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James v. State (6/28/2002) ap-1807
James v. State (6/28/2002) ap-1807
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
DARYLE D. JAMES, )
) Court of Appeals No. A-
7690
Appellant, ) Trial Court No.
1KE-97-386 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1807 June
28, 2002]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Dan S. Bair, Anchorage, 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.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
A jury convicted Daryle D. James of second-degree
sexual abuse of a minor1
and second-degree sexual assault.2 On direct appeal, we affirmed
James's convictions and sentence.3 James filed an application
for post-conviction relief, and James now appeals the superior
court's dismissal of his application.
James argues that the superior court erred when it
dismissed his claim that he was entitled to a new trial because
the only eyewitness to his sexual misconduct recanted. But the
superior court held a hearing on this claim at which the
recanting witness testified. The court made findings on the
testimony presented and denied James's claim. We affirm the
superior court because its findings rejecting this claim are not
clearly erroneous.
James also argues that the superior court erred when it
dismissed his remaining claims before his attorney gave a
detailed explanation of why those claims lacked merit.4 Because
of the unusual factual circumstances in James's case, we agree
with James for the reasons stated below. Accordingly, we vacate
the dismissal of those remaining claims and remand for further
proceedings.
Discussion
The recanting witness claim
The underlying criminal case arose on June 12, 1994.
Following a dance in Ketchikan, a group of teenagers gathered in
a Saxman home for a late night party. Several adults were also
drinking at the house. While at the party, thirteen-year-old
E.F. became intoxicated, eventually passed out, and has no
recollection of the early morning hours of June 12.
At some point in the night, E.F. had sex with M.C.
D.M., a fourteen-year-old girl at the party, testified that after
M.C. and E.F. had sex, she dressed E.F. and covered her up with a
sleeping bag. Later, D.M. checked on E.F. and again found her
naked. James came into the room while D.M. was there and
commented on E.F.'s vaginal area. D.M. dressed E.F. and left.
When D.M. checked on E.F. again, another man was having sex with
E.F.
Later that morning, James complained because E.F. was
in his room, and she was dragged to another bedroom. D.M. opened
the door to this room and observed James engaged in sexual
intercourse with E.F., who was unconscious. After she saw him
having sex with E.F., D.M. started to yell at James. D.M. was
the only eyewitness to James's sexual assault of E.F. James is
D.M.'s great uncle.
Bert Colegrove, one of the adults at the house, told
police shortly after the incident that he saw James dragging an
unconscious naked teenage girl from one room to another.
Colegrove said that he told James not to do that, and James told
him to mind his own business. Colegrove recanted at the grand
jury and testified that he thought James was just trying to get
E.F. to a "safe place."
Colegrove's son also saw James and M.C. drag E.F. to a
room and shut the door. When Colegrove's son returned to the
room, he saw fresh semen on the mattress.
A number of individuals who claimed to have been at the
party testified in support of James at his trial. According to
these witnesses, James asked some of the teenage boys who were
upstairs to "get this fucking bitch" out of his room because he
wanted to go to sleep and E.F. had gotten sick in his bedroom.
Most of the defense witnesses testified that three boys dragged
E.F. from James's bedroom to another bedroom and that E.F. was
clothed. None of the witnesses corroborated D.M.'s testimony
that she began yelling at James when she saw James having sex
with E.F.
At approximately 5:00 a.m., Burt Colegrove and his
family left the house and took a cab to downtown Ketchikan.
Colegrove called the troopers because he was concerned about E.F.
and because he had seen teenagers drinking at the party.
Alaska State Trooper Sergeant Robert Stevenson
responded to the party and spoke to D.M. and E.F. That
afternoon, E.F. went to Ketchikan General Hospital for a sexual
assault exam. The troopers performed DNA tests on evidence
collected during the examination and on blood samples from James.
The DNA testing showed that James's DQ-alpha genotype did not
exclude him as the source of the semen and that approximately 58%
of the Tlingit population have this DQ-alpha genotype (James is
Tlingit).
Sergeant Jeffrey Hall contacted D.M. on June 16, 1994,
four days after the incident. D.M. was reluctant to talk to
Sergeant Hall, but Hall did not remember pressuring or
threatening her to get her to talk. During this initial
interview, D.M. cried and said it was difficult for her to talk
about the incident because James was family. She said that she
saw James having sex with E.F. and that E.F. was passed out.
On June 23, 1994, Sergeant Hall arrested James and
charged him with first-degree sexual abuse of a minor and second-
degree sexual assault. On July 1, 1994, a grand jury indicted
James on charges of second-degree sexual abuse of a minor and
second-degree sexual assault. The troopers were unable to find
D.M. to serve her with a subpoena to appear at the grand jury
proceedings. D.M. and her mother moved to Anchorage in July
1994. On June 6, 1994, before the assault, D.M. had been
adjudicated a delinquent based on two counts of fourth-degree
assault. She was a runaway probationer because she left Saxman
without notice.
James's trial was scheduled for October 11, 1994. The
State requested several continuances because the State was unable
to locate D.M. On December 20, 1994, the court granted the
State's request to issue a material witness warrant for D.M.
On December 29, 1994, authorities arrested D.M. on the
material witness warrant. She was held at McLaughlin Youth
Center and at Johnson Youth Center for several weeks while
awaiting trial. James went to trial on February 21, 1995. At
trial, D.M. testified that there was no doubt in her mind that
she saw James having sex with E.F.
In her affidavit recanting her trial testimony, D.M.
stated: "I am making these statements because I want to tell the
truth, and I want the people who hurt and abused me to answer for
what they did." D.M. claimed in her affidavit:
I remember when they started questioning
me. They did it on the phone. At first I
told them "I can't tell you nothin' because I
can't remember." I had been drinking. I
didn't say that because I didn't want to get
in trouble. They kept asking me about
[James]. By they I mean the D.A. and the
troopers.
She alleged that at Johnson Youth Center in Juneau the district
attorney and the troopers told her that she would not get out of
jail until she was twenty-one if she did not testify. She also
stated:
I told my attorney that I did see stuff at
the party, because I knew I needed to do it
to get out of J.Y.C. When I knew what they
wanted me to say, and I said those things
they wanted to hear and my attorney was real
concerned about people trying to get me to
say things. I didn't even think about my
uncle doing time. I was just thinking about
me and how I hated it where I was. I was
abused physically and emotionally. My sister
needed me and I wanted out of JYC really bad.
I didn't think about my uncle, that's why I
cried on the witness stand. . . . I
practiced my testimony in my cell.
D.M. also claims she was mistreated by the guards and that they
misunderstood her case, but she does not explain if the
mistreatment was related to them trying to get her to testify
against James.
Before testifying at trial, D.M. met with Janice Hill,
a paralegal from the District Attorney's office; Ben Herren, the
Assistant District Attorney prosecuting the case; Debbie Muir,
the trooper who transported D.M. from Juneau to Ketchikan; and
Sergeant Hall. At the evidentiary hearing, Hall, Herren, and
Muir testified that no one pressured or threatened D.M. to
testify consistent with what she had told Sergeant Hall
initially.
Sergeant Hall also testified that he did not contact
D.M. while she was at McLaughlin or the Johnson Youth Center.
He testified that the State did not bribe D.M. During the
meeting before D.M. testified at trial, Sergeant Hall reviewed
his prior interview with her, and she told him her testimony
would be consistent with the prior interview.
Assistant District Attorney Herren testified that he
did not discuss perjury with D.M. and that he did not remember
calling D.M. while she was at the youth centers or instructing
anyone in his office to contact her. He testified that he was
surprised that her trial testimony did not waver because of the
difficulty securing her attendance at trial. Superior
Court Judge Michael A. Thompson concluded that the determining
factor in the case was that no one was pressuring D.M. when she
talked to Sergeant Hall initially about seeing James having
sexual intercourse with E.F. He found that after D.M. became the
State's "star witness" there was pressure on her not to change
her story. Judge Thompson believed that guards and other inmates
at McLaughlin put "considerable pressure" on D.M. by telling her
that if she changed her story, that it would be perjury, and that
is a crime for which she could be committed. But he also found
that D.M.'s family pressured her to recant. And the judge
recognized that at the time of trial, D.M. had "possibilities of
manipulating her position into positives for her" but when she
recanted, she had nothing to gain from the State.
Judge Thompson recognized that James had the burden
of proving by clear and convincing evidence that D.M. lied at the
trial and was telling the truth when she testified at the
evidentiary hearing. The judge examined D.M.'s motives at the
time she gave her initial statement to the troopers, her motives
at the time of trial, and her motives when she recanted. Judge
Thompson found that D.M.'s recantation testimony was not
credible.
A review of the record on this issue establishes that
Judge Thompson's findings are not clearly erroneous.5
Accordingly, Judge Thompson did not abuse his discretion when he
found that D.M.'s recantation was insufficient to hold a new
trial.6
James's remaining claims
On September 26, 1997, James filed a pro se application
for post-conviction relief. James claimed that (1) he was denied
a grand jury of his peers; (2) he was denied a jury of his peers;
(3) the jury composition was illegal because more than one-half
of the judicial district was excluded as potential jurors; (4)
his right to a fair trial was violated under article one,
sections seven, eight, and nine of the Alaska Constitution; (5)
he suffered ineffective assistance of trial counsel; (6) he
suffered ineffective assistance of sentencing counsel; and (7) he
suffered ineffective assistance of appellate counsel. James
filed a pro se Memorandum of Facts and Authorities that addressed
only his claims regarding the selection and composition of the
jury.
In January 1998, the court appointed the Public
Defender Agency to represent James, but the court allowed the
agency to withdraw because it represented D.M., the recanting
witness in James's case. The State filed a Motion to Dismiss
James's application on January 28, 1998. The court appointed the
Office of Public Advocacy as counsel for James, and on February
10, 1998, Ronald Hemby entered an appearance on James's behalf.
Thereafter, on March 16, 1998, Judge Thompson dismissed James's
application.
On behalf of James, Hemby moved for reconsideration of
the dismissal and asked to supplement James's post-conviction
relief application, because the pro se application "omitted
issues that should be considered" and because of newly discovered
evidence "in the form of recantation of testimony by the only
alleged eyewitness to the offense[.]" Hemby sought additional
time to review the case and explore the claims regarding the
grand jury procedure and ineffective assistance of counsel.
Judge Thompson granted James's motion. Later, Hemby filed a
"Memorandum in Supplement of Petition for Post-Conviction
Relief." Although the memorandum stated it incorporated James's
pro se application, it discussed only the recantation claim and
requested an evidentiary hearing to resolve the claim. The State
opposed the recantation claim and requested an evidentiary
hearing to resolve the recanting witness claim.
On June 16 and 19, 1998, Judge Thompson held an
evidentiary hearing. At the conclusion of the hearing, the State
brought up the other issues contained in James's post-conviction
relief application:
Finally, there were two other issues
that were raised in Mr. James's application
for post-conviction relief dealing with jury
selection, and the other one ineffective
assistance of counsel. And I filed a motion
for summary adjudication, which the court
granted, and ... the defense asked to
reconsider it. And the court granted him
some time to do so. And when they filed
their motion, all they raised was the issue
of recantation. They didn't raise any other
issue. And so the state feels the court
should grant summary adjudication on those
other two issues as well.
James's counsel did not respond to this argument. Judge Thompson
stated:
The only reason I granted reconsideration,
Mr. Hemby, on those was there was a change of
counsel. I wanted new counsel to take a new
look. You know, and maybe you'd come up with
a case or some principle or argument that
hadn't been made before. I see you didn't.
I wasn't surprised you didn't. I think the
arguments were well stated beforehand. They
were brought as forcefully as they could be
brought, and they simply weren't persuasive.
Once again, I was here at the trial and I
thought the jury selection was fair.
Even though the court did not explicitly dismiss James's
remaining claims, on July 13, 1998, James moved (through Hemby's
partner, Vernon Keller) to supplement his post-conviction relief
application. In the affidavit supporting the motion, James's
attorney stated that the firm's efforts had focused on the
recantation issue:
The Memorandum in Supplement of Petition for
Post-Conviction Relief did not supplement any
of the issues previously raised by Mr. James
in his original Application. ... Mr. James
has claimed that he was provided ineffective
assistance of counsel by his trial attorney
... and his sentencing and appellate
attorney. ... Mr. James needs additional time
to get affidavits from these attorneys so
that his allegations of ineffective
assistance of counsel can be meaningfully
evaluated by his current counsel and
addressed by this court.
The State did not oppose the request, and on August 11,
1998, the court granted James's motion to supplement his
petition. However, less than a week later, another attorney,
Brian Schulz, substituted for Hemby's firm. The notice of
substitution claimed that Hemby had a conflict of interest, but
the court never ruled on this issue.
On December 22, 1999, Schultz filed a Certificate of No-
Merit under Criminal Rule 35.1(e)(2)(B). The court issued a
"Proposed Withdrawal and Dismissal" on February 9, 2000. Judge
Thompson granted James additional time to respond to the proposed
order, but dismissed James's application on May 2, 2000.
The State argues that Schulz's Rule 35.1(e)(2)(B) no-
merit certificate has no legal significance. The State contends
that since James's initial attorney did not select the option of
filing a no-merit certificate, and instead, pursued the
recantation claim to a hearing, the Griffin requirement need not
be met for the remaining claims.
Normally, a competent attorney can analyze the
potential claims raised in an application for post-conviction
relief and, as a matter of sound tactical consideration, decide
which claims to pursue.7 But the record in this case does not
show this is what occurred. Hemby elected to present the
recantation claim to the court, but shortly after the court
rejected that claim at the hearing, his firm asked for more time
to meaningfully evaluate the claims James raised pro se. Thus,
one lawyer or firm did not evaluate all the potential claims and
conclude that only the recantation claim had merit.
As we pointed out in Griffin:
[A]n 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) . . . ,
it will be impossible for the trial court to
perform the independent assessment required
by Rule 35.1(f)(2).[8]
Although Hemby focused on the recantation claim that led to the
evidentiary hearing, after the court rejected that claim, Hemby's
firm requested additional time to evaluate the other claims in
the application and "to get affidavits from [the trial] attorneys
so that his allegations of ineffective assistance of counsel can
be meaningfully evaluated by his current counsel and addressed by
this court." The State did not oppose the request for more time
and the superior court found good cause to grant James's attorney
additional time to evaluate those remaining claims by obtaining
affidavits from James's trial attorneys. (An affidavit from the
trial attorney is a necessary component of a prima facie case of
ineffective assistance of counsel.9) Although Bryan Schultz
substituted for Hemby's firm and filed a certificate that
followed the provisions of Rule 35.1(e)(2)(B), the certificate
did not provide the court with the analysis we later estabished
in Griffin: "[A] full explanation of all the claims the attorney
has considered and why the attorney has concluded that these
claims are frivolous."10 The court allowed the attorney to
withdraw even though James still had the right to appointed
counsel to appeal the court's denial of the recantation claim.11
A fair reading of the attorney's request for more time
after the evidentiary hearing is that James's attorney focused on
the recanting witness without evaluating the merit of James's
remaining claims. As we indicated in Griffin, an attorney
seeking to withdraw from a case after the attorney has concluded
that all of the applicant's claims are meritless must describe
all the claims the attorney has analyzed along with an
explanation why the attorney has concluded those claims are
frivolous.12 This is required so the trial court can satisfy its
duty under Alaska Criminal Rule 35.1(f)(2) to ensure that an
applicant received zealous investigation and presentation of any
colorable claims.13
As the record presently stands in this case, it is
apparent that James's attorneys litigated the recantation claim
without evaluating the claims James raised pro se. Although the
court could have required the parties to be prepared to resolve
all the application's claims at the hearing, the court did not do
so. And after the court considered and rejected the recantation
claim that James's attorney raised, the court found good cause to
permit James to pursue the other claims. Thus, James stood in
the same position after the hearing that he did before the
recantation claim was litigated: his application asserted
deficiencies in jury composition and claims of ineffective
assistance of counsel.
Ordinarily, a detailed no-merit certificate as required
by Griffin as a predicate for the court permitting the
withdrawal of appointed counsel applies to the limited
circumstance where appointed counsel concludes that the
application for post-conviction relief presents no colorable
claims to litigate. That was not the case here because the
recantation claim required a two-day evidentiary hearing and
could only be resolved after the court considered the credibility
of witnesses. James retained his right to appeal the superior
court's rejection of that claim and the right to appointed
counsel for that appeal. Even so, the superior court permitted
withdrawal.
When James's attorney filed the no-merit certificate in
this case, we had not issued Griffin and there was no requirement
that the attorney describe the claims the attorney considered
along with an analysis of why those claims were frivolous. Thus,
the record is not clear what claims James's last post-conviction
relief attorney considered to be frivolous. Certainly, James's
right to appeal the denial of the recantation claim was not.
Consequently, because of the unusual circumstances of this case,
we vacate the order of the court dismissing James's remaining
claims and remand for further proceedings.
Conclusion
The judgment of the superior court is AFFIRMED in part,
VACATED in part, and REMANDED for further proceedings. We do not
retain jurisdiction.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that, because of the unusual
facts of this case, Jamess last post-conviction relief attorney
could not simply notify the superior court of his conclusion that
none of Jamess remaining claims had merit. Rather, the attorney
was bound by the rule we announced in Griffin v. State, 18 P.3d
71 (Alaska App. 2001) that is, he was obliged to provide the
superior court with a full explanation for his conclusion that
James had no further colorable issues to raise. I am writing
separately to clarify my factual and legal reasons for reaching
this conclusion.
In Griffin, we augmented the literal wording of Alaska
Criminal Rule 35.1(f)(2) to ensure an indigent defendants right
to effective assistance of counsel. We held that when an
attorney is appointed to represent an indigent petitioner for
post-conviction relief, and when the attorney concludes that the
petitioner has no colorable claim for relief, the attorney is
obliged to 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.1 This explanation is
required so that the court can 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.2
But what of situations where the attorney concludes
that the petitioner has at least one claim that has arguable
merit and should be pursued? In such circumstances, does Griffin
require the attorney to explain why they are not pursuing other
potential claims?
The answer is no. Griffin applies only when the
attorney concludes that there are no colorable claims to be
raised on the petitioners behalf.
In Tucker v. State, 892 P.2d 832 (Alaska App. 1995), we
addressed an analogous issue an attorneys obligation when
representing an indigent defendant on direct appeal. The
question in Tucker was whether an appellate attorney is obliged
to raise every colorable issue that might be raised on appeal or
whether, instead, the attorney could choose to pursue the most
meritorious issues and abandon claims that, although arguable,
stood a lesser chance of success. We held that [s]uch strategic
choices fall squarely within the sphere of competent
representation.3
In support of this conclusion, we relied on the United
States Supreme Courts decision in Jones v. Barnes, 463 U.S. 745,
103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In Jones, the Court
recognized that a crucial part of appellate advocacy is to winnow
out weaker arguments. Thus, the Court held, an appellate
attorney representing an indigent defendant is not required to
raise every colorable claim.4
We now hold that this same rule applies to attorneys
representing indigent defendants in post-conviction relief
litigation. Part of the attorneys job is to investigate the case
and then select which issues to pursue and which to forego. When
the petitioners attorney reviews the petitioners potential claims
for post-conviction relief and then actively litigates one or
more of those claims, the concern that prompted our decision in
Griffin is alleviated: that is, the court can justifiably
presume that the petitioner is receiving zealous representation.
Absent a later assertion that the attorney acted incompetently
when selecting the claims to litigate, there is no need for the
attorney to independently justify all the roads not taken.
Griffin applies only when the attorney declares that there are no
claims to litigate.
At first glance, the present appeal seemingly presents
a situation where Griffin does not apply. James and his
attorneys (the law firm of Hemby and Keller) raised several
potential claims between them, but Hemby and Keller selected one
claim to actively litigate: the claim involving the witnesss
recantation. Once this claim was litigated to conclusion, there
was apparently nothing more to do (except appeal the superior
courts rejection of this claim).
But after the superior court decided the witness
recantation claim against their client, Hemby and Keller
announced that they had never actively investigated Jamess other
claims. In effect, Hemby and Keller told the court that they had
decided to litigate Jamess petition in piecemeal fashion, but had
refrained from telling the court of their intention until the
court issued its adverse ruling on the witness recantation claim.
Alaska Criminal Rule 35.1(f)-(g) appears to contemplate
that, unless the court allows a different procedure, all of a
petitioners claims will be investigated and pleaded by the time
the court schedules a hearing on the petition. In Jamess case,
however, the superior court effectively allowed Hemby and Keller
to bifurcate the litigation of Jamess petition by giving the
lawyers more time to investigate and pursue additional claims
after the court had already decided the witness recantation
claim.
Shortly after they secured this bifurcation of the
litigation, Hemby and Keller moved to withdraw from the case,
alleging that they had a newly-arisen conflict of interest. The
superior court granted this motion and appointed a new attorney
to represent James. It was this new attorney who filed a
statement under Criminal Rule 35.1(f)(2), declaring that James
had no colorable claims to present.
Under these unusual facts, James never had an attorney
(or a law firm) who reviewed all of his potential claims and then
selected one or more of them to be actively litigated. Rather,
Hemby and Keller (with the tacit approval of the superior court)
selected one claim to litigate while, at the same time, they let
Jamess other potential claims go unexamined. After the superior
court heard and rejected their one selected claim (the witness
recantation claim), Hemby and Keller withdrew from the case and
the superior court was obliged to appoint another attorney to
investigate Jamess remaining potential grounds for post-
conviction relief.
Under these circumstances, I agree with my colleagues
that the Griffin rule governed this new attorneys obligations to
James and to the court. The new attorneys assignment was to
review all of Jamess potential remaining claims and decide which
of them should be litigated. His decision was to litigate none
of them. This is not the type of tactical choice contemplated
[by this court in Tucker and by the Supreme] Court in Jones.5
Rather, it is the type of decision governed by Griffin.
The superior court had a duty to ensure that the new attorney
provided zealous representation to James. Because the new
attorney had had no hand in the prior litigation of the witness
recantation issue, and because the new attorney was solely
responsible for evaluating Jamess remaining potential claims, it
was incumbent on this new attorney to explain to the court why he
concluded that James had no further colorable issues to raise.
_______________________________
1 AS 11.41.436(a)(1).
2 AS 11.41.420(a)(3)(B).
3 See James v. State, Memorandum Opinion and Judgment
No. 3734 at 29 (Alaska App., December 24, 1997).
4 See Griffin v. State, 18 P.3d 71, 77 (Alaska App.
2001) ("[T]he 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.").
5 See Tucker v. State, 892 P.2d 832, 834 (Alaska App.
1995).
6 See Hensel v. State, 604 P.2d 222, 235 & n.55
(Alaska 1979); Brown v. State, 803 P.2d 887, 888 (Alaska App.
1990).
7 See Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct.
3308, 3312-14, 77 L.Ed.2d 987 (1983) (decision to forego weaker
arguments on appeal is part of effective appellate advocacy;
counsel is not required to raise every colorable claim); Tucker
v. State, 892, P.2d 832, 836-37 (Alaska App. 1995); State v.
Jones, 759 P.2d 558, 570 (Alaska App. 1988).
8 Griffin, 18 P.3d at 76 (Alaska App. 2001).
9 See Peterson v. State, 988 P.2d 109, 113-14 (Alaska
App. 1999).
10 Griffin, 18 P.3d at 77.
11 See AS 18.85.100(a) & (c); Grinols v. State, 10
P.3d 600, 618 (Alaska App. 2000).
12 See Griffin, 18 P.3d at 77.
13 See id.
1 Id., 18 P.3d at 77.
2 Id.
3 Id. at 836.
4 See id., 463 U.S. at 751-54, 103 S.Ct. at 3312-15.
See also Briones v. State, 848 P.2d 966, 978 (Haw. 1993) (an
attorneys informed decision on which issues to raise on appeal is
presumed competent); Williamson v. State, 852 P.2d 167, 169
(Okla. Crim. 1993) (It is the role of appellate counsel to
carefully select and develop the legal issues to be presented to
the court[; counsel need] not raise every non-frivolous issue
conceivable.).
5 Hertz v. State, 755 P.2d 406, 410 (Alaska App. 1988)
(concurring opinion of Bryner, C.J.).
