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Howarth v. State (11/24/00) ap-1708
Howarth v. State (11/24/00) ap-1708
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
WILLIAM A. HOWARTH, SR., )
) Court of Appeals No. A-7331
Appellant, ) Trial Court No. 2KB-98-060 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1708 November 24, 2000]
)
Appeal from the Superior Court, Second Judicial
District, Kotzebue, Ben Esch, Judge.
Appearances: William A. Howarth, Sr., in
propria persona, for Appellant. Douglas H.
Kossler, 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 this case, a pro se defendant filed a petition for
post-conviction relief. The superior court appointed an attorney
to represent the defendant. The court also notified the parties
that it intended to dismiss the defendant's petition for failure to
state a claim. The court set a deadline for the defendant to file
an amended petition to correct the deficiencies. The defendant's
attorney allowed this deadline to expire without taking action. In
the meantime, the court received several pleadings and letters from
the defendant personally, all complaining that the attorney was
neglecting the defendant's case.
The superior court dismissed the defendant's petition
because no amended petition was filed within the deadline. We hold
that, given the clear indications of attorney neglect, the superior
court abused its discretion in dismissing the petition without
investigating and resolving the issue of whether the defendant was
receiving effective assistance of counsel.
Procedural history of this case
William A. Howarth, Sr., was convicted of second-degree
murder in 1995; this court affirmed his conviction and sentence.
[Fn. 1] In September 1997, Howarth filed a petition for post-
conviction relief. Because of various administrative mishaps, the
superior court did not order the State to respond to Howarth's
petition until one year later. At the same time, the superior court
appointed attorney Michael Smith to represent Howarth.
In late November 1998, the State moved to dismiss
Howarth's petition on a combination of procedural grounds: the
State argued that some of Howarth's claims were barred and that the
rest did not establish a prima facie case for relief.
On January 12, 1999, Superior Court Judge Ben Esch
notified Howarth that he proposed to dismiss the petition for post-
conviction relief unless Howarth filed an amended or supplemental
petition that answered the State's objections or that corrected the
defects noted by the State. Howarth was given 30 days to amend his
petition.
Six days later (on January 18th), Howarth's attorney,
Smith, asked Judge Esch for an extension of this 30-day deadline.
Smith explained that he had been having a hard time maintaining
contact with Howarth (who had been transferred to a prison in
Arizona). He told the court that Howarth's phone calls to him "[had]
not been successful" and that "[n]o letters [had] been exchanged by
counsel [and Howarth] since his removal to Arizona." Smith asked
for an additional 45 days (over and above the 30 days already
granted). Judge Esch granted this request.
In the meantime, Howarth filed his own pro se motion to
extend the time for responding to the court's proposed dismissal.
Howarth told Judge Esch that his court-appointed counsel "ha[d] not
informed him of any of the proceeding[s] in [his] case, nor ha[d]
he answered his requests for information." Howarth attached a five-
page affidavit explaining that he believed he was not receiving
effective assistance from Smith, and detailing his attempts to
communicate with Smith.
Howarth conceded that he had received several letters from
Smith requesting information on Howarth's proposed claims, but
Howarth asserted that he had responded fully to these letters.
Howarth claimed that he had not received any legal materials from
Smith. Based on the content of Smith's letters and other
communications, Howarth concluded that Smith had not reviewed his
post-conviction relief application, and that Smith's "lack of effort"
effectively left Howarth without the assistance of counsel.
At approximately the same time (January 7, 1999), Howarth
sent a letter to Tom Mize, the area court administrator for the
Fourth Judicial District, requesting that Mize assist him in
contacting Smith. Howarth told Mize that he had telephoned Smith
"a number of times" and that, each time, he was unable to speak with
him because Smith was out of the office. Howarth also claimed to
have asked Smith (unsuccessfully) to send him a copy of the amended
petition that Smith assumedly was drafting.
Mize forwarded Howarth's letter to the superior court, and
Judge Esch then forwarded a copy of the letter to Smith. The judge
asked Smith to inform him if the issues raised in Howarth's letter
had not been resolved.
On February 11th, Howarth filed a lengthy pro se motion
requesting the superior court to take judicial notice of various
facts and legal doctrines relating to Howarth's petition for post-
conviction relief. On February 18th, Howarth (acting pro se) filed
an amended petition. And, on March 8th, Howarth filed another
addendum to his petition.
The State refused to respond to any of these pleadings.
The State argued that Howarth was represented by counsel, and
therefore he had no right to file documents on his own behalf.
On March 30th, the State alerted the court that the extra
45 days requested by Smith had expired. The State noted that Smith
had failed to file an amended petition or any other response to the
court's notice of proposed dismissal. The State conceded that
Howarth himself had filed several additional documents, but the
State reiterated its position that, because Howarth was represented
by counsel, his pro se filings should be ignored.
On April 2, 1999, Judge Esch dismissed Howarth's petition
for post-conviction relief. Judge Esch noted that Howarth's
attorney had never responded to the proposed dismissal. Apparently
rejecting the State's position on Howarth's pro se pleadings, Judge
Esch referred to the pro se pleadings and expressed a willingness
to rely on their contents. The judge concluded, however, that none
of Howarth's pro se pleadings addressed the deficiencies that the
court had earlier noted when it announced its intention to dismiss
Howarth's petition. [Fn. 2] Judge Esch then stated: "Since
[Howarth's] appointed counsel has not responded by the March 15,
1999 deadline, the court must assume that the defects in the
application previously noted cannot be corrected[.]"
On April 12th, Howarth (again acting pro se) asked Judge
Esch to reconsider his decision. Howarth told the court that it was
"obvious" that he had received ineffective assistance of counsel from
Smith that Smith had made no effort to represent him. Howarth
asked the court to rescind its dismissal and to appoint new counsel
to represent him. The State responded by again arguing that Howarth
should be required to bring any and all motions through his court-
appointed attorney.
One week later, on April 20, 1999, Judge Esch denied
Howarth's motion for reconsideration. Rather than directly
addressing Howarth's claim that Smith had failed to represent him,
Judge Esch ruled that Howarth's petition was properly dismissed
because the petition was based on allegations that Howarth's trial
attorney had been ineffective and because the petition failed to
include an affidavit from Howarth's trial attorney.
Judge Esch correctly noted that, under Alaska law, a
defendant who fails to provide an affidavit from their trial
attorney (or explain why one can not be obtained) generally can not
overcome the presumption that the trial attorney was competent. The
judge then suggested that even if Smith failed to represent Howarth
effectively in the post-conviction relief litigation, this error was
harmless because, in the absence of the trial attorney's affidavit,
Howarth's application would still have been denied for failure to
state a prima facie case. [Fn. 3]
Why we conclude that Howarth's petition should not have
been dismissed
In its brief to this court, the State concedes that the
superior court should not have dismissed Howarth's petition. The
State points out that, under Criminal Rule 35.1(e)(2), an attorney
who is appointed to represent an indigent petitioner in a post-
conviction relief action has 60 days to do one of three things: (1)
inform the court that the petitioner will proceed on the claims
raised in the original (usually pro se) petition; (2) file a
pleading that amends or clarifies the claims to be litigated; or (3)
notify the court that, after diligent review of the petitioner's
claims, the attorney has concluded that none of them appear to have
merit. Howarth's attorney, Smith, failed to do any of these things,
either within the 60 days granted by the rule or within the extended
period of time later granted by the superior court. The State
contends that, because Rule 35.1(e)(2) was never satisfied, the
superior court was not authorized to dismiss Howarth's case.
We agree with the State that the superior court should not
have dismissed Howarth's petition, but we are hesitant to fully
adopt the State's position that a trial court is powerless to
dismiss a petition for post-conviction relief until the petitioner's
attorney complies with Rule 35.1(d). We believe that a court might
properly dismiss a petition for post-conviction relief if both the
petitioner and the petitioner's attorney obstinately refuse to
comply with Rule 35.1(d). Nevertheless, we agree with the State
that, under the facts of this case, the superior court should have
demanded a response from Smith rather than dismissing Howarth's
petition.
Howarth is pursuing his first petition for post-conviction
relief. Under Alaska law, he has a right to competent legal
representation in this litigation. [Fn. 4] There is reason to
believe that Howarth has not received adequate representation.
When Judge Esch gave notice that he intended to dismiss
Howarth's petition for failure to state a claim on which relief
could be granted, Howarth's attorney, Smith, asked for additional
time to supplement or amend Howarth's petition. But after this
extra time was granted, the court never heard from Smith again. In
the meantime, Howarth repeatedly communicated with the court (and
with the court system). Howarth complained that he could not get
Smith to work on his case, he asked for another attorney, and he
filed pro se pleadings (which the State repeatedly asked the
superior court to disregard, since Howarth was represented by an
attorney).
In these circumstances, Judge Esch should not have
construed Smith's silence as an implicit concession that Howarth's
petition had no merit and should be dismissed. Instead, the judge
should have required Smith to explain why he had failed to respond
in any fashion to the court's notice of intended dismissal. In
addition, we believe Judge Esch should have required Smith to
provide an answer to Howarth's accusation that he was neglecting the
case.
Judge Esch may be correct that Howarth's petition, even
as supplemented by Howarth's pro se pleadings, fails to comply with
procedural requirements and/or fails to state a claim on which
relief can be granted. But as things currently stand, that is
beside the point. Howarth is entitled to the effective assistance
of counsel in amending or supplementing the petition. The facts of
this case suggest that Howarth has not received the legal assistance
to which he is entitled. The superior court should not dismiss
Howarth's petition until that suggestion is dispelled or, if it
is not dispelled, until a new attorney is appointed and has a
meaningful opportunity to aid Howarth in reformulating his petition
for post-conviction relief.
The judgement of the superior court is REVERSED. We
remand Howarth's case to the superior court for further proceedings
in accordance with this opinion.
FOOTNOTES
Footnote 1:
See Howarth v. State, Alaska App. Memorandum Opinion No. 3724
(December 17, 1997).
Footnote 2:
Judge Esch appears to have overlooked Howarth's January 28
letter.
Footnote 3:
See Criminal Rule 35.1(d).
Footnote 4:
See AS 18.85.100(c); Grinols v. State, Alaska App. Opinion No.
1694 (October 13, 2000), p. 34.
