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Goldsbury v. State (06/18/2004) ap-1937
Goldsbury v. State (06/18/2004) ap-1937
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
JAMES T. GOLDSBURY, )
) Court of Appeals No.
A-8528
Appellant, )
Trial Court No. 1WR-02-018 Civ
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1937 June 18, 2004]
)
Appeal from the Superior Court, First Judi
cial District, Wrangell, Larry R. Weeks,
Judge.
Appearances: Michael P. Heiser, Ketchikan,
for the Appellant. Michael Sean McLaughlin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case has a tortured procedural history. James T.
Goldsbury filed a petition for post-conviction relief, and his
current attorney was appointed to represent him. After
investigating the case, Goldsburys attorney filed a certificate
conceding that Goldsbury had no arguable claim for relief.
Notwithstanding this concession, Goldsburys attorney proceeded to
appeal the superior courts dismissal of the post-conviction
relief action. Then, in his reply brief, Goldsburys attorney
conceded that Goldsbury has no non-frivolous issues to raise in
this appeal.
Although Goldsburys attorney has now twice conceded
(once to the superior court, and now to this Court) that
Goldsbury has no non-frivolous claims for relief, we have
independently reviewed the record of the post-conviction relief
proceedings, and we conclude that procedural error was committed.
The superior court failed to require Goldsburys attorney to give
a detailed explanation of why the attorney concluded that
Goldsbury had no arguable claims for relief. We accordingly
vacate the decision of the superior court and remand this case to
the superior court for further proceedings.
In Griffin v. State, 18 P.3d 71 (Alaska App. 2001), we
addressed and clarified the obligations placed on an attorney who
is appointed to represent an indigent petitioner for post-
conviction relief. Alaska Criminal Rule 35.1(e)(2)(B) declares
that if the attorney, after investigating the case, concludes
that the defendant has no non-frivolous claims for post-
conviction relief, the attorney must file a certificate declaring
this fact. However, when the attorney files this kind of
certificate, Criminal Rule 35.1(f)(2) requires the superior court
to independently assess the potential merits of the defendants
case. In Griffin, we concluded that it was impossible for the
superior court to carry out this duty unless the attorneys
certificate contained substantially more than a bare-bones
assertion that the defendant has no arguable claims for relief:
[I]f the [defendants] attorney is
permitted to file a certificate containing
only the four bare assertions listed in
[Criminal] 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).
. . .
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 attorneys
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.
Griffin, 18 P.3d at 76-77.
The State concedes that the
certificate filed by Goldsburys attorney does
not satisfactorily explain why the attorney
concluded that Goldsbury had no arguable
claim for post-conviction relief. The test
is whether the attorneys certificate
contained sufficient detail to allow the
superior court to fulfill its duty to
independently assess whether Goldsbury had
any potentially arguable claims for relief.
We have reviewed the certificate, and we
conclude that the States concession of error
is well-founded.1
For instance, Goldsburys initial
pro se petition for post-conviction relief
contained assertions that his trial attorney
(1) failed to cross-examine one or more
police officers concerning their personal
involvement with other members of Goldsburys
family, (2) failed to investigate whether
there was evidence to corroborate Goldsburys
version of events, (3) waited until the
eleventh hour to begin work on Goldsburys
case, and then (4) spent only three hours
preparing for trial. The no merit
certificate filed by Goldsburys post-
conviction relief attorney dealt with all of
these allegations in a single paragraph:
[Goldsbury] has made several ineffective
assistance [of counsel] claims related to
evidence and witness statements produced at
trial. I consulted with [the] defendants
trial attorney ... , and she recalls having
reasons for doing or not doing the actions
set forth by [the] defendant. For instance,
she decided that [she] could not convince a
jury that the police were lying. All the
questionable actions appear to be tactical
decisions and [these] actions would not
likely [have] change[d] the outcome of this
matter. [Under Alaska law, a] defendant has
the burden of proving his counsels lack of
competence by clear and convincing evidence.
... Accordingly, I do not believe [that]
these claims could succeed.
This sort of conclusory explanation
does not allow the superior court to
independently and meaningfully evaluate the
potential merit of Goldsburys claims. The
attorneys explanation failed to address any
of Goldsburys claims in an identifiable way.
For instance, when Goldsburys attorney
asserts that the trial attorney decided that
[she] could not convince a jury that the
police were lying, it is impossible to tell
whether the trial attorney was responding to
Goldsburys claim that she failed to cross-
examine the police officers about their
personal involvement with members of
Goldsburys family or, instead, Goldsburys
claim that the trial attorney failed to
investigate whether there was evidence to
corroborate Goldsburys version of events.
Turning to Goldsburys claim that
his trial attorney worked on the case for
only three hours just before trial, the post-
conviction relief attorneys certificate did
not even identify this claim individually.
Moreover, the attorney attempted to dispose
of this claim with one conclusory sentence,
All the questionable actions appear to be
tactical decisions [of the trial attorney,]
and [these] actions would not likely [have]
change[d] the outcome of this matter.
The post-conviction relief attorney
then addressed Goldsburys claim that the
district attorney made false statements in
the States sentencing memorandum (false
statements which Goldsburys trial attorney
apparently failed to rebut):
[Goldsbury] also claims that [the
district attorney] made false statements in
the States Sentencing Memorandum. It appears
that none of the statements made in the
sentencing memorandum are deliberately false
or misleading. [Moreover, this] information
was not given to [the] jury[, nor did it
affect the defendants] conviction in any way.
From the attorneys certificate, it is
impossible to determine what statements
Goldsbury believed were false, and it is
likewise impossible to determine how or why
the post-conviction relief attorney concluded
that none of Goldsburys assertions of falsity
had any arguable merit. Indeed, only one
thing is clear from this paragraph of the
attorneys certificate: the attorney failed
to understand that Goldsbury did not have to
prove that the jurys decision was affected by
false statements; rather, Goldsbury could
obtain post-conviction relief if he showed
that the sentencing judges decision was
affected by false statements.
In short, the attorneys certificate
was so conclusory, so lacking in factual
detail and explanation, that it was
impossible for the superior court to fulfill
the duty imposed by Criminal Rule 35.1(f)(2):
the duty to independently assess the
potential merit of Goldsburys claims. The
superior court should not have dismissed
Goldsburys petition for post-conviction
relief based on this certificate. Rather,
the court should have required Goldsburys
attorney to provide a more detailed
explanation of the facts of the case and the
reasons why the attorney concluded that these
facts gave rise to only frivolous claims.
Accordingly, we VACATE the decision
of the superior court and we reinstate
Goldsburys petition for post-conviction
relief. This case is remanded to the
superior court for further proceedings
consistent with Griffin and with this
opinion.
In addition, the superior court
should consider whether, given the
circumstances of this case, a new attorney
should be appointed to represent Goldsbury
during these further proceedings.
_______________________________
1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that an appellate court must independently
assess the States concession of error in a criminal
case).
