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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ERIC HOLDEN, | ) |
| ) Court of Appeals No. A-9797 | |
| Appellant, | ) Trial Court No. 3AN-06-7583 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2129 December 7, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark Rindner,
Judge.
Appearances: Eric Holden, in propria
persona, Wasilla, for the Appellant. Douglas
H. Kossler, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Amici Curiae: Joshua P. Fink, Public
Advocate, Anchorage; Margi Mock, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The Alaska Legislature has enacted a statute of
limitations, AS 12.72.020(a)(3) (4), that sets time limits for
filing a petition for post-conviction relief. The legislature
has also declared that an indigent defendant who files an
untimely petition for post-conviction relief is not entitled to
the assistance of counsel at public expense. See
AS 18.85.100(c).
The question presented to this Court is whether, when
an indigent defendant files a petition for post-conviction relief
that appears to be untimely under the rules set forth in AS
12.72.020, the Alaska Constitution nevertheless guarantees the
defendant a limited right to counsel: the right to have a court-
appointed lawyer investigate whether the defendant might be able
to claim the benefit of one of the exceptions or tolling periods
specified in that statute of limitations.
For the reasons explained here, we conclude that the
Alaska Constitution does guarantee this limited right to counsel.
Background facts
Eric Holden is an indigent prisoner who is
currently attempting to litigate a petition for post-
conviction relief in the superior court. In this
petition, Holden seeks relief from his convictions for
second-degree escape and fourth-degree assault.
This Court affirmed Holdens convictions on
direct appeal in Holden v. State, Alaska App.
Memorandum Opinion No. 4148 (November 10, 1999).
Holdens convictions became final on May 24, 2000, after
the Alaska Supreme Court denied Holdens petition for
hearing.1
Nearly six years later on May 2, 2006
Holden filed his petition for post-conviction relief,
accompanied by a request for court-appointed counsel to
assist him in litigating this petition.
Under AS 12.72.020(a)(3)(A), if a defendant
seeks direct appellate review of a criminal conviction,
and the conviction is affirmed, any petition for post-
conviction relief relating to that conviction must be
filed within one year of the date of the final
appellate court decision affirming the conviction.
Because Holden did not file his petition for post-
conviction relief until nearly six years after his
conviction became final on appeal, the superior court
dismissed Holdens petition for post-conviction relief
as untimely under AS 12.72.020(a)(3)(A). And, based on
the conclusion that Holdens petition was untimely, the
superior court denied Holdens request for court-
appointed counsel.
The question presented to this Court is
whether, before the superior court ruled on the
timeliness of Holdens petition, Holden was entitled to
have an attorney appointed at public expense for the
limited purpose of investigating whether Holden might
be able to claim the benefit of one of the exceptions
or tolling periods listed in AS 12.72.020.
Why we conclude that the Alaska Constitution guarantees
this limited right to counsel
In Grinols v. State, 74 P.3d 889, 894 (Alaska
2003), the Alaska Supreme Court ruled that indigent
defendants have a constitutional right (under the due
process clause of the Alaska Constitution) to the
assistance of counsel when litigating a first petition
for post-conviction relief. However, as explained
above, the Alaska Legislature has declared that these
indigent defendants have no right to counsel if their
petitions are untimely under AS 12.72.020.
The Grinols decision does not address the
question of whether the constitutional right to counsel
extends even to defendants who fail to file their
petitions for post-conviction relief within the time
limits established in AS 12.72.020. Indeed,
if a defendants petition is truly time-barred, there
would seemingly be nothing for an attorney to litigate.
But in cases where either the State or the
superior court identifies a defendants petition as time-
barred, the defendant has a crucial need for the
assistance of counsel. This need arises during the
litigation of the timeliness issue for if the
defendant loses this issue, the litigation is over.
More than thirty years ago, in Donnelly v.
State, 516 P.2d 396 (Alaska 1973), the Alaska Supreme
Court confronted a similar right-to-counsel issue
arising from a different aspect of post-conviction
relief law.
In Donnelly, the supreme court was forced to
address a problem created by their earlier decision in
Nichols v. State, 425 P.2d 247 (Alaska 1967). Nichols
held that an indigent defendant seeking post-conviction
relief was entitled to counsel at public expense to
assist them at the evidentiary hearing on their
petition. Id. at 255. The following year (1968), the
holding in Nichols was codified in former Criminal Rule
35(f) (enacted by Supreme Court Order No. 98, page 12):
Indigent Applicant. If the applicant
[for post-conviction relief] is indigent,
[and] the court determines that the
application shall not be summarily disposed
of on the pleadings and [the existing] record
... , but that the issues raised by the
application require an evidentiary hearing,
counsel shall be appointed to assist [the]
indigent applicant[.]
Thus, after the decision in Nichols
and the enactment of Criminal Rule 35(f),
Alaska law clearly provided that an indigent
petitioner for post-conviction relief was
entitled to the assistance of counsel at
public expense but only after the trial
court concluded that the petition presented a
prima facie case for relief.
In Donnelly, the supreme court
acknowledged that Criminal Rule 35(f) did not
go far enough that this rule was unlawful to
the extent that it conditioned a defendants
right to counsel on the trial courts
preliminary determination that the defendants
petition raised issues of arguable merit.
The supreme court explained that,
because a petition for post-conviction relief
can be dismissed on the pleadings, or on a
motion for summary judgement, petitioners
need the assistance of counsel when
formulating and investigating their claims
for relief:
It may be necessary, in order to develop
genuine issues, for the prisoner making [an]
application [for post-conviction relief] to
prepare supplemental pleadings and to
participate in the discovery procedures
permitted under the rule. It is therefore
essential that [the prisoner] be represented
by competent counsel in the event that he is
unable to afford an attorney. Only the
[assistance] of counsel will assure that
meritorious claims will be fairly presented
and full advantage taken of the procedures
and investigation contemplated by the rule.
... Because [post-conviction relief law]
requires [the] development of genuine issues
of fact in order to merit an evidentiary
hearing, the [right to] counsel ... must be
extended to require representation at the
time the initial application is filed.
Donnelly, 516 P.2d at 399.
In other words, as this Court noted
in Grinols, the supreme court held in
Donnelly that defendants [are] entitled to
the assistance of counsel, not just in
litigating petitions that survive[] summary
dismissal, but also during the initial
preparation and investigation of a
post-conviction relief case.2
We now return to the situation
presented in Holdens case.
Because of the time limitations set
forth in AS 12.72.020, and because
AS 18.85.100(c) denies the assistance of
counsel to defendants who are pursuing time-
barred petitions for post-conviction relief,
when an indigent defendant files a petition
for post-conviction relief that is arguably
time-barred, the defendant faces a situation
similar to the one that confronted the
indigent petitioner in Donnelly. The law
gives the defendant a right to the assistance
of counsel at public expense, but this right
is conditioned on obtaining a favorable
ruling from the trial court on the timeliness
issue. That is, the defendant is entitled to
the assistance of counsel only if they first
convince the trial court that their petition
is timely under the provisions of the
statute.
Resolution of the timeliness issue
can involve considerably more than a simple
comparison of calendar dates.
Under AS 12.72.020(a)(3)(A), the
timeliness of a petition for post-conviction
relief hinges on the date of the entry of
judgment of ... conviction or, if an appeal
was filed, the date on which the [appellate]
courts decision [became] final under the
Alaska Rules of Appellate Procedure. The
determination of these dates requires an
understanding of, and sometimes a legal
interpretation of, various provisions of the
Alaska Criminal Rules and the Alaska
Appellate Rules.
Moreover, AS 12.72.020(b) codifies
several exceptions to the limitation periods
specified in AS 12.72.020(a)(3) and (a)(4).
It is readily foreseeable that there will be
situations where legal expertise will be
needed to understand and apply these
exceptions.
For these reasons, we conclude that
an indigent defendant pursuing a first
petition for post-conviction relief is
entitled to the assistance of counsel for the
purpose of assessing (and arguing) whether
the petition is timely.
Our ruling on this issue was
foreshadowed by our decision in One v. State,
127 P.3d 853 (Alaska App. 2006).
In One, we confronted a situation
where an attorney appointed to represent a
petitioner for post-conviction relief sought
permission to withdraw and filed a
certificate of no arguable merit under
Criminal Rule 35.1(e)(2).3 This certificate
was based on the attorneys assertion that all
of the petitioners claims were time-barred
and that, therefore, there was no point in
investigating the underlying merit of those
claims. One, 127 P.3d at 853-54.
We held that, in such circumstances
that is, [w]hen ... an attorney appointed to
represent an indigent petitioner for
post-conviction relief concludes that the
petition stands or falls on the issue of
whether it is barred by one of the limitation
periods codified in AS 12.72.020(a)(3) the
attorney is obliged to investigate potential
defenses to the limitation period and, if
that investigation yields no colorable
defense to the limitation period, then the
attorneys no arguable claims certificate must
fully explain the attorneys investigation,
and the results of that investigation, to the
superior court. Id. at 856.
Our decision in One was grounded on
our earlier decision in Griffin v. State, 18
P.3d 71 (Alaska App. 2001). In Griffin, we
held that even though an attorney appointed
to represent an indigent petitioner for post-
conviction relief might properly move to
withdraw from the case if the petitioner had
no arguable claim for relief, the petitioners
constitutional right to zealous
representation would not be adequately
protected unless the attorneys no arguable
merit certificate contained a full
explanation of all the claims the attorney
ha[d] considered and why the attorney ha[d]
concluded that these claims [were] frivolous.
Griffin, 18 P.3d at 77.
In One, we applied Griffin to a
particular recurring situation: the
situation where a court-appointed attorney
files a request to withdraw under Criminal
Rule 35.1(e)(2)(C) after concluding that all
of the petitioners claims are frivolous
because they are time-barred. For present
purposes, the crucial aspect of our decision
in One is our conclusion that Griffin
requires attorneys to give a full explanation
of their statute-of-limitations analysis in
this situation.
Our conclusion in One was
implicitly premised on the idea that an
indigent petitioner for post-conviction
relief is entitled to the zealous assistance
of counsel when litigating the issue of the
petitions timeliness.
We now expressly affirm this
implicit premise: When an indigent
defendants first petition for post-conviction
relief is challenged as time-barred under
AS 12.72.020, the defendant has a
constitutional right to the assistance of
counsel when responding to that challenge.
Conclusion
The two decisions of the superior court
(refusing to appoint counsel to represent Holden,
and dismissing his petition for post-conviction
relief as time-barred) are REVERSED. The superior
court shall re-open Holdens petition for post-
conviction relief, and the superior court is
directed to appoint counsel to represent Holden
for the limited purpose of assessing and, if
necessary, litigating whether his petition for
post-conviction relief is time-barred under AS
12.72.020.
We do not retain jurisdiction of this case.
_______________________________
1 See Appellate Rules 507(b) and 512(a)(2)[b].
2Grinols, 10 P.3d at 622.
3See Griffin v. State, 18 P.3d 71, 75 (Alaska App. 2001),
where this Court interpreted Criminal Rule 35.1(e) to
require an assertion that all of the petitioners
potential claims had no arguable merit.
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