a new claim on appeal: that the judge who presided over
his trial was unfair. This claim is not preserved because it was never presented to the
superior court.
15 See, e.g., Reyes v. State, 978 P.2d 635, 639-641 (Alaska App. 1999), and
Christensen v. State, 844 P.2d 557, 557-58 (Alaska App. 1993) (both appeals involving
challenges to conditions of probation that were added or amended after the initial
pronouncement of sentence, making the defendants' sentences more onerous).
16 Conceivably, Grinols is raising this claim in a post-conviction relief action because
he previously litigated the issue to the superior court, lost, and then failed to appeal. If so, his
claim is barred by AS 12.72.020(a)(2) and/or the rule of Higgins v. Briggs, 876 P.2d 539, 543
(Alaska App. 1994) - the rule that a defendant who inexcusably fails to appeal can not
thereafter raise the issue in a petition for post-conviction relief (arguing that collateral attack
must be allowed since the right to appeal has expired). If these doctrines are pertinent to the
facts of Grinols's case, the superior court can address this issue on remand.
17 See Article I, Section 9 of the United States Constitution and Article I, Section 13
of the Alaska Constitution.
18 3 P.3d 372 (Alaska App. 2000).
19 See id. at 374 (main opinion) and at 377 (concurring opinion). See also Gasquet v.
Lapeyre, 242 U.S. 367, 369; 37 S.Ct. 165, 166 (1917).
20 See id., 3 P.3d at 376 (main opinion) and at 378-79, 381 (concurring opinion).
21 See id.
22 "A person properly imprisoned ... by virtue of a legal judgment [issued by] a
competent tribunal [having] civil or criminal jurisdiction ... shall not be allowed to prosecute
the writ."
23 "No court or judge, on the return of a writ of habeas corpus, may inquire into the
legality or justice of any order, judgment, or [court] process [produced as justification for
the petitioner's imprisonment or detention]."
24 See Wayne R. LaFave and Jerold H. Israel, Criminal Procedure (1984), 27.2(b),
Vol. 3, pp. 292-96. See also United States v. Hayman, 342 U.S. 205, 210-11; 72 S.Ct. 263,
268; 96 L.Ed. 232 (1952); Johnson v. Zerbst, 304 U.S. 458, 465-67; 58 S.Ct. 1019, 1023-24;
82 L.Ed. 1461 (1938).
25 As an indication of the breadth of the change worked by the Supreme Court during
these years, consider the following excerpt from Professor G. Kenneth Reiblich's Summary
of the October 1964 Term, written as a preface to Volume 85 of the Supreme Court Reporter
(85 S.Ct., introductory pages 137-38):
[T]he Court: (1) for the first time ruled clearly that the right of confronta-
tion protected by the Sixth Amendment ... is incorporated into the Fourteenth
Amendment's due process protections against state action, ... (2) ruled that the
Fifth Amendment's self-incrimination privilege, ... part of the Fourteenth
Amendment's protection against state action, carries with it the same standards
as are applicable in the federal courts ... ; (3) condemned Connecticut's anti-
contraceptive statute as violative of the right to marital privacy, in support of
which [ruling] no less than six amendments were cited by the several opinions
... ; [and] (4) held that televising of a notorious criminal trial violates due
process of law ... .
Despite Mr. Justice Harlan's protests to the contrary (at times joined by
Justices Clark, Stewart and White)[,] the Court has continued its process of
incorporation of Bill of Rights guarantees into Fourteenth Amendment due
process to where the list now includes: (1) the basic freedoms of the First
Amendment (and, under Griswold v. Connecticut ... , unenumerated basic
liberties); (2) the Fourth Amendment's unreasonable search and seizure
provisions with its accompanying exclusion of illegally seized evidence;
(3) the Fifth Amendment's self-incrimination and eminent domain protections
(but not including yet the indictment by grand jury or double-jeopardy
provisions); (4) the Sixth Amendment's rights to speedy and public trial, by an
impartial jury, notice, confrontation, and assistance of counsel; (5) the Eighth
Amendment's protection against cruel and unusual punishment (and possibly,
although not clearly, the right to bail); and (6) again under Griswold, supra,
radiations from the Ninth Amendment.
26 911 S.W.2d 705 (Tenn. 1995).
27 Case v. Nebraska, 381 U.S. at 337, 85 S.Ct. at 1487.
28 See order granting certiorari, 379 U.S. 958, 85 S.Ct. 672.
29 See Case, 381 U.S. at 338 & n.3, 85 S.Ct. at 1488 & n.3 (concurring opinion of
Justice Clark).
30 See American Bar Association Project on Minimum Standards for Criminal
Justice, "Standards Relating to Post-Conviction Remedies" (Tentative Draft, January 1967),
p. 2.
31 See id.
32 See id.
33 See id., 381 U.S. at 339-340, 85 S.Ct. at 1488-89 (Justice Clark, concurring); 381
U.S. at 344-47, 85 S.Ct. at 1491-93 (Justice Brennan, concurring).
34 See, e.g., House v. State, 911 S.W.2d at 709-710.
35 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976).
36 MacCollom, 426 U.S. at 323, 96 S.Ct. at 2090.
37 481 U.S. 551, 555; 107 S.Ct. 1990, 1993; 95 L.Ed.2d 539 (1987).
38 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
39 Coleman, 501 U.S. at 752, 111 S.Ct. at 2566.
40 See Coleman, 501 U.S. at 755, 111 S.Ct. at 2567-68.
41 See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984); see also Criminal
Rule 11(h)(3) (a defendant seeking to withdraw a guilty plea after sentencing, based on a
claim of ineffective assistance of counsel, must pursue this claim as a petition for post-
conviction relief under AS 12.72).
42 See Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir. 1997), cert. denied 522 U.S.
1100, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998); Hill v. Jones, 81 F.3d 1015, 1024-26 (11th Cir.
1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997); Nolan v.
Armontrout, 973 F.2d 615, 616-17 (8th Cir. 1992).
43 See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), cert. denied, 526 U.S.
1123, 119 S.Ct. 1779, 143 L.Ed.2d 806 (1999); Nevius v. Sumner, 105 F.3d 453, 459-460
(9th Cir. 1996), cert. denied, 527 U.S. 1006, 119 S.Ct. 2344, 144 L.Ed.2d 241 (1999); Moran
v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996), Bonin v. Calderon, 77 F.3d 1155, 1159-60
(9th Cir. 1996), cert. denied, 516 U.S. 1143, 116 S.Ct. 980, 133 L.Ed.2d 899 (1996).
44 See Merrill v. State, 457 P.2d 231, 237 (Alaska 1969). A similar provision is
found in 12(b)(1) of the current (1980) version of the Uniform Act.
45 496 P.2d 651, 657 (Alaska 1972).
46 803 P.2d 887, 888-89 (Alaska App. 1990).
47 876 P.2d 539, 543 (Alaska App. 1994).
48 See, for example, People v. Winsett, 606 N.E.2d 1186, 1193 (Ill. 1993), cert.
denied, 510 U.S. 831, 114 S.Ct. 102, 126 L.Ed.2d 68 (1993); Baird v. State, 688 N.E.2d 911,
915 (Ind. 1998), cert. denied, 525 U.S. 849, 119 S.Ct. 112, 142 L.Ed.2d 99 (1998); In the
Matter of Novaok, 572 N.W.2d 840, 842 (S.D. 1998); Evans v. State, 892 P.2d 796, 797
(Wyo. 1995); Retherford v. State, 749 So.2d 269, 273 (Miss. App. 1999); Patton v. State, 989
P.2d 983, 985-86 (Okla. Crim. App. 1999), cert. denied, 120 S.Ct. 347, 145 L.Ed.2d 271
(1999); State v. Scudder, 722 N.E.2d 1054, 1057 (Ohio App. 1998); Billings v. Maass, 738
P.2d 222, 223 (Or. App. 1987). But cf. James L. v. Commissioner of Correction, 712 A.2d
947, 953 n.11 (Conn. 1998); Brooks v. Board of Pardons and Paroles, 644 So.2d 481, 482
(Ala. Crim. App. 1994) (holding that the doctrine of res judicata does not strictly apply to
habeas corpus proceedings; thus, a court has the authority, but is not obliged, to dismiss a
habeas petition that raises issues that have already been decided).
49 See Stone v. Powell, 428 U.S. 465, 478 n.10; 96 S.Ct. 3037, 3044 n.10; 49
L.Ed.2d 1067 (1976) ("[N]onconstitutional claims that could have been raised on appeal, but
were not, may not be asserted in collateral proceedings."); Sunal v. Large, 332 U.S. 174, 182;
67 S.Ct. 1588, 1593; 91 L.Ed. 1982 (1947) (absent extraordinary circumstances, the remedy
of habeas corpus is not available to defendants "who accept the judgment of [the trial court]
and do not appeal").
50 Coleman v. Thompson, 501 U.S. 722, 750; 111 S.Ct. 2546, 2564; 115 L.Ed.2d 640
(1991).
51 Murray v. Carrier, 477 U.S. 478, 496; 106 S.Ct. 2639, 2649; 91 L.Ed.2d 397
(1986).
52 A recent instance of this type of delayed justice was reported in the Anchorage
Daily News of August 12, 2000, page A-5.
In 1983, a man named Larry Youngblood was arrested in Arizona for kidnapping
and sexually abusing a young boy. The boy identified Youngblood from a photo lineup as
the man who attacked him. Youngblood insisted that the boy had mistakenly identified him,
but he was convicted.
On appeal, Youngblood claimed that he had been denied due process of law
because the police had not thought to refrigerate the victim's underwear and t-shirt so that the
semen stains on this clothing could be subjected to the types of serological testing available
at that time. The Arizona Court of Appeals concluded that this negligent handling of the
evidence constituted a denial of due process, and they reversed Youngblood's conviction.
See Youngblood v. State, 734 P.2d 592 (Ariz. App. 1986). But the State of Arizona pursued
Youngblood's case to the United States Supreme Court, and the Supreme Court reinstated
Youngblood's conviction. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102
L.Ed.2d 281 (1988), the Supreme Court held that even when the police negligently fail to
preserve evidence, there is no violation of due process. Rather, the Court decided, due
process is violated only when the police act in bad faith - when they intentionally destroy or
fail to preserve evidence that they believe may be exculpatory. Id., 488 U.S. at 57-58, 109
S.Ct. at 337.
Recently, the physical evidence from Youngblood's case was re-examined using DNA
testing. The DNA tests conclusively established that Youngblood was not the boy's attacker.
A spokesman from the Tucson Police Department crime lab told the media that there was
"no uncertainty" in the test results. After spending 17 years in prison for crimes he did not
commit, Youngblood is now free.
Another similar case was reported two weeks later. The Anchorage Daily News of
August 26, 2000, carried a photograph on page A-5 of a man who was smiling and holding a
legal document in his hand. The caption read: "William Gregory exults as he leaves [the]
Jefferson Circuit Court in Louisville [Kentucky] ... carrying a judge's order dismissing all
charges against him. Gregory, who spent eight years in prison convicted of raping two
women, became the first person in Kentucky to be exonerated based on DNA evidence."
And again, on the day that the draft of this opinion was submitted for final approval,
the Anchorage Daily News reported that the governor of Virginia had granted a full pardon to
Earl Washington, Jr., a mentally retarded man who spent a decade on death row for the 1982
rape and murder of a 19-year-old girl. Washington had confessed to the rape and murder; he
later recanted his confession, but he was convicted and sentenced to death. Washington was
exonerated after DNA testing showed that the semen taken from the victim's body did not
match his DNA, and that semen taken from a blanket at the crime scene matched the DNA of
another convicted rapist. See the Anchorage Daily News of October 3, 2000, page A-4,
"DNA tests clear inmate in rape, murder".
53 AS 12.72.020(b)(2) states that "[n]otwithstanding (a)(3) ... of this section, a court
may hear a claim based on newly discovered evidence if the applicant establishes due
diligence in presenting the claim and [presents admissible] evidence [that] establishes by
clear and convincing evidence that the applicant is innocent."
54 911 P.2d 1067, 1068 (Alaska App. 1996).
55 606 N.E.2d 1186, 1193 (Ill. 1993).
56 See Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998) (the incompetence of
prior post-conviction relief counsel may constitute a sufficient reason for the defendant's
failure to raise a claim in the earlier petition); Petition of Hans, 958 P.2d 1175 (Mont. 1998)
(when the defendant's appellate counsel incompetently abandoned his appeal, the defendant
should be allowed to pursue a petition for post-conviction relief and raise claims that would
otherwise be barred because they could have been raised on appeal); Washington v. State,
478 S.E.2d 833, 835 (S.C. 1996) (the rules barring successive petitions for post-conviction
relief mus be relaxed when the defendant did not receive due process during the prior post-
conviction litigation); Hernandez v. State, 992 P.2d 789, 793 (Idaho App. 1999) (the
incompetence of the lawyer who represented the defendant in a prior action for post-
conviction relief is sufficient reason to allow the defendant to pursue a second petition for
relief); Gooch v. State, 717 So.2d 50 (Ala. Crim. App. 1997) (a defendant should normally be
allowed to pursue a second petition for post-conviction relief based on the claim that his trial
attorney was ineffective if this is the first petition filed by an attorney other than the trial
attorney); and State v. Pocius, 660 N.E.2d 1236, 1238 (Ohio App. 1995) (res judicata would
not bar the defendant from claiming that his trial attorney was incompetent if this petition for
post-conviction relief was the first litigation filed by an attorney other than the trial attorney).
57 See AS 18.85.100(c). See also Donnelly v. State, 516 P.2d 396 (Alaska 1973);
Nichols v. State, 425 P.2d 247 (Alaska 1967). But cf. Nichols, 425 P.2d at 255 (expressly
declining to decide the question of whether a defendant is entitled to counsel in a second or
subsequent petition for post-conviction relief).
58 In re Clark, 855 P.2d 729, 748 (Cal. 1993).
59 755 P.2d 406, 410 (Alaska App. 1988).
60 Iovieno v. Commissioner of Correction, 699 A.2d 1003, 1010 (Conn. 1997)
(quotation omitted).
61 See Clark and Iovieno, supra. Accord, Commonwealth v. Pursell, 724 A.2d 293,
302-03 (Pa. 1999).
62 See AS 12.72.010(1) - (9). "The purpose of the post-conviction relief proceeding
is to permit inquiry into the constitutional issues involved in the 'original' proceeding."
People v. Flores, 606 N.E.2d 1078, 1084 (Ill. 1992) (citation omitted).
63 See In re People v. Szabo, 708 N.E.2d 1096, 1100 (Ill. 1998); House v. State, 911
S.W.2d 705, 712 (Tenn. 1995); Clark, 855 P.2d 729, 748-49 (Cal. 1993).
64 See Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999); Whitsel v. State, 525
N.W.2d 860, 864-65 (Iowa 1994); Clark, 855 P.2d at 749.
65 902 P.2d 340 (Alaska App. 1995).
66 See id. at 343.
67 In re Clark, 855 P.2d 729, 744 (Cal. 1993). Accord, Commonwealth v. Pursell,
749 A.2d 911, 916-17 (Pa. 2000); McCracken v. State, 946 P.2d 672, 675 (Okla. Crim. App.
1997); Meredith v. State, 638 N.E.2d 814, 815 (Ill. App. 1994).
68 See Johnson v. Ellingsworth, 783 F.Supp. 215, 220 (D. Del. 1992); Pursell, 749
A.2d at 916-17; Dible v. State, 557 N.W.2d 881, 883 (Iowa 1996); Whitsel v. State, 525
N.W.2d 860, 864-64 (Iowa 1994).
69 See Risher v. State, 523 P.2d 421, 424 (Alaska 1974); State v. Jones, 759 P.2d 558,
567 (Alaska App. 1988).
70 Jones, 759 P.2d at 569, citing Strickland v. Washington, 466 U.S. 668, 689; 104
S.Ct. 2052, 2065; 80 L.Ed.2d 674 (1984).
71 See Jones, 759 P.2d at 569-570.
72 See Pizzuto v. State, 903 P.2d 58, 61 (Idaho 1995); Wilkins v. State, 522 N.W.2d
822, 824 (Iowa 1994).
73 A similar analysis applies when the defendant claims that their first post-
conviction relief attorney incompetently failed to demonstrate the incompetence of the lawyer
who handled the defendant's direct appeal.
74 See Jones, 759 P.2d at 566-67, 570, 573-74.
75 People v. Flores, 606 N.E.2d 1078, 1084 (Ill. 1993).
76 Id. (quotations omitted).
77 See State v. Steffensen, 837 P.2d 1123, 1128 (Alaska App. 1992); State v. Jones,
759 P.2d at 575.
78 425 P.2d 247 (Alaska 1967).
79 See id. at 255.
80 See id. at 254.
81 In 1967, when Nichols was decided, the supreme court had only three members.
82 Id. at 256.
83 See id.
84 See id.
85 See id. at 254-55.
86 Id. at 258; see also id. at 257.
87 516 P.2d 396 (Alaska 1973).
88 Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998).
89 Ross v. Moffitt, 417 U.S. 600, 612; 94 S.Ct. 2437, 2444-45; 41 L.Ed.2d 341 (1974)
(quotation omitted).
90 Moffitt, 417 U.S. at 612, 94 S.Ct. at 2445.
91 372 U.S. 353, 357; 83 S.Ct. 814, 816; 9 L.Ed.2d 811, 814 (1963).
92 Quoting United States v. DeCoster, 624 F.2d 196, 211 (D.C. Cir. 1976) (en banc).
93 Nichols, 425 P.2d at 256.
94 Id. at 257.
95 Id. at 258.
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