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Linton v State (07/20/2001) ap-1753
Linton v State (07/20/2001) ap-1753
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
LANCE D. LINTON, SR., )
) Court of Appeals No. A-7603
Appellant, ) Trial Court No. 4FA-97-153 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1753 July 20, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Lance D. Linton, Sr., in propria
persona, Florence, Arizona, for Appellant. Eric A. Johnson,
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.
Lance D. Linton is pursuing a petition for post-conviction
relief, alleging that he received incompetent representation from
his trial attorney. When a defendant makes such a claim, Alaska law
normally requires the defendant to obtain an affidavit from their
trial attorney (an affidavit discussing the various allegations of
incompetence). If such an affidavit can not be obtained, the
defendant must explain the efforts that were made to procure the
affidavit and why these efforts proved unsuccessful.
In Linton's case, a dispute developed as to whether Linton
had tried to obtain an affidavit from his trial attorney. We
directed the superior court to hold an evidentiary hearing to
resolve this issue. We told the superior court that if Linton had
not asked his attorney to supply an affidavit, the court could
properly dismiss Linton's petition for post-conviction relief; if,
on the other hand, Linton had attempted to obtain the required
affidavit but was unsuccessful, then the court should allow the
post-conviction relief litigation to go forward.
The facts turned out to be more complicated than we
anticipated. The superior court found that Linton may have made
some ineffective efforts to obtain the required affidavit from his
attorney, but when these efforts failed, Linton did not diligently
pursue the matter. Based on these findings, the superior court
dismissed Linton's petition for post-conviction relief. Linton now
appeals the superior court's decision.
We agree with the superior court that Linton's attempts
to obtain his trial attorney's affidavit were flawed. Nevertheless,
it is clear from the record that Linton understood the necessity of
obtaining the trial attorney's affidavit and that he made some
effort to obtain it. Linton drafted a letter to his trial attorney
in early September 1996, detailing his various allegations of
incompetent representation and asking the attorney to respond.
Linton sent informational copies of this letter to the superior
court and the Fairbanks District Attorney's Office. Linton's trial
attorney never received the letter, but the superior court and the
district attorney did receive their copies of the letter in mid-
September 1996.
Linton is representing himself, and he is confined in
prison. Moreover, the superior court possessed a contemporaneous
copy of the letter that Linton wished to deliver to his attorney.
Given these facts, we conclude that when the dispute arose
concerning Linton's failure to supply his attorney's affidavit, the
superior court should have resolved this issue by providing the
trial attorney with a copy of Linton's letter and asking the
attorney to respond.
The underlying procedural history of this case
In 1992, Lance D. Linton, Sr., was convicted of murdering
his wife. This court affirmed Linton's conviction in Linton v.
State. [Fn. 1] In 1997, Linton filed a petition for post-conviction
relief. In his petition, Linton asserted that his trial attorney
had represented him incompetently in various ways. Linton supported
this petition with his own affidavit, but he failed to include an
affidavit from his trial attorney.
Under Steffensen v. State [Fn. 2] and State v. Jones [Fn.
3], Linton was obliged to furnish the superior court with either (1)
an affidavit from his trial attorney addressing these various claims
of incompetence or (2) an explanation of why it was not possible to
obtain such an affidavit. But Linton's petition included neither
the affidavit nor the explanation. Based on this omission, the
State asked the superior court to dismiss Linton's petition for
failure to state a prima facie case.
In his opposition to the State's motion, Linton asserted
that he had, in fact, requested an affidavit from his trial
attorney, but the attorney had ignored Linton's request. The State
responded by filing an affidavit from Linton's trial attorney. The
trial attorney stated that Linton had never asked him to submit an
affidavit; the attorney further stated that, had Linton asked him
to prepare an affidavit, he certainly would have.
Based upon these pleadings, the superior court granted the
State's motion and dismissed Linton's petition for post-conviction
relief. The court ruled that Linton had failed to present a prima
facie case of attorney incompetence.
In Linton v. State (II) [Fn. 4], we concluded that the
superior court should not have dismissed Linton's petition without
allowing Linton to present evidence on this disputed issue. [Fn.
5] We therefore remanded Linton's case to the superior court so a
hearing could be held to resolve this factual dispute. We told the
superior court:
If, following this hearing, the superior court
concludes that Linton did not ask his attorney to supply an
affidavit (in other words, that Linton is now misrepresenting the
facts), then the court may properly dismiss Linton's petition for
post-conviction relief. On the other hand, if the superior court
concludes that Linton attempted to obtain an affidavit from his
trial attorney but was unsuccessful, then the court should allow the
post-conviction relief litigation to go forward.
Linton (II), slip opinion at 3.
The evidence presented at the remand hearing, and the
superior court's ruling
The superior court held the mandated hearing on August 10,
1999. Three witnesses testified: Linton, Nelson Traverso (Linton's
trial attorney), and John Franich (the supervising attorney for the
Fairbanks branch of the Office of Public Advocacy).
Linton testified that on September 4, 1996 he sent a
letter to Traverso, asking him to prepare an affidavit to be filed
in conjunction with Linton's petition for post-conviction relief.
Linton sent informational copies of this letter to the superior
court and the Fairbanks District Attorney's Office.
According to Linton, his letter to Traverso was returned
because it was incorrectly addressed. The letter came back to
Linton with a yellow sticker indicating the correct address for the
Office of Public Advocacy, but Linton did not resend the letter to
Traverso. Instead (Linton testified), he prepared a new, stamped
envelope addressed to the Office of Public Advocacy (at its correct
address), he placed his original letter to Traverso inside this new
envelope, and then he sent the whole package to the superior court
(or possibly the district attorney's office), with a cover memo
asking the court to send the enclosed stamped envelope to the Office
of Public Advocacy.
When the prosecutor cross-examined Linton, the prosecutor
asked Linton why he had failed to mention this series of events
before. Linton conceded that he had never, until that very day,
explained to anyone about the returned letter or his subsequent act
of forwarding that letter to the court (or the district attorney).
Linton explained his silence by asserting that he felt no need to
take any further action, and no need to call the returned letter to
anyone's attention, because, "as far as [he] was concerned, Attorney
Traverso had received the letter." Linton contended that even if
the original letter never reached Traverso, Linton's obligation was
discharged because he had sent a copy of the letter to the court and
to the Fairbanks District Attorney whom Linton repeatedly referred
to as Traverso's "advocate".
Traverso himself testified that he never saw Linton's 1996
letter until the letter became an issue in 1998. John Franich, the
supervising attorney at the Office of Public Advocacy, testified
that nothing in Linton's file suggested that OPA ever received
Linton's original letter to Traverso. The OPA staff first saw a
copy of Linton's letter to Traverso on March 24, 1997, when Linton
served several papers on OPA in connection with a federal civil
rights suit that he had filed against OPA and Traverso personally.
This was six days after the superior court dismissed Linton's post-
conviction relief petition for failure to state a case.
After hearing all of this evidence, Superior Court Judge
Niesje J. Steinkruger concluded that Linton had failed to prove that
he acted diligently to obtain an affidavit from Traverso. She found
that there was no evidence to corroborate Linton's claim that his
original letter to Traverso was returned to him by the post office,
or that Linton then forwarded the returned letter to the court (with
a cover memo asking the court to mail the letter to Traverso).
Judge Steinkruger noted that the court's file contained no
indication that the court ever received such a mailing from Linton.
Judge Steinkruger also noted that, in all of the pleadings
that Linton filed prior to the August 1999 remand hearing, Linton
had never before offered the story he was now presenting in
particular, his assertions that his September 1996 letter to
Traverso was returned because of an incorrect address, and that
thereafter he forwarded the returned letter to the superior court
in a stamped, correctly addressed envelope, along with a memo
instructing the court to mail the letter to Traverso.
Judge Steinkruger further found that although Linton
contemporaneously sent copies of the letter to the court and to the
district attorney's office, these copies were obviously just that
copies of a letter addressed (and presumably mailed) to Traverso,
and they were not accompanied by any request to forward the letter
to Traverso. That is, the receipt of these copies did not put the
court or the district attorney's office on notice that Linton had
failed to send the original letter to Traverso, or that Linton might
be relying on the court or the district attorney to forward a copy
to Traverso. Thus, the judge concluded, Linton's actions were not
"reasonably calculated to achieve the required result" i.e., not
reasonably calculated to obtain the required affidavit from
Traverso.
Judge Steinkruger ruled that any attempt Linton may have
made to send a letter to Traverso was insufficient to satisfy
Linton's burden of seeking an affidavit from his trial attorney
and that, for this reason, Linton's petition for post-conviction
relief was subject to summary dismissal for failure to state a prima
facie case.
Our analysis
Judge Steinkruger's ruling comprises two parts: a finding
of fact and a ruling of law.
Judge Steinkruger's finding of fact deals with the
credibility of Linton's testimony at the evidentiary hearing in
particular, Linton's assertions that the post office returned his
original letter to Traverso because it was incorrectly addressed,
and that Linton then placed the returned letter in a stamped and
properly addressed envelope, forwarded this letter to the superior
court, and instructed the court to convey the letter to Traverso.
Judge Steinkruger found that Linton's story was not credible,
primarily because there was nothing to corroborate Linton's story
and because he offered this story for the first time at the
evidentiary hearing. The record supports Judge Steinkruger's
finding.
In the pleadings that Linton filed prior to the August
1999 evidentiary hearing most notably, in Linton's "Pro Se
Memorandum of Law in [Opposition to] State's Motion to Dismiss Post-
Conviction Relief Application" (dated February 20, 1997), page 3;
and in his "Memorandum of Law in Support of Motion for Hearing on
[the] Ineffective Counsel Claim" (dated March 9, 1999), pages 3-4
Linton described the steps he had taken to obtain Traverso's
affidavit and he tried to explain why he had not yet obtained it.
In neither of these pleadings did Linton mention that the post
office had returned his letter to Traverso, or that Linton had then
forwarded the returned letter to the superior court. Moreover,
neither the superior court nor the district attorney's office ever
received the forwarded letter that Linton claimed to have sent.
Given this record, Judge Steinkruger was not clearly erroneous when
she found Linton's August 1999 version of events to be unbelievable.
[Fn. 6]
However, putting aside Linton's story of the returned
letter, it is undisputed that in mid-September 1996 both the
superior court and the district attorney's office received copies
of a letter addressed to Traverso from Linton a letter in which
Linton asked Traverso to prepare an affidavit responding to various
allegations of ineffective assistance. Linton has consistently
maintained (i.e., both in his pre-August 1999 pleadings and at the
evidentiary hearing) that he sent this letter to Traverso in
September 1996 and that, even if Traverso never personally received
this letter, Linton nevertheless satisfied his obligation to try to
obtain Traverso's affidavit. Linton particularly relied on the fact
that the superior court and the district attorney's office received
contemporaneous copies of this letter. He argued that the district
attorney's office "represented" Traverso, and thus his act of serving
a copy on the district attorney should be deemed service on
Traverso. Alternatively, Linton argued that the superior court
itself was obliged to notify Traverso of Linton's request for an
affidavit.
At the close of the evidentiary hearing, Judge Steinkruger
rejected Linton's legal contentions; that is, she rejected Linton's
arguments that the district attorney's and/or the superior court's
receipt of a copy of his letter to Traverso should be deemed
equivalent to a direct request to Traverso to prepare the required
affidavit. Having rejected Linton's legal arguments, Judge
Steinkruger then ruled that Linton had not acted diligently to
obtain Traverso's affidavit and that Linton should therefore be
deemed to have submitted his petition for post-conviction relief
without seeking the required affidavit. In other words, Judge
Steinkruger ruled that Linton's petition should be dismissed because
he had not done enough to obtain Traverso's affidavit.
We agree with Judge Steinkruger that, as a legal matter,
the district attorney's office does not represent Traverso in this
litigation, and thus the district attorney's receipt of its copy of
the letter did not constitute service on Traverso. We also agree
that when the superior court received its copy of the letter in mid-
September 1996, the court had no duty to forward its copy to
Traverso because the court could reasonably assume that Linton
had sent the original directly to Traverso. But later events should
have prompted the court to take affirmative action to ensure that
Linton's letter was transmitted to Traverso.
By February 1997, it was obvious that something had gone
awry: either Traverso was refusing to respond to Linton's request
for an affidavit, or Linton's request had somehow never been
communicated to Traverso. In a pleading dated February 20, 1997,
Linton told the court:
Before [Judge Steinkruger] should be the trial
counsel Attorney Traverso's Affidavit. State v. Jones, 759 P.2d 558
(Alaska App. 1988). Attorney Traverso has already verbally come
forward to the Fairbanks District Attorney on the letter dated
September 4, 1996, from this applicant requesting an Affidavit under
State v. Jones, 759 P.2d 558 (Alaska App. 1988). This applicant has
not as yet received the requested Affidavit [from] trial counsel
Traverso. Pro se [applicants] can only request said Affidavit from
their ineffective trial counsel in a timely manner and indicate so
in the record. This has been done (Exhibit A) [a copy of Linton's
September 4, 1996 letter to Traverso], although [District] Attorney
Davis in his twisted pleadings would attempt to make it appear
differently. This is also a moral error on [District] Attorney
Harry Davis's record for accepting Attorney Traverso's testimony
verbally and not requiring the State OPA Attorney [i.e., Traverso]
to complete the requested Affidavit, and dispatching it to this
applicant and [the] Trial Judge.
"Pro Se Memorandum of Law in [Opposition to] State's Motion to
Dismiss Post-Conviction Relief Application", page 3.
Although Linton's language is a little hard to follow, and
even though his pleading is laced with aspersions on the ethics of
opposing counsel, Linton is basically saying that (1) he knew that
State v. Jones required him to submit an affidavit from his trial
attorney, (2) he in fact asked Traverso to prepare an affidavit, (3)
he believed that Traverso had received this request (the letter of
September 4, 1996) because it appeared that Traverso had already
discussed the case with the district attorney's office, but
nevertheless (4) Traverso had failed to prepare the requested
affidavit so far.
Linton was representing himself, and he was in prison; his
ability to communicate with Traverso was limited, and he could not
personally deliver the letter to Traverso. Linton knew that he was
obligated to obtain Traverso's affidavit, he had drafted a letter
asking Traverso to respond to various allegations of ineffective
representation, and the superior court was in possession of a copy
of this letter. Based on the wording of Linton's February 1997
pleading, Linton clearly believed that Traverso had received his
request for the needed affidavit and was ignoring it. Under these
circumstances, when it became apparent that Traverso had never
received Linton's letter, the superior court should have taken
matters in hand by delivering a copy of the letter to Traverso and
asking Traverso to prepare a responding affidavit.
It may be true, as Judge Steinkruger found, that Linton
reacted unreasonably when the State (and Traverso himself) asserted
that Traverso had never received Linton's September 1996 letter.
In response, Linton could simply have asked the court or the
district attorney's office to forward a copy of the letter to
Traverso. Instead, Linton accused everyone of violating their legal
and ethical duties.
Linton's various pleadings show him to be distrustful of
the State and of his former attorney. His writing is sometimes
prolix and difficult to follow. And, as Judge Steinkruger found,
Linton may have misrepresented the facts at the August 1999
evidentiary hearing. But a defendant is generally entitled to only
one petition for post-conviction relief [Fn. 7], and the superior
court should normally not dismiss the petition simply because the
defendant is a difficult or unreasonable litigant.
Here, both the court and the district attorney's office
were in possession of copies of a letter that Linton apparently
wanted Traverso to respond to a letter requesting the affidavit
that Linton knew he was obligated to produce in support of his
petition for post-conviction relief. When it became clear that
Linton's letter had not reached Traverso, the fairest solution was
for the court to make sure that a copy was delivered to Traverso so
that the post-conviction relief process could go forward. This is
what we direct the superior court to do now.
Conclusion
The judgement of the superior court is REVERSED. Linton's
petition for post-conviction relief is reinstated. The superior
court shall serve a copy of Linton's September 4, 1996 letter on
attorney Nelson Traverso and shall request that Traverso prepare an
affidavit responding to Linton's allegations of ineffective
assistance. This case shall then go forward under the procedures
governing post-conviction relief litigation.
FOOTNOTES
Footnote 1:
880 P.2d 123 (Alaska App. 1994), affirmed on rehrg., 901 P.2d
439 (Alaska App. 1995).
Footnote 2:
837 P.2d 1123, 1126-27 (Alaska App. 1992).
Footnote 3:
759 P.2d 558, 570 (Alaska App. 1988).
Footnote 4:
Alaska App. Memorandum Opinion No. 4000 (February 24, 1999).
Footnote 5:
See id. at 2-3.
Footnote 6:
See D.H. v. Department of Health and Social Services, 929 P.2d
650, 653 n.8 (Alaska 1996) (a trial court's findings of fact are to
be upheld unless they are "clearly erroneous").
Footnote 7:
See AS 12.72.020(a)(5)-(6).
