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Griffin v. State (2/9/01) ap-1720
Griffin v. State (2/9/01) ap-1720
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
GEORGE KEVIN GRIFFIN, )
) Court of Appeals No. A-7291
Appellant, ) Trial Court Nos. 3AN-97-4221 CI
) 3AN-93-7373 CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1720 - February 9, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Dan A. Hensley, Judge.
Appearances: Dan S. Bair, Law Offices of Dan S.
Bair, Anchorage, for Appellant. W. H. Hawley,
Jr., 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.
COATS, Chief Judge.
Every person convicted of a crime in Alaska has the right
to apply for post-conviction relief. [Fn. 1] If the person is
indigent, the person is entitled to court-appointed counsel to help
investigate and litigate the post-conviction relief application.
[Fn. 2] But the Alaska Legislature enacted Criminal Rule 35.1(e)(2)
to curb the litigation of frivolous post-conviction relief
applications at public expense.
Under Rule 35.1(e)(2), an attorney who is appointed to
represent an indigent petitioner for post-conviction relief has
sixty days to do one of three things: (1) notify the court and the
prosecuting attorney that the litigation will go forward based on
the grounds alleged in the pro se application already filed by the
petitioner; (2) file an amended petition containing the allegations
that the attorney is prepared to pursue; or (3) file a certificate
stating that there is no arguable merit to the litigation.
The contents of this "no-merit" certificate are prescribed
in subsection (e)(2)(B) of the rule. According to subsection
(e)(2)(B), the certificate must state that the attorney:
(i) does not have a conflict of interest;
(ii) has completed a review of the facts
and law in the underlying proceeding or action challenged in the
application;
(iii) has consulted with the applicant
and, if appropriate, with trial counsel; and
(iv) has determined that the application
does not allege a colorable claim for relief.
Griffin is an indigent defendant whose application for
post-conviction relief was dismissed after his court-appointed
attorney filed such a no-merit certificate. In this appeal, Griffin
argues that the procedure prescribed by Criminal Rule 35.1(e)(2)(B)
is not adequate to ensure that an indigent petitioner for post-
conviction relief receives effective assistance of counsel. He
argues that we should enforce the rule announced in Hertz v. State the rule that an attorney representing an indigent petitioner for
post-conviction relief should never be allowed to withdraw, but
should be required to pursue the petition even if the attorney has
concluded that it is frivolous.
For the reasons explained here, we hold that the
procedures established in Criminal Rule 35.1(e) and (f) supersede
the Hertz rule. However, we also conclude that a certificate filed
under Rule 35.1(e)(2)(B) must contain a detailed explanation of why
the attorney has concluded that the petitioner has no colorable
grounds for post-conviction relief.
The federal approach to this problem in the
context of publicly funded counsel on direct appeal: Anders v.
California and Smith v. Robbins
In a series of cases beginning with Anders v. California
[Fn. 3] and currently ending with Smith v. Robbins, [Fn. 4] the
United States Supreme Court has held that an indigent person's right
to the effective assistance of counsel on direct appeal is not
adequately protected when state law allows an attorney to withdraw
from the case based solely on the attorney's unelaborated
declaration that the appeal has no merit.
The Supreme Court acknowledged the states' legitimate
interest in "project[ing] . . . [themselves] so that frivolous
appeals are not subsidized . . . [by] public moneys." [Fn.
5] Accordingly, "an indigent whose appeal is frivolous has no right
to have a[] [publicly-funded] advocate" pursue the appeal through
the state appellate courts. [Fn. 6] But the Supreme Court declared
that, before an appeal can properly be labeled "frivolous," the
indigent litigant must, "in all cases, . . . [be accorded] the right
to have an attorney, zealous for the indigent's interests, evaluate
his case and attempt to discern [any] nonfrivolous arguments." [Fn.
7]
The problem, then, is to determine how the courts can
discharge their constitutional duty to distinguish frivolous appeals
from those that have colorable merit so that indigents in fact
receive the effective assistance of counsel to aid them in
presenting all non-frivolous appeals.
In Anders, the Supreme Court struck down a California
procedure that allowed the indigent's attorney "to withdraw upon
filing a conclusory letter stating that the appeal had 'no merit'
and [that] permitted the appellate court to affirm the [indigent's]
conviction . . . [if,] following . . . [its own] review of the
record," the appellate court reached the same conclusion. [Fn. 8]
In place of this procedure, the Supreme Court suggested a substitute
procedure that would satisfy the Constitution's command:
[The attorney's request to withdraw]
must . . . be accompanied by a brief referring
to anything in the record that might arguably support the appeal.
A copy of counsel's brief should be furnished [to] the indigent and
time [should be] allowed [for] him to raise any points that he
chooses; the court not counsel then proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. [Fn. 9]
It is now clear that the Supreme Court did not intend the
precise details of the Anders procedure to be binding on the states.
[Fn. 10] Rather, as the Court recently clarified, "the Anders
procedure is merely one method of satisfying the requirements of the
Constitution for indigent criminal appeals. States may . . . craft
procedures that . . . are superior to, or at least as good as, that
in Anders. The Constitution erects no barrier to their doing so."
[Fn. 11]
What, then, is the minimum that the federal Constitution
requires? In Robbins, the Court stated that a state's procedure
must "afford adequate and effective appellate review to indigent
defendants" [Fn. 12] meaning that the procedure must "reasonably
ensure[] that an indigent's appeal will be resolved in a way that
is related to the merit of that appeal." [Fn. 13]
The Court then suggested that the state procedure should
require a two-tier review of the indigent's case: both the attorney
and the court being obliged to determine whether the appeal is
frivolous. [Fn. 14] Because an indigent litigant can be deprived
of appointed appellate counsel only if the appeal is truly
frivolous, the Court was careful to distinguish between (1) the
conclusion that an appeal has "no merit," in the sense that an
appellate court will likely rule against the claims raised in the
appeal, and (2) the conclusion that an appeal is "frivolous" i.e.,
that no reasonable argument can be made in favor of the appeal. [Fn.
15] Moreover, the Supreme Court cautioned that an appellate court
must not grant the attorney's motion to withdraw until the court has
independently assessed the case and likewise reached the conclusion
that the appeal is frivolous. [Fn. 16]
This court's previous approach to the problem: Hertz v.
State
The Anders-Robbins line of cases is binding on the states
with regard to an indigent defendant's right to the assistance of
counsel on direct appeal. But petitions for post-conviction relief
present a different situation. Under Alaska law, indigent
petitioners for post-conviction relief have the right to competent
counsel at public expense. [Fn. 17] But there is no federal right
to counsel in post-conviction relief proceedings. [Fn. 18] Thus,
the Anders-Robbins line of cases does not answer the question of how
to protect an indigent's right to counsel in a post-conviction
relief proceeding when the petitioner's court-appointed attorney
concludes that the petitioner has no arguable claim.
In Hertz v. State, [Fn. 19] this court was asked to decide
whether to require the Anders procedure, or something akin to it,
when a court-appointed attorney asks the superior court for
permission to withdraw from a post-conviction relief case on the
ground that the litigation is frivolous. We rejected the Anders
approach and adopted the rule that a petitioner's attorney must
pursue the litigation even if the attorney believes that it is
frivolous. [Fn. 20] We adopted this rule for two main reasons.
First, Anders requires the trial court to independently
assess the attorney's declaration that the direct appeal is
frivolous. But it is much harder for a court to independently
assess the merit (or lack of merit) of a post-conviction relief
petition than it is for the court to assess the merit of an appeal.
[Fn. 21]
An appeal is always resolved on a discrete set of facts
the record of the already-completed trial court proceedings. To
assess the merit of the appeal, one applies the law to those facts.
Of course, it is possible that a judge may fail to perceive all of
the potential legal problems in the proceedings, or all of the legal
attacks that might possibly be made against the underlying
conviction. But at least all the cards are on the table.
Petitions for post-conviction relief present a more
difficult problem. Most petitions are based on facts outside the
trial record. Indeed, an attorney representing a petitioner for
post-conviction relief often must investigate the case anew i.e.,
review documents from police files, interview or depose witnesses,
and fully interview the petitioner to determine the petitioner's
potential claims and to evaluate the arguable merit of those claims.
Even if the petitioner's attorney were to file an Anders
brief (a full explanation of why the attorney concluded that the
petitioner had no arguable claims), the reviewing court would then
face the arduous task of reconstructing and second-guessing the
attorney's investigation. Potentially, this process would require
the court to assume an inquisitorial role deposing witnesses and
subpoenaing records. In our Anglo-American system of government,
such activities are normally thought to be antithetical to the
proper role of courts in criminal proceedings.
Second, this court concluded that there was little
functional difference between the Anders procedure and the normal
way of resolving the case through judgment on the pleadings. [Fn.
22] Under the Anders procedure, if the attorney concludes that the
litigation is frivolous, the attorney must file a brief that fully
explains why the petitioner has no colorable claims, and then the
court must independently review the attorney's assessment. Under
the normal post-conviction relief litigation procedures spelled out
in Criminal Rule 35.1 and amplified in State v. Jones, [Fn. 23] the
petitioner's attorney files pleadings which, for the most part,
serve the same function as an Anders brief portraying the case
in the best possible light for the petitioner, but without making
the explicit assertion that the attorney believes the case has no
arguable merit. If, indeed, the petitioner's claims have no
arguable merit, the court is authorized to dismiss the petition for
failing to state any ground that justifies relief. [Fn. 24]
Our analysis of Criminal Rule 35.1(e)-(f)
As explained above, Criminal Rule 35.1(e)(2) places a
special obligation on attorneys who are appointed to represent
indigent petitioners for post-conviction relief. Within sixty days
of the attorney's appointment, the attorney must (1) notify the
court and the prosecuting attorney that the litigation will go
forward based on the grounds alleged in the pro se application
already filed by the petitioner; (2) file an amended petition
containing the allegations that the attorney is prepared to pursue;
or (3) file a certificate stating that the attorney:
(i) does not have a conflict of interest;
(ii) has completed a review of the facts
and law in the underlying proceeding or action challenged in the
application;
(iii) has consulted with the applicant
and, if appropriate, with trial counsel; and
(iv) has determined that the application
does not allege a colorable claim for relief.
Initially, we note that this fourth clause the clause
that calls on the attorney to declare that "the application does not
allege a colorable claim for relief" cannot be read literally.
For even though an attorney may rightly conclude that the
petitioner's existing application for post-conviction relief fails
to allege a single colorable claim, the attorney's obligation to the
petitioner does not end here. Rule 35.1(e)(2)(A) requires the
attorney to file an amended application if there are other claims
that can reasonably be argued on the petitioner's behalf.
Thus, in order for an attorney to discharge the attorney's
obligation to the client under Criminal Rule 35.1(e)(2), the
attorney's certificate must assert that there is no colorable claim
for post-conviction relief that can be raised on behalf of the
petitioner. In other words, the attorney must certify both that the
petitioner's "[existing] application does not allege a colorable
claim for relief" and that the application cannot be amended to
assert one or more colorable claims for relief.
With this clarification of Rule 35.1(e)(2)(B)(iv), we turn
to the primary question raised in this appeal.
Griffin argues that we should reject the procedure
specified in Rule 35.1(e)(2)(B) in favor of the procedure adopted
in Hertz. That is, Griffin contends that an attorney who represents
an indigent petitioner for post-conviction relief should never be
allowed to withdraw, even if the attorney rightly concludes that the
litigation is frivolous.
We reject Griffin's argument because, once the legislature
has lawfully enacted a procedural rule, we are not at liberty to
substitute another procedure simply because we believe it might be
better. We have no authority to reject the procedure specified in
Criminal Rule 35.1(e)(2) unless that procedure violates the
constitution.
In Anders, the United States Supreme Court adopted a
procedure to protect an indigent litigant's right to counsel on
appeal a procedure designed to ensure that an indigent's appeal
receives fair and meaningful evaluation, based on the merits of the
case, before a court allows the appeal to be dismissed as frivolous.
But as the Supreme Court's later cases have clarified, the Anders
procedure is not the sole procedure that will satisfy these
constitutional concerns. Other procedures can (and have) been
adopted by the states and approved by the Supreme Court. [Fn. 25]
We view our decision in Hertz in much the same light.
Hertz, too, was concerned with the problem of ensuring that indigent
petitioners for post-conviction relief receive the effective
assistance of counsel guaranteed by Alaska law. Courts have the
constitutional responsibility to make sure that an indigent
defendant's application for post-conviction is "resolved in a way
that is related to the merit" of the petition [Fn. 26] not
dismissed simply because the defendant's attorney is unwilling to
devote the necessary effort to the case. But the solution adopted
in Hertz the rule forbidding the attorney to withdraw under any
circumstances is not the only procedure that could satisfy these
constitutional concerns.
Under the Hertz rule, courts no longer had to worry about
attorneys abandoning their indigent clients without good cause. But
this rule came with a cost: it required attorneys to pursue
frivolous litigation despite the fact that the Rules of Professional
Conduct forbid this, [Fn. 27] and it required the government to
research and answer frivolous petitions for post-conviction relief.
The Hertz court could justifiably conclude that these costs were
reasonable, in view of the goal to be attained. But this does not
mean that the legislature acted unreasonably or unconstitutionally
when it concluded that the balance should be struck elsewhere.
Criminal Rule 35.1(e)(2) does not suffer from the main
defect condemned in Anders and Hertz. The rule does not permit
attorneys to withdraw merely upon their declaration that the case
is frivolous. Attorneys must assert that they have no conflict of
interest, that they have investigated the facts and the law, and
that they have concluded that there are no arguable grounds for
post-conviction relief.
Moreover, Criminal Rule 35.1 mandates the two-tiered
review described by the United States Supreme Court in Robbins.
Even when an attorney files the certificate described in Rule
35.1(e)(2)(B), the trial court is prohibited from allowing the
attorney to withdraw until the court has independently examined the
potential merits of the case and has likewise concluded that the
petitioner has no colorable claim. [Fn. 28]
Under Criminal Rule 35.1(f)(2), when an indigent
petitioner's attorney files a "no-merit" certificate, the court must
independently assess whether "it appears . . . that the applicant
is not entitled to relief." And even if the court tentatively agrees
that the case is frivolous, Rule 35.1(f)(2) requires the court to
notify the parties of "its intention to permit counsel to withdraw
and [to] dismiss the application," and to explain its reasons for
doing so. The petitioner is then given an opportunity to respond
to the proposed dismissal. [Fn. 29] Only after the court considers
the petitioner's response (and still concludes that the petitioner
has no colorable claim) can the court dismiss the application and
allow the attorney to withdraw. [Fn. 30]
Thus, on its face, the procedure established in Criminal
Rule 35.1(e)-(f) appears sufficient to protect indigent petitioners'
right to the effective assistance of counsel while at the same time
advancing the policy of saving the state from financing frivolous
litigation. Nevertheless, we perceive one crucial flaw in the
procedure.
As explained above, an indigent petitioner for post-
conviction relief has a right to the effective assistance of
counsel, and thus the court has a duty to independently assess the
potential merits of the petitioner's case whenever the petitioner's
court-appointed attorney declares that the litigation is frivolous
and asks permission to withdraw. Rule 35.1(f)(2) in fact requires
the trial court to perform this independent assessment. But if the
attorney is permitted to file a certificate containing only the four
bare assertions listed in Rule 35.1(e)(2)(B)(i)-(iv) (even with the
expanded interpretation we have given to (B)(iv)), it will be
impossible for the trial court to perform the independent assessment
required by Rule 35.1(f)(2).
The independent judicial assessment required by Rule
35.1(f)(2) is crucial to the protection of indigent petitioners'
right to counsel. For, as the United States Supreme Court explained
in Robbins, the right to counsel includes "the right to have an
attorney, zealous for the indigent's interests, evaluate [the] case
and attempt to discern [any] nonfrivolous arguments." [Fn. 31]
Protection of this right to a zealous advocate is especially
important because, under Alaska law, a defendant is normally
entitled to only one petition for post-conviction relief. [Fn. 32]
In order for the court to perform its role under Rule
35.1(f)(2) and thereby fulfill its duty to make sure that indigent
litigants do in fact receive zealous investigation and presentation
of any colorable claims for post-conviction relief the attorney
seeking to withdraw from the case must provide the court with a full
explanation of all the claims the attorney has considered and why
the attorney has concluded that these claims are frivolous. Only
then can the court meaningfully assess and independently evaluate
the attorney's assertion that the petitioner has no arguable claim
to raise.
To reconcile Rule 35.1(e)(2)(B) with Rule 35.1(f)(2), and
to avoid the constitutional problems that would arise if we
interpreted Rule 35.1(e)(2)(B) narrowly, we hold that the
"certificate" described in Rule 35.1(e)(2)(B) must fully explain why
the attorney believes that the petitioner has no colorable claim to
post-conviction relief. But having construed Rule 35.1(e)(2)(B) in
this fashion, we hold that the procedure described in Criminal Rule
35.1(e) and (f) is constitutional and that it supersedes the rule
adopted by this court in Hertz.
Because the "no-merit" certificate filed by Griffin's
attorney did not comply with Rule 35.1(e)(2)(B) as we have
interpreted it here, we VACATE the superior court's dismissal of
Griffin's petition for post-conviction relief and we REMAND this
case to the superior court for further proceedings consistent with
this opinion.
FOOTNOTES
Footnote 1:
See AS 12.72.010-040.
Footnote 2:
See AS 18.85.100(c).
Footnote 3:
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) limited by
Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2D 756
(2000).
Footnote 4:
528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Footnote 5:
Id. at 760 (quoting Griffin v. Illinois, 351 U.S. 12, 24; 76
S.Ct. 585; 100 L.Ed. 891 (1956)(Frankfurter, J., concurring in
judgment)).
Footnote 6:
Robbins, 528 U.S. at _____ n.10, 120 S.Ct. at 760 n.10.
Footnote 7:
Id.
Footnote 8:
Id., 528 U.S. at _____, 120 S.Ct. at 753.
Footnote 9:
Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
Footnote 10:
See Robbins, 528 U.S. at _____, 120 S.Ct. at 753.
Footnote 11:
Id.
Footnote 12:
Id., 528 U.S. at _____, 1205 S.Ct. at 759 (quoting Griffin, 351
U.S. at 17-18, 20, 76 S.Ct. 585) (plurality opinion).
Footnote 13:
Id., 528 U.S. at _____, 120 S.Ct. at 759.
Footnote 14:
Id., 528 U.S. at _____, 120 S.Ct. at 761-62.
Footnote 15:
See id., 528 U.S. at _____, 120 S.Ct. at 761, 762.
Footnote 16:
See id., 528 U.S. at _____, 120 S.Ct. at 761.
Footnote 17:
See AS 18.85.100(c); Grinols v. State, 10 P.3d 600, 618 (Alaska
App. 2000).
Footnote 18:
See Pennsylvania v. Finley, 481 U.S. 551, 556-57; 107 S.Ct.
1990, 1994; 95 L.Ed.2d 539 (1987); Grinols, 10 P.3d at 612, 614.
Footnote 19:
755 P.2d 406 (Alaska App. 1988).
Footnote 20:
See id. at 409.
Footnote 21:
See id. at 408-09.
Footnote 22:
See id. at 409 (main opinion), 410-11 (Bryner, C.J.,
concurring).
Footnote 23:
759 P.2d 558 (Alaska App. 1988).
Footnote 24:
See Jones, 759 P.2d at 565.
Footnote 25:
See e.g., McCoy v. Court of Appeals of Wisc., Dist. 1, 486 U.S.
429, 108 S.Ct.1895, 100 L.Ed.2d 440 (1988); Robbins, 528 U.S. 259,
120 S.Ct. 746, 145 L.Ed.2d 756.
Footnote 26:
Cf. Robbins, 120 S.Ct. at 759 (discussing direct appeals).
Footnote 27:
See Alaska R. Prof'l Conduct 3.1 ("A lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein,
unless there is a basis for doing so that is not frivolous[.]");
Alaska R. Prof'l Conduct 1.16(a) (Unless a tribunal orders an
attorney to continue, "a lawyer shall not represent a client or,
where representation has commenced, shall withdraw from the
representation of a client if . . . (1) the representation will
result in violation of the rules of professional conduct.").
Footnote 28:
See Alaska R. Crim. P. 35.1(f)(2).
Footnote 29:
See id.
Footnote 30:
See id.
Footnote 31:
Robbins, 528 U.S. at _____ n.10, 120 S.Ct. at 760 n.10.
Footnote 32:
See AS 12.72.020(a)(6).
